1. ZAFFAR HUSSAIN MIRZA, J.---In these two civil appeals the main question of law which arises for determination is whether an order passed by the Controller in execution proceedings of an order of eviction under section 17 of the Baluchistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as `the Ordinance') is appealable under any provisions of the said Ordinance.
2. It will be appropriate to briefly enumerate the facts leading to these appeals.
3. Civil Appeal No.17/0 of 1985 The dispute in this appeal relates to a house situated in Pashtoonabad, Quetta. On 31st May, 1981, Muhammad Hanif, respondent herein instituted an ejectment application against (i) Abdul Qadeer,
(ii) Abdul Salam and (iii) Haji Muhammad Rasul, in the Court of Senior Civil Judge, and Rent Controller, Quetta. According to the case set up by the respondent in the ejectment application, he was the owner of the house in question which was demised to Abdul Qadeer in July, 1977. He further alleged that the said Abdul Qadeer transferred the possession of the house to Abdul Salam and Haji Muhammad Rasul as sub-tenants, and himself disappeared from the scene. As no rent was paid by the main tenant and the other two persons in occupation were unauthorised sub-tenants, the respondent sought eviction order against them.
4. Haji Muhammad Rasul alone filed a written statement and contended that his brother Haji Abdul Wafi Khan the present appellant herein, had purchased the said property on 10th May, 1978, from Abdul Salam and was living in the house alongwith the said Haji Muhammad Rasul.
5. In the events that happened after filing the aforesaid written statement Haji Muhammad Rasul also did not pursue his defence and remained absent from the proceedings with the result that in absence of any contest the respondent was allowed to produce evidence which remained unrebutted. Notwithstanding this the learned Controller came to the conclusion that there was a dispute of ownership and title over the property and as the respondent had failed to establish his right of ownership, the eviction application was not maintainable. Accordingly the learned Rent Controller dismissed the application on 31st August, 1980.
6. Being aggrieved respondent filed an appeal in the High Court which proceeded ex parte against the respondent shown therein. The appeal was allowed but no specific order of eviction was passed by the. Learned Judge in the High Court in his judgment dated 16th May, 1983.
7. Thereafter respondent (landlord) filed an application for execution of the eviction order before the Controller. Pending the execution proceedings, Haji Abdul Wali Khan the appellant herein appeared before the Controller and filed an objection petition on the ground that he was the owner of the superstructure of the house in respect of which eviction application had been filed, as he had purchased the same from Abdul Salam through agreement, dated 10th May, 1978, His case was that he had raised the then existing superstructure and in its place erected a new construction consisting of seven shops on the front side with a residential house at the back, which is in his occupation. He, therefore, resisted the execution application as not maintainable against him as he was holding the property in his own right.
8. The objections were, however, rejected and the petition of the appellant (intervenor) was dismissed by the Controller vide order dated 18th August, 1983. As a result the execution of the eviction order was directed to proceed.
9. The appeal taken by the appellant herein, was dismissed by the first Additional District Judge, Quetta, on 31st December, 1983, who held that the appeal was not maintainable. It is important to note the grounds on which the appeal was dismissed as not maintainable. The reasons that prevailed with the learned Additional District Judge may be reproduced from the judgment as hereunder:----- "Prior to the amendment of section 17 it was permissible that every order passed by the Controller under sections 10, 13, 13-B and 15 of the Ordinance shall be executed by the Civil Court as if it were a decree of Civil Court therefore, all such orders of the executing Court were appealable or revisable in accordance with the provisions of C.P.C. But after the amendment under section 17 of the Ordinance in the words that every order passed by the Rent Controller under sections 10, 13, 13-B and 15 shall be executed by the Controller as if it were a decree of Civil Court means that the order of the Controller in execution proceedings will be governed by the provisions of the Ordinance and not by the provisions of C.P.C."
10. On the aforesaid reasoning as section 15 of the Ordinance did not expressly refer to an order passed under section 17, among the category of orders made appealable the learned Additional District Judge held that no appeal was competent against an order passed in execution by the Controller.
11. Ultimately the appellant (intervenor) went up before the Baluchistan High Court in revision against the order passed by the learned Additional District Judge. The learned Single Judge who dealt with the civil revision filed by the appellant upheld the view taken by the learned Additional District Judge that on the amendments effected by the 1980 Ordinance, no appeal was competent and therefore, appeal filed by the present appellant was correctly dismissed as not maintainable.
12. However, the learned Single Judge further also dealt with the objections taken by the appellant to the executability of the order of eviction against him and affirmed the conclusion reached by the Controller that the objections were not tenable. Learned Judge also relied upon Zahurul Hasan v.
13. Mst. Ruqqia Begum and 4 others PLD 1981 SC 112, in which this Court held that a revision under section 115, C.P.C. Is not maintainable in respect of orders passed under the West Pakistan Urban Rent Restriction Ordinance. In this view of the matter the learned Single Judge dismissed the civil revision filed by the appellant by his judgment, dated 28th November, 1984.
14. Leave was granted by this Court against the aforesaid judgment of the learned Single Judge to consider the following points:-- "(i) Whether or not Controller while executing a decree within the purview of section 17 of Baluchistan Urban Rent Restriction Ordinance, 1959, enjoys all the powers of a Civil Court.
(ii) Whether or not, the Controller during execution of an ejectment order is competent to hear all objections as regards executability of decree in accordance with provisions of Order XXI, C.P.C.
(iii) Whether or not appeal in respect of the order passed by the Controller in the exercise of powers as Civil Court, would lie to the forum provided for under Civil Procedure Code.,
(iv) In the event that appeal against the order of Controller exercising powers of Civil Court is not found to be competent under the provisions of Civil procedure Code, was it obligatory on the learned District Judge to return the appeal for presentation to the proper Court, and whether or not in such circumstances, in view of apparent anomaly and possibility of wrong interpretation that period spent in prosecuting said proceedings required to be excluded.
(v) Whether the Rent Controller and/or the High Court should not have admitted evidence on question of ownership before rejecting the objection to the execution and also?
(vi) Whether in case the appeal in this Court falls, the petitioner/objector (appellant) can be and should be permitted to seek remedy from the Civil Court--if so, whether without vacating the house or after surrendering the possession to the respondent."
15. Civil Anneal No 25-Q of 1987 Habibullah, respondent herein, is the transferee of residential premises bearing Municipal Nos.10- 1/3-1 and 10-1/35 situated on Ashram Road, Quetta, which was formerly evacuee property. The respondent filed an ejectment application against the appellant in the Court of Civil Judge and Rent Controller, Quetta. The appellant resisted the eviction application. However, the Controller by his order dated 13th February, 1974, struck off the defence of the appellant on account of non- compliance with the order for deposit of rents under section 13(6) of the Ordinance and ordered his eviction. The first appeal filed by the appellant having been dismissed by the learned District Judge he filed a second appeal before the High Court of Baluchistan which also met the same fate vide judgment dated 13 June, 1977.
16. The respondent (landlord) then filed an execution application before the learned Controller, who issued writ of possession on 5th July, 1977, with the result that the order of ejectment was satisfied as possession of the premises in dispute was handed over to the respondent.
17. However, on 16th December, 1982, the respondent filed another execution application praying for possession of an area of 822 sq. Ft. Of land allegedly forming part of courtyard of the house in respect of which the ejectment order was passed. The appellant objected to this second application for execution on the plea that the respondent had not been transferred any area as forming the courtyard of the houses which were the subject-matter of the ejectment proceedings and on the ground that the order of ejectment had already been fully implemented.
18. As the learned Controller did not f accept the objection preferred by the appellant vide order dated 6th November, 1984, he filed a civil revision before the learned District Judge, Quetta, under section 115, C.P.C., which he subsequently with drew as the same was incompetent. The learned Controller again took up the execution proceedings and passed an order dated 11th February, 1987, directing that the execution proceedings should continue for the delivery of possession or the additional area of land claimed by the respondent.
19. Against the last-mentioned order, dated 11th February, 1987, an appeal under section 15 of the Ordinance was taken by the appellant before the Baluchistan High Court. A question of theth competency of appeal before the High Court under section 15 of the Ordinance was raised and it was held by the learned Single Judge vide judgment, dated 2nd March, 1987, that the appeal was not competent, on the same line of reasoning as in the case hereinabove stated i.e. That there was no provision of appeal in section 15 of the Ordinance from any order made under section 17 thereof.
20. Leave to appeal was granted in this case also in view of the leave already granted in Civil Appeal No.17-Q of 1985.
21. Mr. Khalid M.Ishque learned counsel appearing for respondent in Civil Appeal No.17-Q of 1985 mainly addressed on the question of law arising for determination in these appeals. According to him neither an appeal nor a revision is competent before the High Court against an order passed under section 17, in view of the changed position of law after the amendment of the Ordinance by the Amending Ordinance III of 1980. .
22. So far as the competency of revision against an order passed under section 17 is concerned the position seems to be settled by the judgment of this Court in Khadim Mohy-ud-Din and another v.
23. Ch. Rehmat Ali Nagra PLD 1965 SC 459 in which while interpreting the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 (which is in pari materia with the statute applicable in this case), it was held that the powers conferred on the Controller are executive in nature, although some of his functions are judicial in character but as he is not required to act judicially, this Court held that while acting under the Ordinance the Controller does not act as a Court. It, therefore, follows that as the revisional jurisdiction of the High Court is governed by section 115, C.P.C., the same only extends to orders passed by the subordinate Court and not to the order passed by the Controller which is not a Court. In Zahurul Hasan v. Mst. Ruqqia Begum and others PLD 1981 SC 112, also it has been held that the order of the Rent Controller is not liable to be questioned in revision under section 115, C.P.C.
24. Therefore, the only question remaining to be determined is whether an appeal against such an order passed under section 17 is competent. It is common knowledge that prior to the amendment of the law in Baluchistan by the Ordinance of 1980, appeals were filed against orders passed in execution under section 17 of the Ordinance which was in the following terms:-- "Execution of orders.---Every order made under section 10 or section 13, and every order passed On appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
25. In view of the foregoing provisions an order passed under section 13 of the Ordinance was taken to a Civil Court for execution and since an order passed by a Civil Court in execution proceedings was appealable in the normal hierarchy of Civil Courts (section 104(1)(ff), C.P.C.), appeals were entertained and determined. However, by the amending Ordinance a radical departure in the language was made with the result an order passed under section 10, section 13, section 13-B, and every order passed in appeal under section 15, was `to be executed by the Controller as if it were a decree of Civil Court'. It may be observed that similar amendment was effected in the Punjab Urban Rent Restriction Ordinance in section 17 by the Punjab Ordinance of 1979 but there corresponding amendment was effected in section 15 relating to appeal with the result that every final order of the Controller on an application made under the Ordinance was made appealable, so that specified sections of the Ordinance previously appearing in section 15 were taken away. The effect of such language qua the Punjab Urban Rent Restriction Ordinance was that an order passed under section 17 by the Controller was also appealable under section 15. The position in Baluchistan is, however, different, because no corresponding change similar to the Punjab Ordinance was effected in section 15(1) which reads as under:-- "15. Appeal.---(1) Any party aggrieved by an order of the Controller finally disposing of an application made under section 4, section 10, section 12, section 13 of this Ordinance may, within thirty days of the date of such order, prefer any appeal in writing to the High Court."
26. It will be observed that orders of the Controller under the sections specified therein, namely, section 4, section 10, section 12 and section 13 only were made appealable. Section 17 does not find mention amongst the enumeration of sections listed in connection with appealable orders. It was accordingly urged that reading section 15 and section 17 of the Ordinance together, the conclusion is inescapable that under the changed position of the law, since the execution proceedings are no longer entertained by the Civil Court but by the Controller and since an order passed under section 17 is not expressly made appealable, no appeal can be entertained as heretofore under the existing law.
27. Learned counsel placed strong reliance on this line of reasoning by seeking support from Muhammad Arif v. Mst. Amina Begum and another PLD 1990 SC 288. In the latter case this Court considered the effect of the insertion of the new section 13-B in the Ordinance, and in identical circumstances as in the present case, the non-mention of an order passed under the said section, among the sections of the Ordinance, specified in section 15 of the said Ordinance. The said section 13-B was also inserted by Baluchistan Ordinance III of 1980 and it provided a summary procedure for eviction of tenant where the landlord is a salaried employee, widow or a minor orphan (somewhat similarly as provided by section 14 of the Sindh Rented Premises Ordinance. 1979). This Court held that an appeal under section 15 did not lie against an order passed by the Controller under section 13-B. The argument that an order passed under section 13-B was, indeed finally passed under section 13, and therefore, an appeal lay under section 15 was repelled on the reasoning as appears hereunder:---- "The provisions contained in section 13-B are fairly detailed and can be treated, by and large, as furnishing self-contained small Code for the cases covered thereunder. The procedure provided therefore is also of a summary nature. After the requisite notice from the landlord side application is entertainable by the Rent Controller who also has been empowered to pass final orders under the said section 13-B. That being so, the argument advanced by the learned counsel for the respondent and accepted by the High Court in the impugned judgment, loses force. Independent of section 13 final orders under section 13-B have been visualised and they are in fact passed by the Controller under the said provisions and not under section 13."
28. It was finally concluded, that the Legislature had intentionally omitted to include amongst orders appealable under section 15 the orders passed under section 13-B- on account of the subject- matter thereof.
29. On the other hand it has been urged on behalf of the appellant by Mr. Yahya Bakhtiar and Mr. Abdul Hafeez Lakho, that the legal fiction whereby the order passed by the Controller is executable as decree under section 17, does not extend merely to attract the procedure for the execution of the decree passed by a Civil Court, but would also extend to include the appeals provided in the C.P.C.
30. Against an order passed in execution of Civil Court decree. In this behalf reliance has been placed on Adaikappa v. Chandrasekhara PLD 1947 PC 279, some observations in Muhammad Yasin v.
31. Sheikh Ghulam Murtaza and another PLD 1988 SC 163, Malik Muhammad Shah v. Muhammad Saleem PLD 1982 Lah. 702 and Naik Alam v. District Judge and others 1984 SCMR 1168. Reliance has also been placed on Bashir Ahmad v. Muhammad Umar 1983 SCMR 469.
32. It may at the outset be stated that right of appeal is not a matter of inference or implication from the provisions of a statute but such a right must be given by an express enactment. However, there is also authority for the view that if a matter is placed within the jurisdiction of an ordinary Court, as for instance an order passed by a special Tribunal is treated as an order of regular Court for certain purposes then the right of appeal is attracted under the general law. Thus, this Court in Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 referred to the dictum laid down by the House of Lords in the case of National Telephone Company Ltd. v. Postmaster-General 1913 AC 546 as under:----- "When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court arc to attach, and also that any general right to appeal from its decisions likewise attaches."
33. In such a case even though the special statute may make 'no provision for an appeal, once the ordinary Court is seized of a matter-entrust ed to it by the special law then unless there is anything contrary contained in such enactment the ordinary incidents of appeal and revision available against the decision of such Court will be available. In the English case of National Telephone Company Ltd, v. Postmaster-General (supra) Lord Atkinson explained the underlying principle as follows:-- "It is not, in substance, in my view, at all a question of giving a right of appeal by implication. It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents including a right of appeal, to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law."
34. The crucial point to note in this regard is that the dictum quoted above is attracted in case of a Court of law already established, the decisions of which are appealable under the general .Law.
35. That was precisely the case before the amendment under consideration, because the Controller's order was to be executed by a Civil Court. It was, therefore, that the right of appeal against orders passed in execution was availed under the C.P.C. (not the Rent Ordinance). Now the Controller passes the order of eviction under section 13 and he himself is required to execute the same under the amended provisions of section 17. Therefore, the principle hereinabove stated is not attracted in such a case.
36. It is, therefore, not possible to agree with the contention on behalf of the appellant that even after the change of forum for purpose of execution from the Court to the Controller, under the amended provisions of section 17 by the fiction created on account of the use of the words `as if it was a decree of the Civil Court', the remedies by way of appeal would be available as in the case of an order passed in execution by a Civil Court. There can be no cavil with the proposition that the legal fiction by the device of asifism, the procedural provisions with regard to the execution of a decree by the Civil Court are attracted as held in Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163. In that case it was held that as the power to execute an order passed by the Controller has been conferred on him, in the manner of a decree of a Civil Court, it follows, on the ordinary rule of interpretation that all powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller.
37. But that does not mean that the legal fiction can further be extended to the right of appeal provided in respect of orders of that nature passed by a Civil Court under the C.P.C. That would amount to claiming a right of appeal by implication which, as already stated, is against the settled principle of law. Additionally even on the principle with respect to the right of appeal the special enactment, namely, the Baluchistan Urban Rent Restriction Ordinance, is a complete Code, which would now govern all orders passed by the Controller. The case of Adaikappa v. Chandrasekhara PLD 1947 PC 279 also does not advance the argument of the learned counsel for the appellant, for, in that case the rule laid down was that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts arc governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under special statute which does not interns confer a right of appeal. This rule is in consonance with the rule already referred to as propounded in National Telephone Company Ltd. v. Postmaster-General (supra). It presupposes the conferment of additional jurisdiction upon a Court of law governed by the ordinary rules of procedure. The rule laid down does not relate to special Tribunal or persona designata as a Controller. The case of Malik Muhammad Shafi v.
38. Muhammad Saleem PLD 1982 Lah. 702 is of no assistance as to the question of maintainability of appeal, because it was held therein that an application under Order XXI, Rule 100, C.P.C. Would be competent before the Controller for restoration of possession by a person against whom ejectment order was not made and he was holding the possession in his own right at the time he was dispossessed in execution of the order. This decision is within the dictum laid down by this Court in the case of Muhammad Yasin (supra) referred to above. As the view taken in the Lahore case is in conflict with some other judgments of the same Court, it is under examination by this Court as leave has been granted by order which is reported in Naik Alam v. District Judge and others 1984 SCMR 1168. The case of Bashir Ahmad v. Muhammad Umar 1983 SCMR 469, is not relevant to the question under consideration.
39. What then was the object of the Legislature in enacting the amendment in question, in the provisions of section 17? One was obviously to authorise the Controller himself to execute his own or appellate orders passed under the specified sections of the Ordinance, instead of continuing the existing position, whereby the jurisdiction to execute such orders was vested in the Civil Court, having territorial jurisdiction in the area. So the one obvious purpose underlying the amendment was to change the forum. But with the change of forum for execution, the other possible consequence would be to take away the right of appeal since, no consequential amendments were effected in section 15, so as to include the order passed under section 17 by the Controller as an appealable order. So the important question that agitates the mind is whether the legislature intended to abolish the right of appeal that already existed, by bringing about amendments in a provision (section 17) which does not relate to right of appeal. In other words, did the Legislature intend to take away the right of appeal by implication?
40. It may be mentioned here that the Baluchistan amendments effected in various provisions of Baluchistan Urban Rent Restriction Ordinance, '1959, follow largely word to word, similar amendments made by the Punjab Ordinance IX of 1979, except in regard to section 15. In the Punjab a general right of appeal has been given against any order passed by the Controller under the Ordinance specifying the sections. The result is that an order passed by the Controller in execution under section 17 as amended, is undoubtedly appealable as other orders including the order under section 13. Therefore, no difficulty has arisen under the Punjab Amendment Ordinance with regard to right of appeal regarding orders passed in execution. However, since specific sections have been mentioned in the Baluchistan Ordinance in section 15 as appealable orders, without including section 17, the question of interpretation has arisen as to the right of appeal in respect of such order.
41. Before considering that question it is necessary to examine the nature of the power of execution which is the subject-matter of section 17. In our jurisprudence, the concept of execution is associated with the execution of decrees and orders, under the Code of Civil Procedure. This Code makes a distinction between a `decree' and an `order' which terms are separately defined. For our purpose it is sufficient to point out, that where an adjudication is a `decree', then unless expressly provided otherwise, a first appeal invariably lies therefrom and a second appeal also lies on the grounds mentioned in section 100, C.P.C. However, where an adjudication is an `order' as defined in section 2(14), C.P.C., no appeal lies therefrom unless it is one of the 'appealable orders' specified in section 104 and Order XLII, Rule 1 of the Code, and no second appeal lies in any such case. Under section 36 the provisions of the Code relating to execution of decrees, have been made applicable to execution of orders. The principle underlying the provisions of that section is that every Court has an inherent power to have its orders carried out or enforced, otherwise the orders would be a mere farce. It is in this context that the. Legislature has empowered ` the Court executing the decree to determine all questions relating to execution, discharge or satisfaction of the decree and not by a separate suit. It has been held that the object of this section was to save unnecessary expense and delay; and to E afford relief finally, cheaply and speedily without the necessity of a fresh suit.
42. However, that section deals with questions that arise between the parties to the suit in which the decree under execution, was passed. The Code of Civil Procedure made special provisions laying down the procedure for third party's claim to possession in his own right, against whom a decree for possession cannot be enforced, by Order XXI, Rules 100 and 101.
43. The procedure in the proceedings in a Civil Court, which are governed by the Code of Civil Procedure, in this regard in the matter of claims by third parties, has undergone a radical change on account of amendments made therein, by Ordinance XII of 1972. Previously an order made under Rule 101, relating to the claim of the third party was subject to the right of the aggrieved party to institute a separate suit to establish his right to the present possession of the property. But after the aforesaid amendments, by the substitution of Rule 103 of Order XXI, all questions arising as to title, right or interest in, or possession of immovable property, inter alia, under Rule 100, are to be adjudicated upon by the executing Court and not by a separate suit. Accordingly, although where the order under Rule 100 relating to a third party claim, before the amendment was not appealable, now after the amendments by a deeming clause in section 2(2), the determination of such a question is a decree and hence appealable as such.
44. That indeed would have clearly been the position with regard to the execution of the order of a Controller under section 17 of the Ordinance before it was amended in 1980, for the simple reason that the order was to be executed by a Civil Court under a legal fiction as a decree of that Court.
45. The procedural provisions contained in Rules 100 and 101 of Order XXI are a part of the procedural law relating to execution of a decree and as held in Mst. Khurshid Begum v. Mrs. Ghulam Kubra 1982 SCMR 90, can be invoked in execution of an order passed by the Controller.
46. As already discussed, as a result of the change in law by the amendment, the orders passed under section 17 in execution proceedings by the Controller, so far as the right of appeal is concerned, are not regulated by the remedies provided in the Code of Civil Procedure. If the view canvassed on behalf of the respondents is adopted, obviously the decision of the Controller on the question of the rights of third parties, who were not made parties to the ejectment application, will be final and so would be the position of the persons who were parties to the ejectment application, as regards all questions relating to execution, discharge or satisfaction of an order of ejectment.
47. The question arises whether the Legislature intended to make the Controller the final authority in all such matters. In order to answer this question as observed earlier the matter depends on the nature of the power of `execution'. In this behalf, it will be instructive to further refer to the following remarks in Volume 30, American Jurisprudence, 2nd Edition - Executions - Article-I at page 445: "Generally speaking, an execution is a remedy afforded by law for the enforcement of a judgment.
48. It is the means by which a judgment is made effective. Its object is to obtain satisfaction of the judgment on which the writ is issued. Hence, an execution has been aptly termed `the fruit and end' of a law suit.
49. An execution is not an action, but it is included in the phrase `process in an action'. It is a judicial writ issued to an officer authorizing and requiring him to execute the judgment of the Court."
50. It is further observed in the same Article that "the term `execution' is not, however, always limited to the writ, but may be used in broad sense to embrace all of the appropriate means to execution of the judgment". In this connection following important statement of law at page 4.16 is noteworthy:- - "A case in which an execution has been issued is regarded as still pending, so that all proceedings on the execution are proceedings in the suit."
51. With regard to the trial of a third person's claim in execution proceedings the following general observations are made in the same volume of American Jurisprudcncc in Article 106 at page 500: "Under early law, the remedy in the case of a levy of execution upon property, ownership of which was claimed by a third person, was by a proceeding known as a sheriff's inquest. But detailed and comprehensive schemes for the assertion of claims by third persons have been developed by statutes and rules of Court. Under some statutes or rules, the claimant may be compelled to try his right in the manner prescribed by statute, under others, the claimant is free to resort to his common-law remedies and may not be compelled to submit his claim to be investigated by the statutory method. Where, however, the claimant elects to proceed by a trial of the right to the property, he waives his privilege of suit at common law. Moreover, if he elects to pursue the statutory remedy, the statutory incidents of that remedy become applicable and he has no right to complain if he is subjected to all the conditions upon which the 'statute grants the remedy. The statutory procedure is regarded as providing a complete and adequate remedy if the property levied on belongs to the claimant, provided, of course, that the proceedings are instituted and conducted in accordance with the governing law."
52. Speaking of the purpose of the statutory procedure for determining adverse claims to property subjected to levy of execution the authors state the law as hereunder:-- "In the promulgation of laws or rules for the trial of a third person to property seized in execution, legislatures are said to have two objects in view. One object is to enable the claimant to have the superiority of his claim over that of the execution creditor determined expeditiously, without the necessity of resorting to an action for recovery of the property or its value, and, if his right is found to be superior, to be given either (1) possession or (2) security for the recovery for damages sustained as a result of the execution. The other and principal object of the legislation is to furnish protection to an officer at law who might make a mistake in the discharge of his duties. In most instances, the statute is not intended as a means of acquiring or confirming a title to the property involved."
53. The aforesaid principles and enunciation of law from the American Jurisprudence, having evolved basically from the English Practice and Procedure, are of considerable relevance to our law. It will be seen that the original unamended provisions of the Code of Civil Procedure as it stood before 1972, were based on these principles. Accordingly under the old Rule 103 of Order 21 Code of Civil Procedure a claimant whose claim was rejected, could institute a suit to establish the rights that he claimed. It is in this manner that the general remedy was kept intact and the Court of plenary jurisdiction retained the power to adjudicate the question of rights in the property and pass conclusive judgments. In such a scheme of law, the procedure provided for a third person's right to resist execution on the plea that he holds the property in his own right, was for the purposes as mentioned hereinabove, namely (i) to provide an expeditious remedy to a person having superior right to possession to property and not bound by the decree under execution; and (ii) to furnish protection to the officer of Court executing the process of Court against mistakes bona fide committed in the discharge of his duties. However, it was not the ordinary mode of determining questions of title to the property which is the subject-matter of execution proceedings. Thus, it has been stated in Article 125 of American Jurisprudence Volume 30 at page 854:----- "The effect of a finding in proceedings to try the right of property subjected to execution depends upon the provision of the statute authorizing such proceedings. In most instances, the statute is not intended as a means to acquire or confirm a title to the property involved; the judgment is not exclusive as to ownership of the property, and the title thereto is not disturbed thereby. Indeed, the proceedings have been held not to conclude the rights of the parties with respect to any matter not involving the execution officer's responsibilities."
54. However, under the Code of Civil Procedure that position has changed now. A party who prefers the claim has an exhaustive and exclusive remedy which has the effect of conclusively determining all questions of title or right to possession between him and the other parties to the suit in which the decree under execution was passed. But as already discussed above, the scheme and the statutory provisions regarding third person's claims as presently obtaining in the Code of Civil Procedure have no bearing on the powers and procedure of execution by the Controller under section 17.
55. Nevertheless, as far as the point in issue in the present appeal, it is noteworthy that in principle the execution of the order of Controller or Appellate Authority under section 17, is a proceeding of the same nature as originally commenced before the Controller - in other words a continuation of the same proceedings in which the order under execution was passed and not a sui generis proceedings in the nature of independent original proceedings. It, therefore, follows that the order passed disposing of execution of an order under section 13 for ejectment of a tenant, will also be an order under section 13 for which an appeal is provided by section 15 of the Ordinance. The non- mention of an order under section 17 expressly in section 15 of the Ordinance is accordingly immaterial.
56. This conclusion is also consistent with the principle of interpretation relating to appeals. In Volume 4 Corpus Juris Sccundum (4 C.J.S.) Article 18 at page 103, the following principles arc laid down:-- "(i).... It is usually held that a statute or constitutional provision conferring, extending or regulating the right of appeal should be liberally construed for the furtherance of justice, and in order to preserve and maintain the right of appeal, and if such a statute is succeptible of different meanings it will be construed, and the doubt will be resolved, in favour of the right to appeal;
(ii) ------.a statute will not be construed as taking away a previously existing right of appeal unless the legislative intent to that effect clearly appears."
57. The other aspect to be taken note of is that the amendment in section 17 is of a procedural nature and the principle is that:-- "If a special Act merely relates to the procedure and does not confer a new right or afford a new remedy, a general statute giving a right of appeal in special proceedings will apply, and it has been held that where an order of a Court assuming to act under the special jurisdiction conferred by a statute goes beyond the scope of the limited authority of the Court, an appeal lies, as far as the order is unauthorized, although the statute makes no provision for an appeal or excludes an appeal."
58. There is also authority for the view that a right of appeal can be created by clear implication (4 C.J.S. Page 102). In this context reference may be made to section 15(5) of the Ordinance which reads as follows:-- "(5) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law."
59. This is an ouster clause and confers finality on the orders of the Controller. So if the Controller decides a claim of a third party under section 17, even the Civil Court's jurisdiction is barred if the order is otherwise passed within the ambit of his jurisdiction by the Controller. Can such a result be countenanced; that a third party's right to possession or title is adjudicated upon and he is deprived of any right of appeal or other remedy? It is difficult to attribute such an unjust or harsh intendment to the legislature, that a Tribunal of limited jurisdiction be entrusted with conclusive jurisdiction to determine rights in immovable property without a right of appeal, when in similar circumstances a Civil Court's decision under the Code of Civil Procedure was appealable and now has effect of an appealable decree. In 4 C.J.S. Article 22-C at page 117 the principles of interpretation of Statutes dealing with special statutory proceedings it has been stated:-- "Nevertheless, an intention to deny the right of appeal, because of a failure or omission to provide therefore in a special Act, will not lightly be assumed or inferred."
60. We are also dealing with interpretation of amendment of a procedural provision, accordingly in the absence of clear intendment, it cannot be held that the object of the enactment was to take away the right of appeal, already existing before amendment. The conclusion therefore, is inevitable that the order of a Controller passed on an execution application under section 17 is appealable under section 15 of the Ordinance.
61. In the case of Muhammad Arif v. Mst. Amina Begum PLD 1990 SC 288 on which reliance was placed on behalf of the landlords, this Court was considering the question of appeal from an order of the Rent Controller passed under the newly inserted section 13-B through the amendments in the Ordinance in its application to Baluchistan and inter alia repelled the contention that such an order is in substance passed under section 13 of the Ordinance, therefore, it is appealable under section 15 notwithstanding the non-mention of section 13-B in the said section. However, the situation so far as section 13-B is concerned is distinguishable as explained in the said case as would be revealed from the reproduced portion of the judgment hereinabove, to the effect that section 13-B by making fairly detailed and self-contained provisions for cases covered thereundcr in respect of a particular class of landlords by means of a summary procedure, was indeed an independent and sui generis provision as a separate category of cases for ejectment and could not therefore, be appropriated to section 13. As discussed above, the position, however, in the present case is distinguishable, as the order under section 17 in respect of an eviction order passed under section 13, is in the same proceedings and of the same nature.
62. For the foregoing reasons we accept both these appeals and set aside the impugned orders of the High Court in both appeals. The question now is what consequential orders should be passed. In view of our decision that appeal was competent under section 15 the position was that the appeal riled by Haji Abdul Wali Khan (Civil Appeal No.17-Q of 1985) was competent but not before the District Judge as under the amended provisions as then applicable, the Rent Controller's order section 13 was appealable before the High Court. Therefore, the proper order for the learned Additional District Judge, Quetta, who disposed of that appeal as not maintainable for reasons already mentioned, was to return the appeal for presentation before the High Court. In any case, the matter was brought before the High Court m revision, which could have been converted into appeal and disposed of as such. Therefore, in Civil Appeal No.17-Q of 1985 we direct that the Baluchistan High Court shall treat the revision filed by Haji Abdul Wali Khan as pending; and may convert it into appeal after hearing the objections of the respondent, if any, and if the same is treated as appeal dispose it of as such on merits according to law. So far as Civil Appeal No.25-Q of 1987 is concerned the case is remanded to the Baiochistan High Court to dispose of the appeal filed by appellant Jalal Khan under section 15 of the Ordinance on merits according to law.
63. As complicated questions of law were involved in these cases, we leave the parties to bear their own costs.