1. ' SYED HAIDER ALI PIRZADA, J.---This High Court Appeal is directed against orders dated 18-5-1989 and 31-5-1989, passed by a learned Single Judge of this Court in "Execution Application No, 51 of 1988 (Suit No,972 of 1978), whereby he dismissed the appellant's Civil Miscellaneous Application No,1224 of 1989 under Order 21, Rule 58 read with Rules 60, 99, 100 and 101 of the Code of Civil Procedure.
2. ' The facts leading to the filing of the above appeal are that one Wali Mohmmad. Haji. Habib Bawany died at Karachi on 25-8-1965 leaving behind the respondents as his legal representatives.
3. It seems that the respondents 14 to 22 had filed a suit for administration and partition and possession of the property No,R.C. 10/21/1, Hardas Street, known as Usman Building Ranchore Lines, Karachi in this Court. A preliminary decree was passed on 26-11-1979. On 10-2-1982, the property was ordered to be disposed of in the manner suggested by the Commissioner. It is not in dispute that the immovable property bearing City Survey No,RC-10/21/1, known as Usman Building situated on Hardas Street Ranchore Lines, Karachi of which building 80% was in the possession of the judgment-debtors and or their tenants and 20% was in the possession of the Decree-holders should be sold and the sale consideration be paid in the ratio of 48% 52% to the decree-holders and the judgment-debtor respectively. The suit for administration was decreed holding the decree-holders' share to the extent of 48,468770 in locker No,1638 and immovable property. The decree-holders filed Execution Application praying for distribution of the contents of locker and by sale of immovable property. The appellant filed an application under Order 21, rule 58 read with Rules 60, 99, 100 and 101, C.P.C. Stating therein that the decree-holders and judgment-debtors had agreed to sell the aforesaid immovable property for a total sale consideration of rs10,25,000 to him.
4. It is alleged in the application that a sum of rs5.45,000 has been paid to the group of judgment- debtors and the balance sale consideration amounting to rs 48,000 was deposited with the third party Amanullah Adam, which amount shall be paid to the Decree-Holders as and when they will deliver the vacant and peaceful physical possession of the said two flats in possession of the decree-holders to the objector.
5. ' The decree-holders contested the application. They denied the sale of the aforesaid building to the appellant. They had also filed affidavit of Amanullah Adam wherein he stated that the appellant had not deposited any amount as alleged by the appellant.
6. ' The learned Single Judge by his order dated 18-5-1989, directed the appellant to deposit rs9,00,000 in the Court in order to show his bona fides on or before 30-5-1989 for the price of share of decree-holders It seems that this order was not complied with. The learned Single Judge by his order dated 31-5-1989 dismissed the objections and directed the Official Assignee to sell the house in suit, by inviting sealed offers from public through newspaper. It was further ordered that the parties are also at liberty to give sealed offers if they so desire. The appellant being aggrieved by the above orders has filed the above appeal.
7. ' In support of the above appeal Mr. Abdul Latif Shakoor, learned counsel for the appellant has urged that the orders which were passed without framing the issues and without holding an investigation into the matter are against law and, therefore, not sustainable. In support of this contention reliance is placed on Mst. Surayya Begum v. Muslim Commercial .Bank Ltd. And 4 others, PLD 1990 Lahore,
4. Mr. Abrar Hassan the learned counsel for the respondents 1 to 13 has supported the contention of Mr. Abdul Latif Shakoor.
8. ' On the other hand, Mr. Khalilur Rehman, learned counsel for the decree-holders (respondents 14 to 22) has submitted that the application was not maintainable and the respondents Nos. 14 to 22 had not sold their share to the appellant.
9. ' The main point raised on behalf of the appellant is that the learned Single Judge failed to investigate the claim or failed to decide what it was bound to do. This point is supported by the decision of Lahore High Court in Mst. Surayya Begum v. Muslim Commercial Bank Ltd. And 4 others PLD 1990. Lah.
10. 4.
11. ' The appellant had filed objections under Order 21, Rule 58 read with Rule 60 of the Code of Civil Procedure. Under Rule 58 where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit. Therefore, the Executing Court can proceed to investigate the claim of the objector in the manner stated in R 58. Under Rule 59 of the said order, the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. It is, therefore, for the objector to show by evidence that he had some interest in or was in possession of the attached property when it was attached. The words "some interest" in Rule 59 mean some interest as would make the possession of the judgment-debtor as possession, not on his account, but on account of or interest for the claimant.
12. The words "or was possessed of would mean, was in possession of for himself and not as trustee for the Judgment-debtor.
13. ' After investigating in this summary way, under Rule 60 if the Court is satisfied that for the reason stated in the claim or objection such property was. Not when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the Judgment-debtor at such time it was so in possession, not on his own account or his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property wholly or to such an extent as it thinks fit, from attachment. It is therefore plain that if during the course of investigation the Court finds that the property was not in "possession" of the judgment-debtor for the reason stated in the objection, then the property could be released from attachment. If the Court, however, finds that the property was in "possession" of the judgment-debtor at the time of the attachment and if during investigation it is found that it was in his possession not on his own account or as his own property but on account of or interest for the objector, even then the Court has to release it from the attachment. Therefore, what appears to be more important is the fact of possession.
14. In the instant case before us, the property in suit was not attached at all. In this view of the matter we hold that the application under Order 21, rules 58 read with rule 60 was not maintainable and as such the question of investigation does not arise. The decisions cited by the learned counsel for the appellant are not applicable to the facts of the instant case. However, Mr. Abdul Latif has pressed the application under Order 21, Rules 99, 100 and 101, of the Code of Civil Procedure.
15. ' It is advantageous to reproduce Rules 99, 100 and 101 of Order 21 which are as follows:- "99. Resistance or obstruction by bona fide claimant. ---Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the Judgment-Debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.
100. Dispossession by decree-holder or purchaser.---
(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear. And answer the same.
101. Bona fide claimant to be restored to possession---Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property."
16. ' From a bare reading of the above Rules, it is clear that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. All questions arising between the parties to the proceedings, on an application under Rule 99 and relevant to the adjudication of the application, are now required to be determined by the Court dealing with the application. However, if the person in possession wants to raise any dispute before surrendering possession he can do so by filing a suit for declaration of his title to the property or for specific performance of the contract, he can protect his possession by making an application for temporary injunction. This has been done by the appellant. Therefore, we are of the opinion that any person other than the judgment-debtor can not file any objection petition under Rules 99, 100 and 101 of Order 21 prior to dispossession. In this view of the matter we are of the view that the application was premature as the appellant is still in possession of the property in the suit and has not been dispossessed till the filing of the above application.
17. ' For the aforesaid reasons, we do not find any merit in this appeal and dismiss the same. In the circumstances of the case, the parties are directed to bear their own costs.