ATAULLAH SAJJAD, J.-This order will dispose of Civil Miscellaneous No. 3939/67 filed in Writ Petition No. 598-R/64 by Mst. Ramzan Bibi which calls into question the orders of the Settlement authorities refusing to transfer to her house No. 217-18-19/A, Mohalla Nanakpura, Rawalpindi. This house was transferred jointly to Allah Ditta respondent and Mst. Amina Bibi deceased by order of the Additional Settlement Commis--sioner, dated 9-8-1960 (Copy Annexure `G') Mst. Amina Bibi has died and her legal representatives have been brought on record.
2. The petitioner submitted an application Civil Miscel--laneous No. 441/65 stating that Allah Ditta and others had taken ejectment proceedings against her and as she apprehended dispossession, an order maintaining status quo may be passed. A Division Bench of this Court dismissed this petition observing that the petition was premature.
3. The ejectment proceedings filed against her resulted in an order by the Rent Controller on 16-12- 1966. An appeal filed against this order was also dismissed by the appellate authority on 7-6-1967.
The petitioner thereupon filed another petition Civil Miscellaneous No. 3321/67 stating that the respondents had obtained an order of dispossession of the petitioner through the process of Court and had also obtained permission to break the locks of the doors of the portion of the property in dispute. It was prayed that the orders of the Rent Controller dated 16-12-1966 and that of the appellate authority, dated 7-6-1967 may not be executed and the possession of the petitioner over the property in dispute be not disturbed pending the final disposal of the writ petition. A Division Bench of this Court passed an order on 26-6-1967 to the effect that the petitioner, if in possession, should not be disturbed.
4. It appears from the contents of the application Civil Miscellaneous No. 3939/67 that after obtaining this stay order, Ch. Muhammad Hussain, counsel for the petitioner sent a telephonic information to Syed Tasleem Ahmad, Advocate. Rawalpindi, who is counsel for the petitioner at Rawalpindi in the ejectment proceedings. Express telegrams were also sent by Ch. Muhammad Hussain to Syed Tasleem Ahmad and to Mr. Zahir Ahmad Khan Yousufi, Civil Judge, Rawalpindi in whose Court the execution proceedings were pending. On 27-6-1967, the petitioner submitted an application to the Civil Judge concerned (Copy Annexure `A' with the petition under disposal) stating that an order had been issued by the High Court staying ejectment proceedings and that a copy of the order was being despatched from Lahore. It was prayed that the execution proceedings be stayed and the warrants of dispossession be recalled. The learned Civil Judge passed an order re-calling the warrants and issued notices to the respondents for 30-6-1967. After this order has been passed, Syed Tasleem Ahmad, Advocate, Rawalpindi, counsel for the petitioner in the ejectment proceed--ings visited the spot, where two bailiffs namely, Mukhtar Ahmad and Muhammad Aslam were present. It is alleged that the two bailiffs were informed by the counsel that the High Court had passed a stay order and that the Rent Controller had re-called the warrants of dispossession, but they refused to act on this information and after forcibly breaking open the doors of the house of the petitioner dispossessed her on 27-6-1967 at about 3 p.m.
5. The present petition was made with a view to rescind the proceedings taken in execution of warrants of dispossession and to order re-delivery of the possession of the house in dispute to the petitioner. A prayer had also been made to take suitable action against Mukhtar Ahmad and Muhammad Aslam the bailiffs. Notice was issued to the respondents and Mr. Hamid--ud-Din, Advocate, filed a written statement on their behalf. Certain annexures were attached along with the written statement, which show that this matter was brought to the notice of the learned Civil Judge and he passed an order on 12-7-67 (Annexure K/1) rejecting the petitioner's application for restora--petition of possession. It is observed in this order that the Court had passed an order on 27-6-67 recalling the warrants, but since the petitioner had not paid the process-fee, the requisite notice was not issued. It is also stated in this order that a copy of the High Court order was produced on 3-7-67 and that by that time, the petitioner had been dispossessed.
6. An appeal was taken to the learned District Judge, Rawalpindi, against this order, but he dismissed it on the ground that as a District Judge, he had no jurisdiction to hear an appeal in relation to a matter arising out of the West Pakistan Urban Rent Restriction Ordinance, 1959. As at present advised, we do not think that the order of the learned District Judge was correct because under section 17 of the West Pakistan Urban Rent Restriction Ordinance of 1959, the order of Rent Controller is to be executed by a civil Court and any order passed by the civil Court in execution proceedings should be appealable to the District Judge. Since, however, no arguments were addressed to us on this aspect of the case, we are not called upon to give our considered opinion in this regard.
7. Annexure R/3 is the report of Muhammad Aslam, bailiff, dated 27-6-67 made at 4-30 p.m. That the petitioner had willingly taken out her goods from the disputed premises and had vacated the same of her own accord. There is, however, a note on the same report that Mst. Ramzan Bibi had refused to thumb-mark or sign this report.
8. Ch. Muhammad Hussain, learned counsel for the petitioner argued that the proceedings taken by the bailiffs to dispossess the petitioner after the passing of the stay order by the High Court and the recall of warrants by the Executing Court were entirely illegal. The learned counsel also pointed out that the Executing Court had recalled the warrants on 27-5-67 on the basis of the submission made to it that a Division Bench of the High Court had passed a stay order and the reason given in the order, dated 12-7-67 (Annexure R/1) that a copy of the High Court order was produced only on 3-7-1967 before which the dis--possession of the petitioner had already been effected, suffers from inconsistency. It is asserted that the Civil Judge had already acted on the information imparted to him and the production of a copy was only a formality, the non-observance of which did not in any way detract from the force of the order passed earlier.
9. Mr. Hamid-ud-Din, the learned counsel for the respon--dents, on the other hand, asserted that the Rent Controller was not a party to the case and the order of the High Court was, therefore, not directed to him, but was actually in the nature of a direction to the respondents not to dispossess the petitioner. The learned counsel asserted on this basis that the petitioner could be dispossessed before service was formally effected on the respondents. It must be said in fairness to Mr. Hamid- ud-Din that he himself referred to the case Karam A.I and others v. Raja and others (PLD 1949 Lah.
100) to which a detailed reference will be made later and tried to distinguish it on the ground that in that case the Full Bench had examined the effect of an order passed under Order XLI, rule 5 of the C. P. C. It was argued that there being no proceedings before us against the order of the Rent Controller the dictum in that case was not applicable to the facts of the present petition.- The case under reference has, in our opinion, a wider plan and its scope is not so limited as canvassed by the learned counsel.
10. The question that falls for determination in this application is two-fold. Firstly, whether the order passed by the Nigh Court directing status quo rendered the Executing Court functus officio the moment it was passed ; and secondly, whether after the re-call of warrants by the learned Civil Judge, there was any authority left with the bailiffs to execute the warrants? The application, on which the stay order was passed by the High Court clearly stated that stay was sought in respect of proceedings which had flowed from the orders of the Rent Controller-and the Appellate Authority. The learned counsel for the respondents was, therefore, not on firm ground when he asserted that the proceedings of the Rent Controller or the Appellate Authority had not been called into question. It is true that these authorities were not formally impleaded as respondents, but that appears to be a hypertension objection. Article 98 of the Constitution gives ample powers to the High Court to give interim relief to a petitioner in respect of matters pending before it. In order to discover the scope and nature of a stay order, we have to keep in view its real intent and purpose.
The petitioner had claimed to be entitled to the transfer of the house in dispute and was in possession at the time she filed the writ petition. It was on the basis of the order of the Rent Controller and the appellate authority that she was sought to be ejected. Without these orders the opposite-party would not have been able to take any steps for her ejectment. The effect of the order of the High Court directing maintenance of status quo was, therefore, to suspend the operation of the orders passed under the West Pakistan Urban Rent Restriction Ordinance, 1959. The fact that the Rent Controller and the appellate authority were not formally impleaded will not render the order less effective.
11. In Karam A.I and others v. Raja and others, the question posed to the Full Bench, was as follows:- "Does a stay order made by the High Court staying the ,execution of a decree or order under appeal take effect from the moment when it is passed or does it become operative only after it is communicated to the Court in which the execution is pending."
The Full Bench held that the jurisdiction of the Court to take further proceedings under a decree appealed from is ousted the moment the orders staying such proceedings are recorded. Their Lordships examined a large number of authorities and came to the conclusion that where an order is directed to a party and not to a Court, a communication is necessary in order to start proceedings for contempt because the Court will not punish a man for doing what he did not do, but the case is different when direction is made by a superior Court with regard to proceedings before another forum over which it has jurisdiction.
12. We have observed above that under Article 98 of the Constitution it was within the powers of this Court to issue stay order in connection with the grant of interim relief. The order of the High Court was substituted for the orders of then Executing Court which was divested of its powers in regard to the delivery of possession to the respondents the moment an order was passed by the High Court.
It was observed by Muhammad Munir, A. C. J., as he then was, in the case under reference that when such an order is made, the jurisdiction of the Executing Court in respect of the matter covered by that order remains suspended as long as that order exists, and any order of the Executing Court inconsistent with that order is a nullity. The principle as enunciated by the learned Acting Chief Justice in constitutional parlance was that the field is occupied by the order of the superior Court and the jurisdiction of inferior Tribunal was ousted. We would like to quote the following observations made at page 113 of the report :- "Naturally the Court will proceed until it is apprised of the stay order, and will require the party, resisting execution on the-- ground that a stay order by the appellate Court has been made --to produce that order, but this does not mean that the proceedings taken by it in ignorance of the stay order must be held to be with jurisdiction if as a matter of fact the stay order had been made though it was not communicated to it."
13. We are, therefore, of the opinion that the order of the High Court became effective the moment it was passed and event if it had not been communicated to the Executing Court in time, the proceedings taken in ignorance of the order would have been held to have been without jurisdiction. Here, however, the order of the High Court had been communicated to the Court concerned before the execution of the warrants of possession and the Court had actual recalled the warrants on the basis of that information. The order passed by the learned Civil Judge on 12-7- 67 not only, suffers from a patent illegality, but is also clearly contradictory to the earlier order recalling the warrants.
14. Now we come to the second question which requires determination in this case. It is an admitted fact that before the warrants of dispossession could be executed, an application was-- duly filed before the learned Civil Judge apprising him of the fact that the High Court had passed an order maintaining status quo and it was on this ground that he re-called the warrants-- directing the dispossession of the petitioner. The possession according to the petition under decision was delivered at 3 p.m. --but the report of the bailiff Copy R/3 shows that it was, actually delivered at about 4-30 p.m. Whatever the time may be the delivery of possession of the respondent had been made after' the re-call of the warrants by the Court. The question, therefore, arises as to what was the authority with the bailiffs at the time they executed the warrants. They were the agents of the Court and they were acting in pursuance of the orders of the Court. Their authority actually having been withdrawn earlier, they had no power in law to act on those warrants which--had been deprived of all legal force by the order of the Court issuing the same.
We may refer here to Bodh Raj' v. Amir Chand and others (AIR 1943 Lah. 349): In this case, certain land belonging to the judgment-debtor was to be sold through the Collector, who had appointed an Officer to conduct the sale. The executing Court sent an intimation to the Collector to suspend the sale. The Collector was unable to communicate in time the orders of the suspension of the sale with the result that the land was sold on the date fixed. It was held that a ministerial officer conducting a sale by order of the Court becomes functus officio as soon as a stay order is passed.
When such an order is passed, the legal foundation for the sale disappears and thereafter the Officer concerned does not retain any power to sell the property even if the stay order had not been communicated to him.
15. We find that the warrants on the basis of which the petitioner vas dispossessed had been deprived of their legal substance and the bailiffs who executed this warrant had no power to do so.
We, therefore, direct that the petitioner shall be put back in possession of the property in dispute unless orders to the contrary are passed by some competent authority in due course of law.
16. It has been alleged in this petition that Syed Tasleem Ahmad, Advocate intimated to the two bailiffs, namely, Mukhtar Ahmad and Muhammad Aslam about the stay order passed by the High Court but in spite of that they proceeded to execute the warrants. The learned District Judge, Rawalpindi, if moved in this behalf, may look into this matter. The costs of this petition shall be borne by respondents.