' The facts giving rise to this revision petition under section 115, C.P.C. Are that Abdul Razzaq petitioner filed a petition under section 12(2), C.P.C. For setting aside ex pane judgment and decree dated 12-10-1995 obtained by Muhammad Sharif respondent by filing a suit for possession of the land in question through specific performance of the agreement on 19th of June, 1993. Abdur Razzaq petitioner asserted that the agreement to sell was executed in his favour by Abbas Ali Rana for a consideration of Rs,5,60,000 on 31-7-1989 and a sum of Rs,50,000 was paid as earnest money and the remaining price was to be paid on or before 28th February, 1990. The possession of the land in dispute was also received by him under the aforesaid agreement which was also registered. It was also averred that as the second party was not willing to perform the said agreement and intended to sell the said land to someone else, he filed on 27-1-1990 a suit for specific performance of the agreement in the Civil Court and the interim injunction granted in his favour was confirmed on 20-2-1991 subject to deposit of balance price of Rs,5,10,000 till 8-3-1991.
The said amount was duly deposited with the Court and the said suit is now pending in the Court of Ch. Muhammad Rafiq, Civil Judge Ist Class, Lahore. The proceedings in the said suit have, however, been stayed by this Court vide order dated 3-4-1996 passed in Civil Revision No,976 of 1996. The petitioner further averred that aforesaid Abbas Ali Rana happened to meet Mr. Muhammad Iqbal Ghurki, the Punjab Transport Minister and Mr. Khalid Ghurki, M.N.A. Who being interested in the said land made Abbas Ali Rana to file a suit for cancellation of the agreement to sell and the said suit filed by Abbas Ali Rana on their behest is also pending before the Civil Court.
2. Abdur Razzaq petitioner further averred that on 4-7-1996 Muhammad Iqbal Ghurki in the company of respondents Nos.1 and 2 and S.H.O. Came at the spot and tried to take possession of the suit land and on refusal of the petitioner to vacate the land, they left the place after giving threats of life to him. The petitioner was arrested by the police illegally necessitating the filing of a Habeas Corpus petition as well as a writ petition and was ultimately released on 9th of July, 1996. It was averred that after his release, the petitioner came to know that possession of the suit land was shown to have been obtained by Muhammad Sharif respondent in obedience to the warrant of possession issued in execution of a decree. The petitioner inspected the record along with his counsel and it transpired that the execution matter was fixed for 18th of July, 1996 for the report 0, the Bailiff. According to the petitioner, Muhammad Sharif and Haji Muhammad Ali respondent had played an active fraud on the Court by suppressing material facts such as petitioner's suit and confirmed interim injunction and by not producing a copy of the Jamabandi of the land as the injunction order passed by the Court stood duly entered and recorded in the Revenue Record. It was averred that if copy of the Jamabandi had been produced, the injunction order passed by the Civil Court would have come to the notice of the Executing Court. It was also averred that the judgment dated 12-10-1995 has been passed on the basis of a decree and the sale-deed executed by the Court of Mr. Muhammad Aslam Bhatti, Civil Judge in the year 1993, which judgment itself being void is liable to be set aside, and for seeking its annulment, right was reserved to move an application under section 12(2), C.P.C. Abdur Razzaq petitioner mentioned that judgment and decree dated 12-10-1995 is a collusive decree having been passed in the suit filed by Muhammad Sharif respondent in conspiracy with Muhammad Ali and others and the machinery of law has been used to grab valuable land. The petitioner also sought restoration of possession of the land in dispute and compensation for the loss of crops and tube well machinery by moving an application under section 151, C.P.C.
3 The learned Executing Court issued notice of the two applications and Mr. Muhammad Hussain Chotiya, Advocate, filed power of attorney on behalf of Muhammad Sharif decree- holder/respondent on 18-7-1996 and the case was fixed for reply to application for 22-7-1996 but on the said date again reply was not filed and the matter was adjourned to 28th of July, 1996. On this date,. Mr. Muhammad Hussain Chotiya, Advocate, made a statement seeking permission to withdraw from the case and for cancellation of his power of attorney for the reason that ke had earlier filed a suit on behalf of Rana Abbas Ali for cancellation of the agreement to sell executed in favour of Abdur Razzaq petitioner. This application was then fixed for 30th of July, 1996, for reply thereto and arguments. It appears that no reply was filed to the applications by either of the respondents. The arguments were then heard and the order dated 30th of July, 1996 was passed declining to restore possession of the land in dispute to the petitioner but the operation of the warrant ' Dalchar was suspended and explanation.Of the Ahlmad and Reader of the Court was called for as to why the warrant Dalchal Malkana' was not issued and warrant Dakhal' for actual possession was issued despite the clear order that warrant Dakhal Malkana' is to be issued. As regards the restoration/restitution of possession on the basis of the application, the learned Civil Judge observed that "if such order is passed that will amount to accepting the application without providing opportunity to decree-holder to file the reply to this application and recording of evidence, that procedure cannot be adopted, as such a procedure if adopted will frustrate the whole system and merely on application of one party without hearing the opposite-party, the case would be treated to have been finally decided to that extent". The learned Civil Judge, thus, declined to order restitution of possession observing further as under:- "Anyhow, I am not hesitant to proceed under section 151, C.P.C. To brush away the abuse of process of .This Court regarding issuance of warrant Dakhal' . It is crystal clear that 'Warrant Dakhal Malkana' was to be issued through District Collector regarding agricultural land. The disputed land is agricultural land, therefore, warrant of possession without 'Warrant Dakhal Malkana' is of course abuse of process of the Court which can be remedied by way of inherent powers of the Court i,e, to suspend the -operation of previous warrant Dakhal' and proceedings on the basis, of that in the execution petition as warrant 'Dalchar had yet not zen issued for the time being, so that in the meantime reply to application under sections 151 and 12(2), C.P.C. May be filed, within reasonable time and the Court will be able to proceed according to pleadings of the parties."
' The order dated 30th of July, 1996 of the learned Civil Judge/Executing Court was then challenged in the present revision petition.
4. Learned counsel for the petitioner argued that abuse of process of law in delivering possession having been admitted and operation of the warrant 'Dalchar having been suspended, consequential order to be passed was that of restoring possession of the land to the petitioner and the refusal made vide impugned order is, therefore, arbitrary, illegal and unwarranted in law, that in fact injustice has been perpetuated by declining to allow the consequential relief. It was pointed out that the learned Judge himself noted that warrant 'Dalchal Malkana' was ordered to be issued but instead warrant 'Dalchal Khas' was got issued and that even warrant 'Dalchal Malkana' could at best be issued to District Collector and not directly to the Bailiff. It was further argued that by abusing the process of law, petitioner who was neither a party to the suit nor could be said to be holding the land on behalf of the decree-holder, was dispossessed on account of the political influence wielded by the respondents through their relatives. According to learned counsel the Court was, in the circumstances, duty bound to restore possession as it had come to the conclusion that the process of law was abused. These very pleas in almost similar terms were urged before the learned Executing Court.
5. Mirza Hafiz-ur-Rehman, learned counsel for decree-holder argued that no prejudice was caused by issuing warrant of possession directly and without intervention of the District Collector as the revenue staff was present at the time of delivery of possession and, as such, the plea of abuse of process of law is not available to the petitioner and in the circumstances, the learned Executing Court was not right in connecting any such abuse of process of law and suspending the operation of the warrant 'DaIdle. He argued that any rule providing for transferring the decree to the Collector for delivery of possession of agricultural land is directory in nature , and any non-compliance of the said rule does not vitiate the delivery of possession directly by the Court through its Bailiff. In support of this plea, reference was made to Vir Bhan and another v. Sham Singh etc. (AIR 1944 Lahore 455). It was added that till the judgment and decree of the Court holds the field, valuable rights created in favour of the decree-holder could not be set at naught without recording evidence of both parties and deciding the application under section 12(2), C.P.C. Learned counsel further submitted that section 144, C.P.C. Was not applicable and restitution of possession could not be directed on an application under section 151, C.P.C. Learned counsel argued that the petitioner, according to his own showing, was ousted from the land on 11-7-1996 and not pursuant to the decree and warrant sDakhar issued by the Court on 4-7-1996 and as such the remedy available to the petitioner is to file a suit for possession. According to the learned counsel, the application for restitution of possession is, therefore, not maintainable.
6. Mr. Muhammad Hussain Chotiya, Advocate, entered appearance, for Haji Muhammad Ali respondent No,2 on 15-8-1996. None appeared for respondent No,2 on the subsequent dates to contest the revision petition.
7. I have given my serious consideration to the respective submission of the learned counsel for the parties. The facts which emerge from the record are that suit for specific performance of agreement dated 31-7-1989 filed by Abdur Razzaq petitioner against Abbas Ali Rana, the original owner of the land in dispute is still pending adjudication before the Civil Court and a confirmed injunction order dated 20-2-1991 passed by the learned Civil Judge restraining alienation of the land in dispute and dispossession therefrom of the petitioner still holds the field. Abbas Ali Rana also filed a suit against Abdur Razzaq for declaration, possession and cancellation of registered agreement to sell dated 30-7-1989. It may be noted that this suit was instituted through Mr.Muhammad Hussain Chotiya, Advocate and this suit is also pending for adjudication before the Civil Court. Haji Muhammad Ali, respondent No,2, it appears, filed a suit for specific performance of agreement to sell dated 1-7-1989 against Abbas Ali Rana and Abdur Razzaq, petitioner on 27-5- 1992 and the said suit was decreed ex parte as against Abdur Razzaq, petitioner and on the consenting statement of the attorney of Abbas Ali Rana vide order dated 29-9-1992. Sale-deed in respect of the land was then executed in favour of Muhammad Ali, respondent on 13-4-1992. A suit was then filed by Muhammad Sharif against Muhammad Ali on the basis of sale agreement dated 19-6-1995. Abdur Razzaq petitioner was not impleaded as a party in this suit which was, however, decreed ex parte on 12-10-1995. A sale-deed pursuant to that decree was executed and got registered. It is pertinent to note that Mr. Muhammad Hussain Chotiya, Advocate filed power of attorney in the lower Court on behalf of Muhammad Sharif, decree-holder and thereafter withdrew his power of attorney by submitting an application before the learned Civil Judge. The same learned counsel entered appearance before this Court on behalf of Muhammad Ali, respondent but on the subsequent dates he failed to enter appearance. Another important fact which was not controverted before me was that Muhammad Sharif, respondent No,1 is the husband of real sister of Haji Muhammad Ali, respondent No,2 who is elder brother of Muhammad Iqbal Ghurki, the Transport Minister, Punjab. He is also first cousin of Khalid Ghurki, M.N.A. The afore noted facts have been noted as the learned counsel for the petitioner vehemently argued that injustice was perpetrated on account of the influence exerted by the politically important personalities. This aspect need not be commented upon any further as the application under section 12(2), C.P.C., is yet to be adjudicated upon by the learned trial. Court.
8. Now the stage is set to scrutinise the legal contentions urged by the learned counsel for the parties. The first plea that execution of the warrant of possession by the Bailiff of the Court directly and not through the District Collector is a mere irregularity, and this omission does not render the delivery of possession illegal may be scrutinised. The plea of Mirza Hafeez-ur-Rehman, Advocate was that execution of the decree is to be transferred to the Collector in cases in which Court has ordered either the sale of the land itself or the crops growing on the land. In this connection, he relied on the provisions contained in section 68 and Third Schedule of the Civil Procedure Code. He also referred to the Punjab Notification No,365-R of 17th January, 1939 which provides for transfer to the Collector of the decrees directing the sale of the land within the meaning of the Punjab Tenancy Act. Reliance was also placed on Firm Narain Das Gulab Singh through Kanwar Kishori Saran and others v. Patiala Durbar, and others (AIR 1940 Lahore 345) and L. Basant Lal and another v. Muhammad Nawab Ali Khan (AIR 1934 Oudh 143). The attention of the learned counsel for the respondent-decree holder was drawn to the provisions of section 70, C.P.C., section 170 of the Land Revenue Act 1967 and the Rules framed under the Punjab Land Revenue Act, 1967 as well as to Chapter 12-G, Volume I of the High Court Rules and Orders. He after going through these provisions did not press his aforenoted submission and instead argued that the provisions requiring transfer of the decree to the Collector for delivery of possession of immovable property are directory in nature and failure to comply with the said procedure does not vitiate delivery of possession. In support of this plea, he referred to the case of Vir Bhan and another v. Sham Singh etc. (AIR 1944 Lahore 455) wherein it was observed as under:--- "Section 141 though couched in a mandatory form simply lays down a direction to a Civil Court as to how it should ordinarily act when it has to effect attachment of revenue paying land or has to sell it or to deliver possession of it . Any departure from the procedure prescribed in this section or nonobservance of the directions contained therein is at best an irregularity of a grave character by a Court, but it cannot be said to amount to an illegality vitiating the sale or attachment altogether or leading to the result that the delivery of possession made except through the agency of the Collector was in fact no such delivery."
' The above observation is only obiter dicta as the property, the subject-matter of the execution proceedings was not agricultural land but other immovable property. The obiter dicta, as such, is not binding on this Court. Moreover, the different provisions noted above were not noticed in this judgment as the property involved in the execution petition were certain shops and a workshop and not the agricultural land. The mandatory nature of the provisions contained in section 141 of the Land Revenue Act, 1887 which is now section 170 of the Punjab Land Revenue Act, 1967 stands admitted in the case of Vir Bhan (supra). This section provides that orders issued by any Civil or Criminal Court for the attachment, sale, or delivery of any land or produce of land shall be addressed to the Collector and be executed by the Collector in accordance with the provisions of law applicable to the Court issuing the orders and within rules not inconsistent therewith made by the Board of Revenue with the concurrence of the High Court and the previous approval of the Government. Rule 70 of the Land Revenue Rules, 1968 reads as under:--- "70. Date on which possession is to be given to decree-holder of Civil Court.--When an order of a Civil Court is sent to the Collector for the execution of a decree for the possession of lands, the Collector shall give possession to the decree-holder on the date specified in the decree or in the direction issued by the Civil Court executing the decree. If no date is specified in the decree or by the Civil Court and the land of which possession is to be given is in the cultivating possession of the judgment-debtor, the Collector shall at once refer to the Civil Court for instructions as to whether or not he is to delay execution until any crop which may have been sown by the judgment-debtor and is standing on the land, has been removed."
The other relevant provision is contained in section 70, C.P.C. Which provides that the Provincial Government may make rules consistent with the aforesaid provisions for the transmission of the decree from the Court to the Collector and for regulating the procedure of the Collector and his subordinates in executing the same and for retransmitting the decree from the Collector to the Court. Subsection (2) of section 70, C.P.C. Bars the jurisdiction of Civil Courts by providing that a power conferred by rules made under subsection (1) upon the Collector or any gazetted subordinate of the Collector or any appellate or revisional authority shall not be exercisable by the Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to the orders of the Court. Thus once a decree is transferred to the Collector for execution, the Civil Court which passed the decree has no jurisdiction to make an order in the matter of execution without first recalling the proceeding before the Collector as only then the Collector's jurisdiction stands determined. See Shahzad Singh v. Hanuman Rai and others (AIR 1924 Allahabad 704) and Zibal Iswa ra and others v. Muka and another (AIR 1940 Nagpur 372). Reference may appropriately be invited to the provisions of Rule 35, Order 21, C.P.C. Which provide that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive on his behalf and if necessary by removing any person bound by the decree whom refuses to vacate the property. The procedure prescribed with reference to this rule and rule 36 of Order 21 of the C.P.C. 1908, in Part 'G', Chapter 12, Volume I, Rules and Orders of the High Court reads as under:--- "The steps to be taken, under Order XXI, Rules 35 and 36 of the Code of Civil Procedure, 1908, in the case of the delivery of immovable property are as follows:---
(a) First, where a decree- is for delivery of immovable property, if such property is in the possession of any person bound by the decree, such person may be called upon to vacate the property in order that possession may be delivered to the person to whom it has been adjudged, or his agent; and if he refuses to do so he may be removed from the property in order to effect such delivery of possession. Here the endorsement on the warrant should state that the property was found in the possession of A (Naming the person), and that he was one of the persons bound by the decree or held on behalf of one of those persons (Naming the persons); that he was required to vacate the property and that, on his doing so, the person entitled under the decree was put in possession; or that, on this reltisal to do so, he was removed from the property; and the person entitled under the decree was put in possession.
(b) Secondly, where a decree is for joint possession of immovable property, such possession shall be delivered, by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming by beat of drum at some convenient place the substance of the decree. Here the endorsement on the warrant should state on what part of the property the copy of the process was affixed, and at what place the substance of decree was proclaimed.
(c) Thirdly, where possession of any building or enclosure is to be delivered, and the person in possession, being bound by the decree, does not afford free access,, the officers of the Court may (after giving reasonable warning and facility to any woman, not appearing in public according to custom, to withdraw) remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
' Here the endorsement should describe briefly the action taken, as in paragraph (a) above.
(d) Fourthly, if the property is in the occupancy of a tenant or other person. Entitled to occupy it and not bound by the decree to relinquish such occupancy, a copy of the warrant must be affixed in some conspicuous place on the property and proclamation made as provided in Order XXI, Rule 36 of the Code. Here the endorsement should state that a copy of the warrant had been put up (stating where it was affixed), and that the substance of the decree had been proclaimed.
' Before issuing a warrant for the delivery of immovable property, the Court should ascertain from the decree-holder, or his agent, the name of the person whom he believes to be in possession of such property to guide it in selecting the particular mode of delivery suitable to the case.
' When a decree is passed giving possession of agricultural land, the date on which possession is to be delivered should always be specified in the decree, and orders passed as to any standing crops that may be on the land. If this has not been done in the decree, it should be done in the order which is sent to the Collector by the Court executing the decree. If, however, no date is specified in either the decree or the order, and the land of which possession is to be delivered is in the cultivating possession of the judgment-debtor, the Collector should at once refer to the Civil Court for instructions as to whether or not he is to delay execution of the decree, until any crop which may have been sown by the judgment-debtor and is standing on the land, has been removed."
9. The cumulative effect of these provisions is that execution of the decree for the purposes of attachment, sale or delivery of any land or produce thereof shall be addressed to the Collector or such Revenue Officer as the Collector may appoint in this behalf for execution. The Collector is to give possession to the decree-holder on the date specified in the decree or in the order of execution issued by the Civil Court and if no date is specified in the decree by the Civil Court and the land of which possession is to be given is in the cultivating possession of judgment-debtor, the Collector shall at once refer to the Civil Court for instructions as to whether or not he is to delay execution until any crop which may have been sown by the judgment-debtor and standing on the land has been removed. Again according to clause ' a' of Chapter 12-G where a decree is for immovable property if such property is in possession of person bound by the decree, he is to be called upon to vacate the property in order that possession may be delivered to the person to whom it has been adjudged or his agent and if he refuses to do so he may be removed from the property in order to effect such delivery of possession. The warrant of possession has to contain an endorsement that the property was found in the possession of so and so who is a person bound by the decree or who holds on behalf of a specific person and that he was required to vacate the property and was on account of refusal removed from the property and the party entitled under the decree was put in possession of the immovable property.
The question whether a person in possession of the property is bound by the decree and he is required to vacate the property can be answered only after knowing and specifying the person found in possession of the land and determining his claimed entitlement to remain in possession of the land. The provisions of Rule 70 of Land Revenue Rules, 1968 with that purpose in view provide the procedure to determine the claim of a person found in possession of the agricultural, land. It is, therefore, apparent that order/direction to deliver possession cannot be made without first specifying the person in possession and determining his claim to retain possession of the land in question.
10. Learned Executing Court while deputing Bailiff to execute the warrant 'Dalchar obviously adopted a procedure contrary to the prescribed procedure. It would be very unfortunate if the learned Civil Judge was not aware of the law and the rules referred to above and his ignorance was the cause of non-adoption of the prescribed procedure. Be that as it may, he did not bother to find out the actual position obtaining at the spot and the person in physical possession of the land in dispute, what to say of knowing about the claim of the person in possession. He apparently, acted recklessly, in directing issuance of warrant 'Dalchal Malkana' and then signing the warrant 'Dalchal. Prepared by his staff. The warrant 'Dalchal' so issued and prepared does not contain any endorsement of the document (i,e, the decree-sheet, or document detailing the land of which the possession was to be delivered) accompanying it. Despite all this, the report submitted by the Bailiff is that possession was delivered without any resistance of the judgment-debtor who admittedly was neither in possession of the land nor had obtained possession of land in pursuant to the decree earlier obtained by him. No details of the land of which the possession was statedly delivered have been mentioned in this report of the Bailiff. It is pertinent to note that neither the copy of the 'Jamabandi' pertaining to the land nor any other relevant document was filed in the Court with the execution petition nor any such document was made available to the Bailiff by the Executing Court. It is true that the revenue staff was statedly present at the time when the possession was statedly delivered but it was not the case of the Bailiff in the report that the land of which the possession was being delivered was specified or pointed out by the said revenue officials.
The fact that the Court had ordered for issuance of warrant 'Dakhal Malkana' but instead warrant '
Dakhal' was issued stands admitted in the impugned order and the learned Executing Court has also required the Ahlmad and the Reader to submit explanation as to how the warrant 'Dakhal' for delivery of actual possession Was got issued when the direction was to issue the warrant 'Dalchal Malkana' only. Though the warrant Dakhal' was prepared by the Ahlmad and presented by the Reader for signatures but the said warrant so issued was signed by the learned Judge himself and as such it is for him also to explain as to why he acting mechanically and irresponsibly signed the said warrant so prepared contrary to his direction.
' The above-noted factors abundantly show that not only that the process of law was abused but the prescribed procedure was disregarded and deviated to the prejudice of the petitioner. When such a flagrant disregard of the prescribed procedure occurs in cases of parties who wield political power, bad faith and motives are often attributed. In such a situation disregard of judicial norms cannot be ignored as such a conduct erodes confidence of the people in the administration of justice. This aspect of the matter needs to be dealt with separately on the administrative side.
11. The basic position which emerges is that dispossession of the petitioner in pursuant to the 'Warrant Dakhal' issued contrary to the order of the Court was illegal as the law was abused to the great prejudice of the petitioner. Had the Executing Court required the respondent/decree-holder to submit a copy of the Jamabandi of the land in question, he would have noticed the injunction order issued by the Court restraining alienation of the land or dispossession of the petitioner as the said order was duly recorded in the Revenue Record. In this case on account of dispossession of person in possession in his own right, the prejudice caused is apparent and in addition loss of standing crops and machinery of tubewell has been claimed. In this view of the matter, the Lahore case of ' Vir Bhan' (supra) which treated the provisions contained in the land revenue rules, as directory, can be pressed into service in favour of petitioner as the grave irregularity committed in the precedent case was held to have not caused any prejudice to the judgment-debtor i,e, person in possession while prejudice caused to the petitioner is apparent. In the instant case, as the petitioner who was in possession of the land and who had secured his possession by obtaining injunctive relief, was dispossessed physically in pursuant of 'Warrant Dakhal' got issued contrary to the direction of the Executing Court. It will, therefore, be seen that the case of ' Vir Bhan' (supra) does not help the petitioner and the grave irregularity committed in dispossessing the petitioner cannot be brushed aside.
12. The other relevant legal proposition to be noted is that where a power is given to do a certain thing in a certain way, that thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has been often applied to the Courts, and was so pointed out by the Privy Council in the case of Nazir Ahmad v. King-Emperor (AIR 1936 PC 253). This salutary principle of law stood violated by issuing the 'Warrant Dakhal' without first determining the person in possession of the land and then by deputing a Bailiff to execute the same.
13. The plea of the learned counsel for the respondent/decree-holder that suit for possession should have been filed as the petitioner had pleaded that he was dispossessed on 11-7-1996, and not on 4-7-1996 and that the report of the Bailiff of dispossession pursuant to the warrant 'Dakhal' is fictitious, has no merit.
' Learned counsel on query admitted that the dispossession of the petitioner had taken place on 4th July, 1996 in pursuant of the warrant 'Dalchar at the hands of the Bailiff. Learned counsel for the petitioner in explanation of the aforesaid averment contained in the petition, submitted that on first occasion on 4th, the dispossession was not effected due to intervention of Rangers but the dispossession later on might have been effected at the spot in the absence of the petitioner who was being threatened continuously of dire consequences and then was arrested by the Police illegally and was kept in detention till 9th of July, 1996. The learned counsel stated that he will adopt the position taken by the learned counsel for the respondent that dispossession was effected on 4th of July, 1996 by the Bailiff. This explanation and the admission of the learned counsel thus puts the position beyond controversy. The basis of refusal to restitute possession may now be examined.
14. Learned Civil Judge in the impugned order has recorded the conclusion that the warrant of possession issued without warrant 'Dakhal Malkana' is of course an abuse of the process of the Court which can be remedied by way of inherent powers of the Court. He after recording this conclusion, suspended the operation of previous warrant DaIdle and proceeded on the basis that warrant 'Dalchar as yet has not been issued for the time being. He, however, declined to restore the possession on the basis that replies to the application under section 151 and section 12(2), C.P.C., have not yet been filed and if at this stage, order of restoration of possession is passed, it would amount to accepting the application under section 151, C.P.C. Without providing opportunity to the decree-holder to file reply and recording of the evidence therein. The reasons advanced are fallacious. It will be seen that on submission of application seeking restoration of possession alongwith the petition under section 12(2), C.P.C., notice was issued for 8th of July, 1996. The counsel for the decree-holder entered appearance on the said date but did not file the reply. The matter was then adjourned to 22nd for reply which was again not filed on this date or even on the adjourned date, i,e, 28-7-1996. The application was then fixed for 30th July, 1996 for arguments and reply but the same was again not filed on the said date and instead the arguments were addressed. The pleas taken during the arguments would have been taken in the reply for the filing of which more than adequate opportunities were granted. The learned Civil Judge was, therefore, not right in observing that if the order of restoration of possession is passed, that will amount to accepting the application without providing opportunity to file the reply. Again, after recording the finding that the warrant 'Dakhal' could not have been issued, nor was intended to be issued, there was no occasion for recording the evidence so far as rectifying the mistake of the Court is concerned. The observation, that, "anyhow after the suspension of operation of warrant 'Dakhal' both the parties would be at liberty to proceed according to law for redress of their grievance", is a mere eyewash as this observation fails to provide any solace to the petitioner. The refusal of 'the learned Executing Court to order restoration of possession despite recording the conclusion that the dispossession took place by abusing the process of law and despite ordering suspension of the operation of warrant 'Dakhar is illegal and arbitrary.
15. The established principle of law is that where the Court by applying a procedure does something that it never intended and, there is miscarriage of justice, the Court possesses inherent power to rectify its mistake as an act of Court should not prejudice any person. See Shadi Khan and another v. Khan Saeed-ud-Din Khan, Settlement and Rehabilitation Commissioner, Lahore and others (PLD 1972 Lahore 262); and Evacuee Trust Property Board v. Sh. Hameed Elahi and another (PLD 1981 SC 108). The contention of the learned counsel that restitution cannot be allowed on an application under section 151, C.P.C. Is fallacious as the principle of law is that act of a Court should not be allowed to work injury on the suitors. It contemplates a case where property had been received through Courts under the order of an authority which was later on wholly or partially reversed or varied. In such a case, the law imposes an obligation on a party who received the benefit of the erroneous order to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation in the interest of justice between the parties. See Sh.
Mehraj Din v. Ghulam Muhammad (PLD 1965 Lah. (W.P.) 374) and Iqbal Ahmad Malik v. Surraya Anwar Sheikh (PLD 1977 Lahore 409). The restitution of the possession, in the circumstances, should have followed as a matter of course, and should not have been put off till the decision of the application under section 12(2), C.P.C. As for allowing consequential relief on account of suspension of the warrant 'Dakhal Malkana' nothing else was to be done. The failure of the decree-holder to submit reply despite grant of four opportunities could not be made a basis for allowing premium to the decree-holder by allowing him to reap benefit of the mistake of the Court and retain the ill- gotten gain. The Supreme Court in the case of M/s. Rafique Industries Ltd. v. Messrs Conforce Ltd.
(1984 SCMR 807) observed that the jurisdiction to make restitution is inherent in every Court and should be exercised whenever the justice demands. The order of restoration of possession was, in the facts and circumstances of this case, imminently called for and the refusal to direct restoration is illegal, arbitrary and unwarranted. The learned trial Court, as such, failed in its duty to regularize the procedure of the execution petition and the observation that the abuse of process of Court regarding non-issuance of warrant 'Dakhal Malkana' to the District Collector has been corrected, was a mere eyewash. Such a window dressing amounted to failure to do justice and to adjust the rights of the parties and rather afforded protection to the wrongdoer to retain the ill-gotten gain.
Such a course of action cannot be allowed to be adopted and perpetuated.
' For the above reasons, the application under section 151, C.P.C. To the above extent is .Accepted with the result that the possession of the land in dispute shall be restored to the petitioner. This application as regards compensation claimed shall now be proceeded with.
' The order shall issue to the District Collector to put the petitioner in possession of the land in dispute particulars of which shall also be specified and relevant extract of the Revenue Record/Jamabandi shall also be furnished. The District Collector shall restore the possession within two days of the receipt of the order from the Civil Court, who will also direct the S.S.P., Lahore to depute an officer not below the rank of D.S.P. To facilitate the delivery of possession and compliance of the order of the Court. The Director-General, Pakistan Ranagers, Ghazi Road, Lahore, shall also be informed of the order of the Court regarding delivery of possession as the land in dispute is situated near the Zero Line of the Border.
' The files shall be returned to the Executing Court through special messenger and the order restoring possession alongwith relevant documents shall be forwarded to the District Collector positively by 3rd September, 1996. A copy of the compliance report of the District Collector submitted to the Civil Court shall also be forwarded to this Court.
' With the above direction, this civil revision is accepted with costs.