Aizaz Ullah and another Vs Nawabzada Qadir Khan

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PESIIAWAR FtrGH COURT. PESIIAWAR

JUDICIAL DEPARTMEN'I

\Mrit Petition No. 17202023.

Aiaz Ulhh and aaotherus. Navabda @dirKhan

Darc of hearius f9.03.2025.

For rrtifione;r: Mr-Khalil lgtf- Adwr:ete-

Resrxmdentu: Itlr. arllf Akhar- Adwrate-

TUD GME}.[T

MUIIAMMAD NAEETVI ANVTrARF Respondent No.l had filed an objection in execution petilion belbre the leamed Additional District Judge-I, Mardan, alleging therein that the proceedings in I.lxecution petition No. 22/6 has bcen conducted as a result of the inter se collusion ol' the present petitioners and that of respondents No.2 and 3 and the house in respect of which comprornise was produced belbre the executing court :urd joint statement was recorde(l is, in fhct, his owned and possessed l)roperty, situatcd in Alla<li deh. He also alleged that he is neither the judgrnent{ebtor nor that he has derived his title fiorn him, thus, filing of execution petition to the record roorn being satisfied based on dre staternent of decree holder urd judgnent debtor about his in question iue inconsistent and in operative upon his riglrt. His objection petition was resisted by the present petitioners on difl'erent legal and fhctual objections and Para No.l of the olrjection petition was categorically denied. Leamed executing court, alter hearing the argunrents of thc present petitioners and rcsJrondent No,l has held the objection petition rnaintainable tlrrough the irnpugred order, dated i10.03.2023, which has now been questioned by the petitioners by liling the irmtiurt petition.

2, Mr. Khalil Nasir, Advocate, leanred counsel lbr the petitioners, contended that the objection petition of respondent No.I was not entertainable fbr lurther process because the execution petition has been liled antl satisficd. According to hinr, il'iury right of respoxlent No.l relates to the house which was the

subject rnatter of the courpromise, he may lile an application urrder sectiorr 47 <>t the Code of Civil Procedure "C.P.C". He added tlrat since the executing court has become lunctus ollicio, hence, the proceedings could not be revived and, even if the alleged riglrts of respondent No.l are based upon iury deed wlfch requires proof thereof, he may file regular suit. At the end of his subrnissions, he contended that possession of the house has been handed over to the petitioners, thus, the objection petition lus becorne inl'ructuous and requires dismissal.

3.Contrarily, learned counsel for respondent No.l contended that regular civil suit is barred under section 103 C.P.C and the objection petition of respondent No.l is in continuig, of the execution proceedings where the riglrt of the applicant/ respondent No.l slull be detennined by the executing court. He rnaintained tha! even if the possession was handed over to the decree holder or any other person claiming thereunder, the person aggrieved tluough a complaint is required to establish his status ancl if he proves drat he was bonalide clairnant of the property then the possession shall be restored to him.

4.We have heard learned counsel for the petitioners and respondent No.l ald with their valuable assistance we have gone tluough the lile and docuurents appended therewith.

5.During pendency of this petition, petitioners filed a CM No. 2298 lbr placing on record the deposited slip lbr a sum of Rs. 5000/-, dated 20.11.2024 pursuance to the direction of this court Ibr resurrection of writ petition, when it was dismissed fbr non- prosecution, thus, the instant CM, in view of the contents qua the direction of this court, dated 13.11.2024, coupled with allidavit is allowed.

6.Scrutiny of the record reveals tl.l:rt Nzaz Ullah (petitioner No.l) had sued Mujahid Khan (respondent No.2) lbr recovery of Rs. 44,91,000/- based or lcp-arNama', dated 16.07.2018, under Order XXXVII C.P.C belbre the District Judge. 'fhe suit was decreed on 19.02.2019 fbllowed by thc execution petition. The Judgment-debtor was put on notice and during execution proceedings, respondent No.3, the I'ather of the judgment-debtor,

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arld petitioners No.l and 2 appeared and produced a comprornise de ed rnanif'esting therein that respondent No.3 (Mulnmmad Sajid) the fadrer of the judgment-debtor is owner of the house constructed over an area of live rnarla, situated in the Mohalla Sher Dil Khan of the Revenue Estate of Hoti, within the viciniq, ol Abadi deh, with the description mentioned therein, owned and possessed by him. It was agreed befiveen him and the petitioner No.l fbr settlement of the issue ol'decretal amount of Rs. 44, 91,000/- and that of Shah Zarrrar, (petitioner No.2) arnounting to Rs. 2050, 000/-total amounting to Rs. 6541000/- has been settled tlrrough transl'er of the house with which, thereafter, he will have no concern and connection as both the decree passed against respondent No.2 lnve been satisfied, proper registry shall be executed in favour of the petitioners. 'Written tenns of the cornprornise dated 15.10.2022 were produced and statement of petitioners No.l and 2, the decree holders, and respondent No.3, the I'ather of judgment debtor, was recorded, who have reiterated and endorsed the contents of the compromise, Ex.PA. All tluee (petitioners No.l ald 2 and respondent No.S) thunb impressed the statement befbre the court and adrnitted their thumb impressions and signature on Ex,PA as correct. Executing court, vide order dated 15.10.2022, has liled the execution petition being satisfied in connection with decrees passed in favour of petitioners No. I ald 2, consequently, execution petition No 2lil0 and 37/10 were consigned to the record roorn. Respondent No.l alleged that alter completion of the execution proceedings which were concluded with their collusion inter se, local police were directed to hiurd over the possession of the house to decree holder of money decree and he was astonished that the house owned and possessed by hirn was rnade the subject matter with which respondent No.3 had got no concem. The petitioners were put on notice, who have refuted the conteuts objectionL/petition, which was held maintainable by the learned executing court. It is worth mentioning that respondent No,l alleged hirnself to be the owner of the house, which fact was denied by the petitioners tlrrough their vwitten reply.

7.[Incloubtedly, dre execution petitions were filed but t]re application has got its root in execution petitions and the order thereon, which were liled to recor<l room, based on the settlement in connection with the house alleged by the petitioners to be his ownership in posscssion. A.ny person who is resisting the execution petition and not the judgrnent debtor or deriving title thereof nray approach to the execution court lbr redressal of his grievance, upon which the execution court has to inquire the ruatter, il' his objection is lbund correct then procecdings against his interest are stayed and if he is dispossessecl, possession is to be restored to hirn, othcrwise his objection petition is to be disrnissed. This is thc procedure as provided in the procedural law. Order XXI rule 99 is in respect ol' the resistance or obstruction of the bonalide claimant, which, fbr ready ref'erence, is reproduced as un(ler:

?esishnce or obstnrction bv bonafide cleiment - Where the court is satisfied that the r€sishnce or obstruction was occasioned by any person (other than the judmentdebtor) claimine in cood faith to b rn of the nrrrrrertv on hiq owu account or oD account of some Derson oth€r tban the judgmentdebtor. the court shall make an order dismissing the application' 'Ihe abovc reproduced Rule is to be read in dte context of the provisions ol' Rules 97 and 98, which pertain to the execution of the decree and resistance of tlte possession by any person, rnaking al application to thc court conrplainittg of' such of resistance or obstruction. In the matter in hzurd, respondent No.l tluouglr his application is clairning hirnsell' the bonafide owner and possessor ol' the property then irrespective of the lact as to whether execution petition is filed or otherwise, the objection has got its nexus with the execution petition lbr which neither respondent No.l could be directed to file a regular civil suit nor to present an application under Order 47 C.P.C. There is preclusion, barring the institution of tresh suit under Rule 103 C.P'C according to which detennination ol' all questions arising as to the title or interest in, or possession o1, itntuovable property between an application under rule 97 and the opposite-parry or between an

applicant under rule 100 and the opposite-party, shall be adjudicated u1>on ald detennined by the court, and no separate suit slmll lie lbr detennination of any such Inatter. Rule 100 of Order XXI is relevant in view of the objection raised by the petitioners that the execution petition has been filed being satisfied whereas the ibid is in respect of the dispossession by the decree holder or purclnser troru the propergr, according to which, whcrc any person other than thc .iudgnent debtor is dispossessed of iuunovable property by the holder of a decree for the possession of such property or, where such property has been sokl in exccuting ol a decree, by the purchaser thereol, he may ulake an application to the court cornplaining of such dispossession. Sub rule 2 of Rule 97 provides the procedure lbr detennination of a question which reads a^s:

'The Court shall fix a dav for investicafinc the metter and shall surnmon the mrtv acainst wlrom the aoolication is made to aDDear and answer the same."

Whereas rule l0l is for the redressal of the person who is lrcnalirle claimaut, which is reproduced hercil below "Where the court is safifred that the applicant was in possession of the propertv on his onvn account or on account of some Dersou other than the iudroneutdebtor. it direa that the applicant be put into oosEession of the proDertv."

Ref'ererrce rrray be nrade to tlte case" LlstKhunhid Benm etc, venus. illr.Ghulam Kubn etc." (1-9E2-SCMB-9Q) wherein it was observed:

It follouns consistently from these decisions of this Court that an execrrting C.,ourt has the power to entertain and adjudicate an objectioo petition filed by persons not claiming through &e judgnent debtor, even before 6eir physical dispossession from the property. This has to be distiDguistrcd from the right conferred by law on such a party to prefer an oblrtion without resisting the execution or without being dispossessed from the prop€rty,

5.It is indisputable that respondent No.l was neither judgrnent debtor nor was deriving the title from judgrnent debtor. It is also undeniable that the property is situated in Abadi deh, and the boundaries thereof are the sanle which were lnentioned in the

deed/comprornise produced belbre the cxecuting court and the description which has been enurnerated in the application of the petitioners. 'I'he only question requiring detennination frotn the cxecutlon court rs as to whether f'ather o[ re iudsrnent<lebtor has qot connection with the house. i[ not. whether the house of respondent No.l coukl be alienatedP 'l'he above questron requires recording ol' evidence, both flrorn petitioner and responrlent No.l.'Ihere is no cavil with the proposition drat where any person other than the judgrnent debtor is dispossessed from irnmoveable properf by the decree holder, he nray make an application to the Court complaining o[ such dispossession. The tenn 'any person' used in Order XXI Rule 99 CPC rneans a strarlger to the suit who was not irnpleaded in dre original suit.

Once an application under Order XXI Rule 99 is filed, it is incuurbent upon the executing court to consi<ler all fbr and against clairns including the riglrt, title zurd intcrest of the parties under Order XXI Rule 101 which bars a sepruate suit by mandating the execution court to decide such a dispute.

8.In addition tn tle above, Ieamed executing court has only urade/passed an order by holdirg that objectiorl petition is rnaintainable, which has not yet decided the fate of the allegation o[ respondent N<1.I in connection with his ownership or possession, as denied by the petitioners. Moreover, the order of leiule<l executitrg court is interlocutory in nature, and it is settled principle [ha[ nolr- interl'erence by this court in the interlocutory or<ler is a rule whereas interl-erence is an exception. RelHahib Benk and vs. Sved Zia ul llasaa I

SCMR 60)

9.So lar as the objection o[ thc learned counsel for the petitioner that the leanled executing court lus become finctus ollicio and could not proceed with the tnatter ol' the objection petition, which is urisconceived and repelling to the provisions of Order XXI C.P,C and the scope of the execution proceedings qua dctennination of right of any person who is claiming himself to be olvner or l)osscssor of the property. In view of Rule 103, no sepante suit shall lie fbr such detemlination' Moreover,

application under section 47 C.P.C could be liled in connection with execution, satisf'action a:rd disclnrge of the decree whereas the rnatter in hand is in respect ol-the claim ol'respondent No.l which has got no lir* with .Scction 47 lbr detennination ol'his riglrt. The order of l,eamcd cxecuting hokling the objection petition as rnaintainable has caused no prejudice to the iuterest of lletiti<xrer or adversely al}'ecte d his rights as lixecuting court shall decide the thte <ll'execution petition in accordance with procedurc provided urder ()rder XXI, thus, the instant petition being berefi ol'rnerit is hereby disnrissed, howeve r, costs sltall fallow the event. Announced 19.Ulil25

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M 7-rlrd CS (DU) HoD'ble Mr.JBte Muh,uDorad NNnr Anstr & Hon'ble Mr.Iurtice Dr. Nrurrhid lql,al,