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Petition for Revision No. 134 of 1951, decided on 27th June 1952, against the judgment and decree of Haji Muhammad Khan, Senior Sub‑Judge, Peshawar, dated 17th February 19551, whereby an appeal by respondents (1 to 4) against the order of Shah Abdur Rashid Sub‑judge, 4th Class, Peshawar, dated 8th November 1950, dismissing the objection petition of respon dents (1 to 4) was accepted.
S. 47‑Representatives of dead party not brought on record‑Decree against dead person or nullity‑Objections by representatives of dead person not maintainable under section 47 but under Order XXI, rule 97 Appeal not competent.
Objections by representatives of a dead person are not maintainable under section 47, Civil P. C., but under O. XXI, rule 97. Since the objectors are strangers to the decree, no appeal can be competent against the order passed under this provision of law.
Ashiq Hussain, for petitioner.
Nemo for Respondents.
‑4 kanals 11 marlas of land, bearing Khasra Nos. 66 and 67 situated in Tirahi Bala, was the property of Faiz Talab, which he by a sale‑deed dated 7th August 1945, sold in favour of Abdul Ghafoor for Rs. 600. In the deed it was mentioned that the property was already under mort gage with Hussain Khan in lieu of Rs. 300 for a period of 20 years, and that Abdul Ghafoor would pay that amount to Hussain Khan some time after the execution of the deed and balance to him in presence of the Sub‑Registrar. The deed was duly registered and the amount of Rs. 300 paid to the vendor as contemplated in the deed.
Muhammad Zaman minor pre‑empted this sale and brought a suit for possession, alleging that Abdul Ghafoor had paid Rs. 300 to Hussain Khan and he was thus entitled to get the possession of the property straight away on payment of Rs. 600. He, however, pleaded in the alternative that if it was proved that Hussain Khan was not paid the amount mentioned in the deed, then he should be granted a decree for possession, subject to Hussain Khan's mortgagee rights on payment of Rs. 300.
Faiz Talab, Abdul Ghafoor and Hussain Khan were im pleaded as defendants in the case. There was a rival suit brought for pre‑emption, but that is not material for the purpose of deciding this case.
Abdul Ghafoor defendant hotly contested the suit on several grounds inter alia that he had not paid any amount to Hussain Khan, and that the property was still under mortgage with him. Hussain Khan, though, served, remained absent, and ex‑parte proceedings were taken against him, on 2nd September 1946.
The following issues was framed in the case :‑
1. Whether the plaintiff has a superior right of pre‑emp tion as against the vendee and the rival pre‑emptor
2. Whether Rs. 600 were fixed in good faith or paid
3. What is the market value of the land in suit
4. Whether the plaintiff and the vendor belong in the same agricultural group, and the sale is not in contravention of the Punjab Alienation of Land Act
5. Whether the plaintiff has waived his right of pre emption
Curiously enough although Abdul Ghafoor had denied that Rs. 300 had been paid to Hussain Khan, no issue was framed on this point.
Ultimately without touching the question whether the mortgage in favour of Hussain Khan had been redeemed or not. Abdul Wahid Khan Sub‑Judge, 4th Class, Peshawar on 10th May 1948, granted a decree in favour of the plaintiff for the possession of the land in suit on payment of Rs. 600, which amount had already been deposited in Court.
Muhammad Zaman on 4th April 1949, made an application for the execution of the above decree, and delivery of posses sion of the property in suit to him. A warrant for that pur pose was issued, when on 3rd March 1950, Abdur Rashid, Saadat Khan, and Mst. Basro Jan, the children, and Mst. Gulla Jan, the wife of Hussain Khan put in an objection petition to the effect that they were in possession of the property in suit in their own right and as the representatives of Hussain Khan, who had since died, and that the decree‑holder was not entitled to get it from them. On 17th April 1950, the same persons made another application, saying that Hussain Khan had died on 24th April 1947, and, therefore, the decree granted in favour of Muhammad Zaman, so far as Hussain Khan was concerned was a nullity, and that in execution of such decree, the plaintiff decree‑holder was not entitled to dispossess them. Both the applications were fixed for hearing on 17th May 1950, when the first application was dismissed in default, because the objectors were not present. On the same day, however, the same objectors were marked present in the second applica tion, which was adjourned to 30th May 1950, for recording the evidence of the parties. These two directly conflicting orders passed on the same day are certainly very peculiar and betray carelessness displayed by the presiding officer. The same objectors could not be present in one file and absent in the other. In the second petition the learned executing judge recorded the evidence and found that Hussain Khan had died on 24th April 1947, and that as no legal representatives of his were brought on the record, the decree in the pre‑emption suit as against him was a nullity. He further held that the objectors should have established their title to the property in suit, and their right to retain its possession in their own name, and that since they had not done that the objection petition was without, force and was, therefore, liable to dismissal.
There was an appeal against this order, which was accep ted by the learned Senior Sub‑Judge, Peshawar on 17th February 1951. He agreed with the learned executing Court that the pre‑emption decree as against Hussain Khan was a nullity, but held that the objectors in execution of that decree could not be dispossessed. An objection was raised before him that no appeal was competent, but the learned lower appellate Court held that the order under appeal was covered by the provisions of section 47, Civil Procedure Code and hence appealable under section 96 of the same Code.
Muhammad Zaman plaintiff has come up in revision to this Court and again an objection has been raised that no appeal was competent against the order of the learned Sub‑Judge, 4th Class, dismissing the respondent's objection petition against the delivery of possession to petitioner. An objection has also been raised that as the first objection application had been dismissed in default and no appeal or revision was preferred against it, that order had become final and operated as res judicata so far as the second application was concerned.
This latter objection I am not prepared to entertain in view of the fact that the two orders dismissing one petition on account of the absence of the petitioners, and adjourning the other marking the same petitioners present could not be reconciled with each other and were on their very face foolish and perverse. I will take the order of dismissal of the first application to mean that as the second application had been put in, it was not necessary to proceed with two applications of the same nature at one and the same time.
The first objection, however, that no appeal was competent against the order dismissing the respondents' objection petition is well founded and must prevail. In order to make the order of the executing Court appealable it has got to be brought within the four corners of section 47 Civil P. C. Under this section all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge, or satisfaction of the decree have got to be determined by the Court executing the decree, and not by a separate suit. Hussain Khan had admit tedly died before the decree was granted in favour of the plaintiff‑petitioner. It cannot be denied and is in fact well established law that the decree as against him was a nullity. The necessary consequence of this proposition of law will be that neither Hussain Khan nor his heirs of representatives shall be either the parties to the suit or the representatives of such parties. Tile objections by the representatives of a dead person would, therefore, be not maintainable under section 47, Civil P. C., but under O. XXI, rule 97 of the same Code. Since the objectors were strangers to the decree, no appeal would be competent against the order passed under this provision of law. I consequently hold that no appeal was competent to the Court of the Senior Sub‑Judge, Peshawar.
The result is that I accept this revision petition, set aside the order of the lower appellate Court, and restore that of the learned executing Court with costs throughout. Pleader's fee Rs. 16.
A. H.
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