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Civil Revision No. 10 of 1977, decided on 21st August, 1977.

-- S. 151 and O. XXI, r. 35 (2)-Respondents securing decree for joint possession of property as co-sharers-Warrant for joint possession of property issued by Court in proceedings for execu tion of decree-Executing agency, held could, not put respondents in actual possession of such property by breaking open locks of shop in dispute--Appeal against such order being filed and stay order being issued, Court of first instance, held further, bound in exercise: of its inherent powers to redress wrong done and to restore possession of shop to petitioner.

Syed Ghulam Hussain Shah for Petitioner.

Syed Tassadiq Hussain Shah for Respondents.

This revision arises out of an application under section 151-C. P. C, lodged by the petitioner in the Court of Additional Sub Judge, Muzaffara bad which was dismissed by that Court on 9th February, 1977.

The facts of the case briefly are that a suit for possession of the pro perty in dispute was instituted by the respondents in the Court of Addi tional Sub-Judge, Muzaffarabad which was disposed of in accordance with law. Against the decision of the Additional Sub-Judge both the parties went up in appeal to the High Court where the appeal of the peti tioner was dismissed and that of the respondents was partly accepted and a decree for the joint possession of the property in question was passed accordingly.

It was in the execution proceedings of that decree that instead of symbolic possession of the property in dispute in pursuance of the decree passed by the High Court in favour of the respondents, the actual posses sion was delivered to the latter contrary to the provisions of law contained in order XXI ; rule 35 (2), C. P. C. Thus the application for restitution of the property m dispute was made to the Court concerned under sec tion 1 51, C. P. C.

The learned counsel for the parties were heard.

It seems to me that the warrant for joint possession of the property iii dispute was issued by the Court in accordance with law and it was sub sequently acted upon as required by Order XXI, rule 35 (2), C. P. C. vide report of the Girdawar dated 21st July, 1974 at page 5 of the files pertaining to the execution proceedings. But afterwards through the efforts of, the respondents the executing agency put them into actual possession to the property in dispute by breaking open the shop in possession of the petitioner for which the respondents have had a decree for joint posses sion as co-sharers of the former. It was during the absence of the peti tioner that the possession of the shop under lock was delivered to the respondents and the articles belonging to the petitioner lying within the shop were handed over to a third person by their removal from the shop. The decree for joint possession of the shop in question was satisfied in accordance with law but the respondents wanted to have the actual possession of the shop in question which they, on the basis of a decree for joint possession, were not to have as such as in case of a decree for ex clusive possession one could have the physical possession of the property decreed as such. The respondents applied to the Court under Order XXI, rule 35 (2), C. P. C. for delivery of the actual possession of the shop but the executing Court without caring to go through the relevant law and the papers submitted to it by the executing agency, sent the papers back to the executing agency with a similar endorsement as was previously done by it, which is to the effect that the execution of the warrant for joint possession should be fully carried out in accordance with law, whereas it had already been carried out according to law as pointed out earlier. There was no specific order of the executing Court for breaking open the lock of the shop under the possession of the petitioner. The executing agency, quite contrary to the provisions of law, put the respondents in physical possession of the shop in question. Thus the respondents were guilty of an abuse of the process of the Court thereby gaining an unfair advantage by the use of rule of procedure which was not applicable to the execution of the warrant in the manner it was done thereof. The appeal or an application for leave to appeal against the decision of the High Court is still pending in the Supreme Court wherefrorn an order for stay of execution of the decree was also issued but before it could be conveyed to the executing agency the warrant issued in pursuance of the execution of the decree had already been acted upon twice, once in a legal manner and for the second time it was also illegally taken into account as if it was a warrant for specific possession of the property in dispute. Under these circumstances, the Court of the first distance below in exercise of its inherent powers was bound by law to redress a wrong done to the petitioner thereby restoring the possession of the shop in dispute to the petitioner which was illegally delivered to the respondents.

Therefore, I allow this revision petition and direct the restitution of the shop in dispute to the petitioner. The status of the parties in respect of the shop in question shall stand determined in accordance with the pro visions of law under Order XXI, rule 35 (2), C.P.C. as it stood in execution of the decree for joint possession of the same prior to the actual possession delivered to the respondents subject to the decision of the Supreme Court.

M. Y. M. Petition allowed.

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