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First Rent Appeal No. 492 of 1981, decided on 15th December, 1982.

‑‑ Ss. 17 & 22 read with Civil Procedure Code (V of 1908), O. XXI, r. 22‑Execution proceedings‑‑Rent Controller executing ejectment orders 'Held, not bound by provisions of O. XXI, r. 22, C. P. C.

‑‑ Ss. 13, 15, 17, 19 & 22‑Ejectment proceedings‑Protraction of rent proceedings for about seven years and execution proceedings for more than two years‑Held an instance of grossest abuse of process of law.

Ashiq Ali Abdullah for Appellants.

Mirza Abdur Rashid for Respondents.

Date of hearing : 15th December, 1982.

The appellants have challenged the order of learned Rent Controller, Karachi dated 21st September, 1981, whereby the learned Rent Controller had rejected the applications of the appellants filed during execution proceedings of ejectment order. The circumstances under which the order was passed may be stated briefly as under :‑

2. The predecessor of the respondent namely, Lal Mohammad filed an ejectment application under the West Pakistan Urban Rent Restriction Ordinance, 1959 against Mushtaq Ali and Sardar Ali in the year 1972. During the proceedings both the tenants i.e. Mushtaq Ali (who is predecessor‑in‑interest of appellants Nos. 1 to 10) and Sardar Ali Appellant No. 11 contested the ejectment application and even denied the relationship of landlord and tenant. However, the preliminary issue regarding the relationship was decided against the said tenants on 2,7th April. 1978. Thereafter on 16th September, 1978 an order was passed directing Mushtaq Ali and Sardar Ali to deposit rent and arrears of rent. They did not comply with this order, hence on 17th January, 1979 the respondents filed an application for striking off the defence of the tenants. The application remained pending for about 7 months because notices could not be served on the tenants although they had been contesting the case before the trial Court. Ultimately on 18th August, 1979 the defence of the tenants was struck off and they were directed to vacate the premises and hand over its possession to the respondents. .

3. The respondents then filed execution application before the same Rent Controller. At this stage the legal representatives of Mushtaq Ali filed an application under Order XXXII, rule 3, C. P. C. and Order XXII, rule 4, C. P. C. requesting that as Mushtaq Ali was dead and they were not brought on record was L. Rs. therefore, the decree could not be executed. Sardar Ali, however, did not contest the execution application. On the above application of the L. Rs. of Mushtaq Ali the learned Rent Controller passed an order on 21st September, 1981 whereby the application was dismissed and writ of possession ordered to be issued. This order has been challenged by not only the L. Rs of Mushtaq Ali but also by Sardar Ali who was very much alive at the time when the ejectment order as well as order in execution was passed. So far as appellant Sardar‑ Ali is concerned, he has no locus standi to challenge the impugned order passed during the execution proceedings by the learned Rent Controller.

4. Mr. Ashiq Ali Abdullah learned counsel for the, appellants has argued that as Mushtaq Ali was dead, therefore, no‑execution proceedings could be started without complying with the provision of section 50, C. P. C. and that as the execution application was filed after one year of the ejectment order, therefore, notice under Order XXI, rule 22, C. P. C. was also necessary. So far as notice under section 50 is concerned, it is not relevant at all because what it provides is that if a Judgment‑Debtor is dead then the decree may be executed against the L. Rs. There is no mention of notice in this section at all.

5. In respect of his objection that under Order XXI, Rule 22, C. P. C, the L. Rs. were entitled to notice because execution had been started after one year of the ejectment decree. This objection is also misconceived because the provisions of Order XXI, C. P. C. are not strictly, speaking applicable to execution of ejectment orders by Rent Controllers. Hence Rent Controllers, while executing ejectment orders, are not bound by the provisions of Order XXI, rule 22, C. P. C.

6. It has further been argued that as the L. Rs. of Mushtaq Ali were not brought on record, hence the ejectment order cannot be executed against them by virtue of Order XXII, rule 4, C. P. C. This objection is also misconceived because rule 12 of Order XXII specifically exclude the applicability of rules 3 and 4 of Order XXII to execution proceedings. In view of this legal position the learned Rent Controller was justified in rejecting the plea of the appellants.

7. The ejectment proceedings have been going on for the last 10 years. The ejectment order was passed when the tenants were duly represented by counsel before the Rent Controller. They have successfully protracted the rent proceedings for about 7 years and the execution proceedings for more than two years. This is an instance of the grossest abuse of the process of law.

The appeal is dismissed with costs. The learned Rent Controller is directed to proceed with the execution proceedings as expeditiously as possible.

S. Q. Appeal dismissed.

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