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Suit No.327 of 1978 and Execution No.130 of 1980, decided on 6th July, 1986.

---O.XXI, Rr.43 & 99--Execution proceedings--Order passed for attachment of property-- Intervenors in possession filing applications against order and making a mere allegation regarding ownership of property without producing any evidence of such ownership- Applications dismissed.

P L D 1959 Lah. 511 ref.

Muhammad Ilyas v. Haroon Textile Mills and another P L D 1977 Kar. 681 rel.

The Plaintiff has filed execution application against the judgment debtors. The application was granted against judgment-debtor No.5 by attachment and sale of movable property under Order XXI rule 43 C.P.C. Miscellaneous application No.756183 has been filed by Mrs. Habiba Kassim wife of judgment debtor No.5 and Mushtaq Kassam Chapra son of defendant No.5 stating that house bearing No.23 Karachi Memon Cooperative Housing Society belongs to the intervenor No.l i.e. wife of Judgment debtor No.5 and she is living there alongwith Intervenor No.2. It has also been stated that all the movable and household articles lying in the afore-stated house belong to the intervenors. In these circumstances, it has been prayed that the properties should not be attached.

C.M.A. 63184 has been filed under Order XXI rule 99 C.P.C. read with section 151 C . P. C . for dismissal of the execution application as the property sought to be attached belongs to the intervenors and it has been prayed that the decree holder be restrained from executing the decree against the property of the intervenors. Mr. Ashraf Qureshi the learned counsel for the decree-holder has contended that the properties have not been actually attached by the Nazir and therefore, the applications filed by the intervenors are premature and are liable to be dismissed. Mr. Abdul Inam the learned counsel for the intervenors has contended that the Executing Court has power to pass such an order under its inherent jurisdiction. In this regard reliance has been placed on the observation made in P L D 1959 Lah. 511. In this case a third person not a party to the decree applied to the executing Court under' Section 151 and Order XXI rule 99 C.P.C. that she being in possession of the house in her own right the execution application for delivery of possession of the same to the decree-holder be dismissed. A plea was raised that the intervenor could come to court only under rule 100 of Order XXI after she had been dispossessed. It was observed as follows:-

"That the Court has jurisdiction to determine whether a decree should be executed by delivery of possession of property which is in the occupation of a particular person is not denied. The only point is whether this jurisdiction can be exercised at the instance of the person in possession only when that person has already been illegally dispossessed. I do not see why the exercise of this jurisdiction should be limited to a situation which arises by the dispossession of a person. Order XXI. rule 100 gives a right to a party to apply but when the party has not yet been dispossessed, it is a matter of discretion with the Court as to whether it would or would not determine the question beforehand. It may be that some interested person wants to use such a procedure for delaying execution. In that case the Court will refuse to entertain such an application. But the jurisdiction to entertain it does exist.

I would, therefore, hold that the Court can determine the question as to whether a decree can be executed by the ejectment of a particular person at any time and that the present application was maintainable in law."

Mr. Ashraf Qureshi has referred to Muhammad Ilyas vs. Haroon Textile Mills and another P L D 1977 Kar.681 where intervenors had filed an application under Order XXI rules 21, 26 and 58 and it was held that an application cannot be entertained before attachment of property in fact is made. It was further observed that objection to attachment of the property could be entertained only after the property is attached and not before. The provisions of rules 60 and 62 C.P.C. are attracted also to the attached property. It was doubted that under inherent power such a relief can be granted and it was observed that for seeking such relief also a prima facie case to show that intervenors are the owners of the property sought to be attached should be made out. The observations in this judgment are equally applicable to the facts of the present case. The intervenors have merely made an allegation regarding ownership of the property without producing any evidence of such ownership. In these circumstances, both the applications are dismissed.

M.Y.H./H-21/K Petitions dismissed.

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