Law: Civil Procedure Code (V of 1908)

Section: O. XXI, rr. 36, 96, 97, 99, 100

(a) Civil Procedure Code (V of 1908), O. XXI, rr. 36, 96, 97, 99 & 100 read with S. 144-Provisions of 0. XXI, rr. 36, 96, 97, 99 & 100-Applicable only to execution proceedings and not to application for restitution under S. 144. (b) Civil Procedure Code (V of 1908), S. 144 read with Transfer of Property Act (IV of 1882), S. 52 [as amended by Transfer of Property and Registration (Sind Amendment) Act (XLIII of 1939), S. 2]-Word "parties" in S. 144, C. P. C. Includes legal representatives whether by assignment or devolution ----Section 52, Transfer of Property Act not an overriding provision controlling operation of S. 144, C. P. C. The appellant was inducted as a tenant in the premises after partial execution of decree against the earlier tenants. The appeal of earlier tenant was at the time pending. It was subsequently accepted and the earlier tenant moved an applica tion for restitution under section 144. The plaintiff filed objec tion under Order XXI, rules 36, 96 and 99, C. P. C. on the plea that since no notice of the pending proceedings was registered the amended section 52 of the Transfer of Property Act was not applicable, the transfer was thus not prohibited and the appel lant was not bound by the result of the pending appeal of earlier tenants and, therefore, in restitution proceedings he could not be dispossessed as he was not a party to the suit and appeal nor his induction as a tenant after partial execution of the decree would make him a party within the meaning of section 144, C. P. C. Held, it is an admitted position that the appellant had taken possession from respondents in whose favour the trial Court had decided the ejectment application. This was after decree was partially executed. It cannot, therefore, be denied that the appellant is claiming through respondents. It is not clear from the contention as to how by invoking the non-applicability of amended section 52 of the Transfer of Property Act, the appellant claims to be excluded from the definition of the word `parties'. Rule 36 only applied to the occupant or a tenant who is not bound by the decree to relinquish such occupancy. Similarly, rule 96 protects the…