Monday, 16 September 2013

Can the property be attached in a recovery of dower suit?

PLJ 2011 Lahore 721
[Bahawalpur Bench Bahawalpur]
Present: Ch. Shahid Saeed, J.
Mst. TASAWAR YASEEN--Petitioner
versus
MUHAMMAD IQBAL QURESHI etc.--Respondents
FAO No. 23 of 2010, heard on 28.2.2011.
Civil Procedure Code, 1908 (V of 1908)--
----S. 60--Objection petition--Suit for recovery was decreed--Execution petition was filed--Property of surety be attached for satisfaction of decree was ordered--Warrant of attachment was issued by executing Court--Surety bond was given against dower at time of nikah--Property cannot be attached for satisfaction of decree--Validity--No doubt, entry in nikah nama was sufficient proof of transfer of the property and it requires no registration or any other document for completion--Husband of petitioner was not entitled to mention the property in surety bond as he has already relinquished his right and property in dispute belongs to petitioner objection--Petition was allowed.  [P. 723] A
Mr. Abdul Majeed Bhatti, Advocate for Petitioner.
Mr. Amir Aqeel Ansari, Advocate for Respondents.
Date of hearing: 28.2.2011.
Judgment
The instant FAO is directed against the order dated 31.03.2010 passed by learned Addl:District Judge Bahawalpur by way of which objection petition filed by petitioner was dismissed.
2.  Brief facts of the case are that Muhammad Iqbal Qureshi Respondent No. 1 filed a suit for recovery of Rs. 12,50,000/- against the Respondent No. 2 which was decreed by the learned trial Court in which Muhammad Hafeez husband of the petitioner stood surety showing himself to be the owner of House No. BV-78 measuring 4 1/2 marlas situated in Mohallah Tonkian Bahawalpur City. Thereafter Respondent No. 1 filed an execution petition against Shahzad Semi Respondent No. 2. During the proceedings it was ordered that the property of Muhammad Hafeez surety be attached for the satisfaction of the decree. The warrant of attachment was issued by the learned Executing Court and the property mentioned in the surety bond filed by Muhammad Hafeez was attached. On 18.03.2010 petitioner filed an objection petition with the assertion that she is the wife of surety Muhammad Hafeez and their Nikah was performed on 12.12.1999 and the property in dispute mentioned in the surety bonds was given to her against her dower at the time of nikah, therefore, the said property cannot be attached for the satisfaction of the decree.
3.  The objection petition was resisted by the Respondent No. 1. The learned Executing Court after hearing the arguments of learned counsel for both the parties dismissed the said objection petition. Feeling aggrieved by the said order petitioner has preferred the instant FAO.
4.  Learned counsel for the petitioner contends that the order passed by the learned Executing Court is against law and facts and also without lawful authority; that the surety bonds were submitted on 23.05.2007 in which the property in dispute was mentioned whereas as per Nikah Nama on 12.12.1998 the said property was given to the petitioner by Muhammad Hafeez her husband. The said plot in dispute was given to the petitioner through an independent and special condition and the same was not the part of the dower mentioned in the Nikha Nama. Further submits that the petitioner has become the owner of the half share of the said plot and her husband was not entitled to execute the surety bonds regarding the said property in the Court as he has already relinquished his right regarding the said plot. That the citation upon which learned Executing Court has relied upon is not relevant to the facts and circumstances of the case in hand. Lastly learned counsel for the petitioner has relied upon PLD 2004 Supreme Court 10, 2005 MLD 376 and PLD 1996 Peshawar 64.
5.  On the other hand, learned counsel for the Respondent No. 1 states that as per Nikha Nama the said plot was given to the petitioner only for residence and the same was not transferred in favour of the petitioner at the time of her marriage and the husband of the petitioner validly stood surety in the suit. Further submits that petitioner having in league with her husband has filed the objection petition as marriage tie between husband and wife is still intact and infact the surety bond was submitted by Muhammad Hafeez with the consent of the; petitioner and at this stage the claim of the petitioner is unfounded and baseless. Further submits that already Mr.AbdulMajeed Bhatti learned: counsel for the petitioner has submitted Wakalatnama on behalf of the husband of the petitioner in the learned trial Court, which shows that the fact regarding the submission of surety bonds was already in the knowledge of the petitioner and she after joining her hands with her husband has filed the objection petition. Learned counsel has also supported the impugned order passed by the learned Executing Court.
6.  Arguments heard. Record perused.
7.  Undisputedly, the husband of the petitioner gave the surety on behalf of Respondent No. 2 for the payment of decretal amount but as per Column Nos. 16 and 17 of the Nikah Nama it is crystal clear that Muhammad Hafeez husband of the petitioner has given the plot in dispute to the petitioner for the purpose of residence. It was further mentioned in the column No. 17 that on demand the petitioner shall transfer his own share in favour of the petitioner. No doubt, entry in Nikah Nama is sufficient proof of transfer of the property and it requires no registration or any other document for completion. I am of the considered view that Muhammad Hafeez husband of the petitioner was not entitled to mention the property in dispute in the surety bond as he has already relinquished his right and the property in dispute belongs to the petitioner. It is pertinent to mention here that during the arguments learned counsel for the respondents produced the photocopy of the power of attorney with the assertion that the same was submitted in the learned trial Court on behalf of the husband of the petitioner by Mr.Abdul Majeed Bhatti Advocate. I minutely perused the said Wakalatnama. The name of the learned counsel is mentioned in the column of Advocate but his signatures are not present which shows that the same has been prepared fictitiously. Moreover learned counsel for the petitioner who is senior Bar Member has stated at bar that he has not submitted any power of attorney on behalf of husband of the petitioner in the learned trial Court. Therefore, I left no room but to accept the version of learned counsel for the petitioner. The learned Executing Court has committed illegality and material irregularity while passing the impugned order.
8.  For the foregoing reasons, the instant FAO is accepted and the impugned order dated 31.03.2010 passed by the learned Executing Court is set aside and objection petition filed by the petitioner before the learned Executing Court is allowed.
(R.A.)  FAO accepted.

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