Thursday, 9 October 2014

Property can be attached during execution of Decree

PLJ 2014 Quetta 65
Present: Mrs. Syeda Tahira Safdar, J.
Syed ZIA-UD-DIN etc.--Appellants
versus
Civil Misc. Appeal Nos. 26 of 2005 and 3 of 2006, decided on 30.4.2013.
----Ss. 12(2), 47 & 151, O. XXI, R. 30--Sale transaction of car--Vehicle was handed over to purchaser while documents were handed over to plaintiff--Remaining amount was not paid in agreed period--Custody was obtained through police--Ex-parte decree was remained unchallenged on part of judgment debtor--Application u/S. 47, CPC was filed during proceedings of execution by decree holder--Effect of--Validity--Whereby custody of vehicle was taken by police, appellant appeared before Court below with a claim of being a bonafide purchaser, and last possessor of vehicle, and by way of filing an application under Section 12(2), CPC, he not only challenged order of taking vehicle in custody by police, but also questioned judgment--Held: If purchaser had failed to make payment property would be sold, and remaining amount would be paid to decree holder by surety, and in ease of failure surety was bound to pay specific amount as damages--During course by way of filing an application decree holder succeeded to get hold of vehicle through Police with an assertion that it would provide a help in execution of decree--Court below while executing decree must remain within ambit of decree, and cannot go beyond it--If any transaction was held, it cannot be declared as null and void in grab of decree, nor he can be deprived of his right--Court below had failed to adopt procedure rather seemed to be bent upon to satisfy decree in either way without even going through relevant provisions of law--Vehicle, which was taken in custody though existed in name of decree holder, but was in possession of a person admittedly not a judgment debtor in proceedings--Further, fact was neither established, nor even asserted by decree holder that appellant was in custody of vehicle on behalf of judgment debtors--Trial Court though ordered for taking vehicle into custody, but there was no order for attachment of vehicle for purpose of execution--Court below treating mailer as of criminal, ordered for confiscation of vehicle, which was not only improper, but an illegality on its part--Failed to make out a ground of fraud or misrepresentation or want of jurisdiction, because he was only aggrieved from taking of custody of vehicle from him, in fact he had not questioned transaction held between decree holder, and judgment debtors.        [Pp. 70, 71, 72 & 74] A, B, C, D, E, F, G, H, I, M, Q
----S. 60--Property can be attached and sold during course of execution of decree--Court below without going into relevant provision, adopted course, which was not in conformity with given procedure, thereby, committed an error--No order for attachment was made, nor any process to effect was issued--Before issuing any process for attachment, and sale of a property, Court must satisfied itself that property which was made subject to execution must belong to a judgment debtor or over which he has power to dispose it of, or which is held in name of judgment debtor, or with any other person in trust for him, or on his behalf.            [P. 73] J & K
----O. XXI, R. 40--Order for attachment of property--No order for attachment of vehicle--Vehicle can be attached for purpose of execution of decree--As there was no order for attachment of vehicle, therefore, only taking over possession of vehicle by Police would not serve purpose, nor amounts to an order for attachment of property--Rather, it only amounts to deprive appellant from his right to remain in possession of vehicle, as he was neither judgment debtor, nor he was bound by agreement for restoration of its possession--Therefore, orders made in contravention of law were of no legal effect--Restoration of possession of vehicle to appellant was not against law--Mere taking into custody of vehicle by Police was of no legal effect.    [Pp. 74] N, O, P & S
----S. 12(2) & O. XXI, Rr. 58 to 72--Executing decree by way of filing objection--Filing of application within meaning of Section 12(2), CPC was not remedy available to him in circumstances--Decree holder was entitled for execution of decree in his favour, but while dealing with matter no order be made beyond terms in which decree stands--Decree in field was to be executed, and satisfied in terms in which it stand, but by adopting procedure, and course provided for purpose in the law.      [Pp. 74 & 75] R & T
M/s. Munir Agha & Qahir Shah, Advocates for for Appellant (in C.M.A. 26/2006) & for Respondents (in C.M.A. 03/2006).
Mr. Munir Langove, Advocate for Respondent (in C.M. A. No. 26/2005) & for Appellant (in C.M.A. 3/2006).
Date of hearing: 6.11.2012.
Judgment
The above titled appeals arising from the same proceedings, though separate orders were questioned thereby, but as the matter in issue was the same, and decision of one would have bearings on the other, therefore, to avoid any conflict in findings, it deemed appropriate to decide both the appeals by this common order.
2.  Brief facts of the case as appeared from perusal of the record that Syed Zia-ud-Din, the appellant in appeal No. 26 of 2005/ Respondent No. 1 in the Appeal No. 03/2006, filed a suit against Muhammad Akbar SiddiquiJamil-ul-Hassan Siddiqui, and Excise and Taxation Officer, whose names appeared as Respondents Nos. 2 to 4 in Civil Appeal No. 03 of 2006, thereby sought specific performance of the agreement dated 17 March 2001. It was his case that a sale transaction in respect of a vehicle, details whereof provided as Toyota Corolla bearing Registration No. QAK-876, Chassis No CE-80,6031637 Engine No. 0426829, was held between him (Zia-ud-Din), and Defendant No. 1 (Muhammad Akbar Siddiqui) in consideration of Rs.700,000/- (Rupees Seven Lac only). During course an amount of Rs.50,000/- (Rupees Fifty Thousand only) was paid at time of transaction. While for the remaining amount of Rs.6,50,000/- (Rupees 6 lac fifty thousand only), it was agreed between the parties that it would be paid after a period of two years. And for the purpose Defendant No. 2 (Jamil-ul-Hassan Siddiqui) stood surely with an undertaking that if Defendant No. 1 (Akbar Siddiqui) failed to pay the remaining amount he (Jamil-ul-Hassan Siddiqui) would pay the same. And for the purpose he agreed to sell his house situated at Sarhad Colony, Muhammad Rauf Town,Karachi. It was further agreed that in ease of failure an amount of Rs.200,000/- (Rupees two lac only) would he paid as fine. In result thereof the vehicle was handed over to the purchaser Muhammad Akbar Siddiqui, while the documents of the said property were handed over to the plaintiff Syed Zia-ud-Din. But, despite demands the remaining amount was not paid in the agreed period, nor thereafter, which resulted in filing of the suit.
3.  The perusal of the case files reveals that in both the appeals all the relevant documents were found missing, even the plaint, and written statements were not filed, therefore, it was hard to determine what was the plea of the parties taken before the trial Court. But, from perusal of the judgment of the trial Court dated 15th September 2005 the fact revealed that the Defendants No. 1 & 2/ present Respondents No. 2 and 3 failed to appear, therefore, the proceedings against them were held ex-parte. The trial Court passed the decree in terms:
"The present Civil Suit No. 10/2005 is decreed as ex-parte and the Defendants No. 1 & 2 are severally and jointly directed to pay the sale transaction amount of Rs. 6,50,000/- alongwith Rs. 2,00,000/- as fine to plaintiff forthwith and Defendant No. 3 is restrained from transferring the vehicle from the name of plaintiff on the name of defendant or anyone else."
4.  The decree holder Syed Zia-ud-Din filed an application seeking execution of the decree, which was entertained by the Court below. It appeared that during course of execution an application under Section 151 Civil Procedure Code (CPC) read with Section 47, CPC was filed by the decree holder to the effect that the questioned car had been sold, and being utilized, thereby its custody be obtained through police, to satisfy the decree. This application was allowed, and in compliance of the order, made by the executing Court for the purpose, the custody of the vehicle in question was obtained by the Police from Shabbir Ahmed the present appellant. Feeling aggrieved of the situation an application within the meanings of sub-section (2) of Section 12, CPC was filed by the appellant (Shabbir Ahmed) with a request that he may be made party to the proceedings, being purchaser of the vehicle from one Muhammad Ali in consideration of Rs.4,10,000/- in December 2003. It was his contention that the fact of sale, and purchase between him, and Muhammad Ali was within the knowledge of the plaintiff (Zia-ud-Din) prior to filing of the suit, which was with malafides. Further, the decree was obtained ex-parte through fraud, and misrepresentation, therefore, the judgment dated 15th September 2005, deserved to be set aside. In addition thereto it was requested that he be made party to the proceedings, and the mailer be decided afresh with restoration of possession of the vehicle to him.
5.  The decree holder/present Respondent No. 1 opposed the application with contention that the intervener (present appellant) failed to produce any document to establish his ownership of the vehicle, and having its possession. Further, till date the vehicle in question existed in his (present Respondent No. 1) own name.
6.  The record further revealed the fact that during hearing of the application, the appellant/intervener Shabbir Ahmed requested for delivery of possession of the vehicle to him, this application, though contested, but allowed by the Court below vide order dated 5th December 2015. Feeling aggrieved the decree holder Syed Zia-ud-Din questioned the order by filing Civil Miscellaneous Appeal No. 26/2005, the instant appeal, contending therein that the questioned vehicle till date existed in his name in the relevant record, and also subject matter of the Suit No. 10 of 2005. It was his contention that the only intention behind filing of the application was to frustrate the decree, and to deprive him (Syed Zia-ud-Din) of his right. He further denied existence of any legal right in favour of Bashir Ahmed, who being in league with the judgment debtors intended to defeat the decree. Setting side of the order was requested.
7.  The record further reveals that the application filed under Section 12(2), CPC by the appellant Bashir Ahmed was rejected by the trial Court vide order dated 6th February 2006, with an order for revival of the execution proceedings. This order was questioned by the appellant (Bashir Ahmed) by way of filing Civil Miscellaneous Appeal No. 3/2006. It was his contention that he was in physical possession of the vehicle in question, obtained through a valid sale between him, and one Muhammad Ali in 2003. It was further contended that as no restriction was imposed on Respondents No. 2 &, 3 (Muhammad Akhar Siddiqui, and Jamil-ul-Hassan Siddiqui) to enter into any transaction in respect of the questioned vehicle by virtue of the agreement dated 17th March 2001, therefore, in view of the facts no liability rests on the questioned vehicle. Furthermore, the trial Court lacks jurisdiction in the matter, as the questioned property was situated at Karachi. But, the Court below failed to consider these material aspects of the case. The prayer was for setting aside of the order, and the decree dated 15th September 2005, with a further prayer that he be arrayed as party to the suit for a decision on merits of the case.
8.  Learned counsel for the contesting parties i.e. the appellants Zia-ud-Din and Bashir Ahmed were heard. The remaining parties never appeared to contest the proceedings. The learned counsel for the appellant Bashir Ahmed argued his case with contention that the suit was for specific performance of the agreement dated 17th March 2001, but the document was neither properly tendered, nor made part of the record, therefore, not proved as per legal requirement. Furthermore, the questioned vehicle was taken into custody, without any reasons, from him on request of the decree holder by the trial Court ignoring the fact that the decree was in terms of recovery of money, therefore, the act was beyond the terms of the decree, therefore, not sustainable. The learned counsel referred to Order XXI Rules 47 and 59 CPC, thereby contended that the legal procedure was not adopted, therefore, the orders made were nullity in the eyes of law.
9.  The learned counsel for Respondent No. 1/decree holder/ appellant in Appeal No. 26 of 2005 rebutted the contention raised from the other side. It was his contention that he being the decree holder empowered, and entitled by force of law to adopt any mode for execution of a decree in his favour for its satisfaction. Further, the vehicle in question till date existed in the name of the decree holder (Zia-ud-Din), and as the judgment debtors failed to fulfill the liability on them as per the agreed terms, therefore, the mode adopted was appropriate in the circumstances. Therefore, the order passed for return of the vehicle was neither legal, nor just, and liable to be withdrawn. The learned counsel stated that the order amounts to deprive the decree holder from his right available to him on basis of a decree, which is still in field.
10.  The papers annexed with the appeals were perused, and perusal whereof reveals that the alleged sale transaction, the basis of the litigation, was between Zia-ud-Din, and Muhammad Akbar Siddiqui, while Jamil-ul-Hassan Siddiqui was surety to the transaction. The agreement, specific performance whereof prayed, was executed between SyedZia-ud-Din, and Muhammad Akbar Siddiqui, while Jamil-ul-Hassan Siddiqui singed it as surely. Further, the contents of the plaint as described in the judgment dated 15th September 2005, contained the fact that possession of the vehicle was handed over to Muhammad Akbar Siddiqui being the purchaser on execution of the agreement, while some part of the agreed sale price was paid at the relevant time. Though the suit was tilled as of specific performance, but the decree was in terms of payment of money, as it directed payment of the sale consideration of Rs.6,50,000/- alongwith fine of Rs.200,000/- to the plaintiff (Zia-ud-Din) by the Defendants No. 1 & 2 (Akbar Siddiqui, andJamil-ul-Hassan). In addition thereto permanent injunction was issued thereby Defendant No. 3 Excise and Taxation Officer was restrained from transferring the vehicle form the name of the plaintiff (Zia-ud-Din) in the name of any one else.
11.  This decree remained unchallenged on part of the judgment debtors, thereby attained finality. But, during course of its execution, in response to an order, whereby custody of the vehicle was taken by the police, the appellant Shabbir Ahmed appeared before the Court below with a claim of being a bonafide purchaser, and last possessor of the questioned vehicle, and by way of filing an application under Section 12(2), CPC, he not only challenged the order of taking the vehicle in custody by the police, but also questioned the judgment and decree dated 5th September 2005. But, during course the vehicle was released on surety in his (Shabbir Ahmed's) favour. As mentioned hereinabove this application filed under Section 12(2), CPC was rejected vide order dated 6th March 2006. But, he (Shabbir Ahmed) was allowed for the custody of the vehicle vide order dated 5th December 2005. Both the parties feeling aggrieved of the orders approached this Court by filing the instant appeals.
12.  The agreement dated 17th March, 2001 was the main document, on which the case of the plaintiff rests. While going through the same the facts were evident that the questioned vehicle was agreed to be sold by the owner Zia-ud-Din in consideration of Rs.700,000/-, and an amount of Rs.50,000/- was paid as an advance money. While the remaining amount was agreed to be paid within two years. But, it was further agreed between the parties that if the purchaser (Muhammad Akhar Siddiqui) failed to make the payment the property owned by Jamil-ul-Hassan Siddiqui (surely) would be sold, and the remaining amount  would  be paid to the appellant/decree holder by the surety, and in case of failure the surely was bound to pay an amount of Rs.200,000/- as damages. This fact also noted down in the agreement that the title documents of the referred properly were also handed over to the seller (Zia-ud-Din). The trial Court while deciding the suit made no order for specific performance of the agreement, rather the decree was in terms of payment of the sale price alongwith fine, and both the defendants i.e. Muhammad Akhar Siddiqui, and Jamil-ul-Hassan Siddiqui were held liable for making the payment severely and jointly.
13.  The papers annexed with memo. of appeal revealed that the execution application filed for the purpose failed to disclose the mode of execution of the decree required to be proposed by the decree holder. But, during course by way of filing an application the decree holder succeeded to get hold of the vehicle in question through Police Authorities, with an assertion that it would provide a help in execution of the decree. It appeared that some process was issued to the Police Authorities, but not found in the case file. The report submitted by the Station House Officer (SHO) Police Station SariabQuetta, in compliance thereof reported that the vehicle was taken into custody, and placed in the Police Station. The Court below proceeded ahead with the execution proceedings, but meanwhile rejected the application under Section 12(2) CPC, but prior to passing of the order handed over custody of the vehicle to the appellant Bashir Ahmed on supardagi (                    ).
14.  The way in which the proceedings were held by the Court below were in complete violation of the provided procedure. The Court below failed to observe that the subject vehicle was not subject mailer of the suit. Though the agreement was for sale of the vehicle, but the terms in which the decree was passed failed to speak that in case of failure on part of the judgment, debtors in payment of the decretal amount, custody of the questioned vehicle would be restored to the decree holder. Rather the decree only declared him (Zia-ud-Din) to be entitled for recovery of money the remaining of the sale price, and the fine. In addition thereto though the concerned authorities i.e. Defendant No. 3 was restrained from effecting of transfer of the question vehicle from the name of the decree holder to any one else, but there was no order restraining the sale, and purchase of the questioned vehicle. In view thereof while observing the established principle that a decree be executed, and satisfied in the terms in which it was passed. Therefore, the Court below while executing the decree must remain within the ambit of the decree, and cannot go beyond it.
15.  In case in hand the appellant (Shabbir Ahmed) claimed to have purchased the vehicle in year 2003, while the suit was decreed in year 2005, therefore, during the intervening period from 2001 to 2005, if any transaction was held, it cannot be declared as null and void in grab of  the  decree,  nor  he  can  be deprived of his right. Further, no relief to the extent was claimed in the suit. Nor the agreement, specific performance whereof was claimed, contain any clause to the effect that if the sale price was not paid as agreed, the possession of the vehicle would be restored in favour of the seller (Zia-ud-Din). Therefore, the decree is to be executed within the ambit of the order, and the decree made by the Court. Though a Court while entertaining an application filed for the purpose of execution of decree can adopt any mode provided in the Civil Procedure Code on the request of decree holder to satisfy a decree, the choice tests with a decree holder. But, no order can be made in contravention of the law, and the provided procedure.
16.  Order XXI, CPC provides complete procedure required to be adopted by a Court, while dealing with an application filed for execution of a decree. But, in present case the Court below failed to adopt the procedure provided therein, rather seemed to be bent upon to satisfy the decree in either way without even going through the relevant provisions of law. In present case the decree was in terms of money, therefore, the Order XXI Rule 30, CPC will be relevant, which describe the mode of execution of such a decree. It reads as under:
"Order XXI Rule 30. Decree of payment of Money------Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in prison of the judgment debtor, or by the attachment and sale of his property, or by both.
Order XXI Rule 32 describes the mode for execution of decree for specific performance, which reads as under:
"Order XXI Rule 32, CPC. Decree for specific performance, for restitution of conjugal rights, or for an injunction.--(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the ease of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree, for the specific performance of a contract or for an injunction by his detention in prison, or by the attachment of his property, or by both.
(2)  Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or with the leave of the Court, by the detention in prison of the directors or other principal officers thereof or by both attachment and detention.
(3)  Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year if the judgment debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may he sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.
(4)  Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5)  Where decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court. At the cost of thejudgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree."
17.  In addition thereto Section 60, CPC described the properties, which can be attached, and sold during course of execution of a decree. Therefore, the mentioned Rules, and the section are to be read co-jointly.
18.  In present case the Court below without going into the relevant provision, adopted the course, which was not in conformity with the given procedure, thereby committed an error. In case in hand the trial Court may have put on notice the judgment debtors for performance of their part, or take steps for attachment and sale of the property owned by them (judgment debtors) or may have arrested them. But, it was not done, rather only an order was made for taking into custody of the vehicle. No order for attachment was made, nor any process to the effect was issued. Furthermore, before issuing any process for attachment, and sale of a property, the Court must satisfied itself that the properly which was made subject to the execution must belong to a judgment debtor or over which he has power to dispose it of, or which is held in the name of judgment debtor, or with any other person in trust for him, or on his behalf. Therefore, only those properties covered within the described categories shall be made subject to execution for purpose of attachment, and sale. Further, the procedure provided in Order XXI, CPC required to be adopted for attachment of properly, and for its sale during course of execution.
19.  But in present case the vehicle, which was taken in custody though existed in the name of the decree holder, but was in possession of a person admittedly not a judgment debtor in the proceedings. Further, the fact was neither established, nor even asserted by the decree holder that the appellant Shabbir Ahmed was in custody of the vehicle on behalf of the judgment debtors. Above all the trial Court though ordered for taking the vehicle into custody, but there was no order for attachment of the vehicle for purpose of execution. The Court below treating the matter as of criminal, ordered for confiscation of the vehicle, which was not only improper, but an illegality on its part. Rather, in the circumstances a proper order for attachment of the property as required by Rule 40 of Order XXI, CPC was to be made, thereby the vehicle can be attached for purpose of execution of the decree. But it was not done. Therefore, in view of the narrated facts as there was no order for attachment of the vehicle, therefore, only faking over possession of the vehicle by the Police would not serve the purpose, nor amounts to an order for attachment of properly. Rather, it only amounts to deprive the appellant (Bashir Ahmed) from his right to remain in possession of the vehicle, as he was neither the judgment debtor, nor he was bound by the agreement for restoration of its possession.
20.  The Court below conducted proceedings without adopting the due course, thereby committed illegality, therefore, the orders made in contravention of law are of no legal effect. Therefore, the restoration of possession of the vehicle to the appellant Shabbir Ahmed was not against the law in the circumstances.
21.  As far as the application under Section 12(2), CPC is concerned the appellant Shabbir Ahmed though not party to the suit, but can avail the remedy provided in the section being included in the term "person". But, he failed to make out a ground of fraud or misrepresentation or want of jurisdiction, because he was only aggrieved from taking of custody of the vehicle from him, in fact he had not questioned the transaction held between the decree holder, and the judgment debtors. Further, he was not claiming any right accrued to him during the course, but affected by the judgment and decree passed in the questioned transaction. Therefore, filing of the application within the meaning of Section 12(2), CPC was not the remedy available to him in the circumstances. Rather, he can approach the Court executing the decree by way of filing objections under Rules 58 to 72 of Order XXI CPC. In view of the same the application filed by him was rightly rejected by the Court, below, but with wrong reasons.
22.  In view of the above discussion, as there was no order for attachment of the vehicle, therefore, mere taking into custody of the vehicle by the Police was of no legal effect. The possession was rightly restored  to  the appellant Shabbir Ahmed. The decree holder Zia-ud-Din can pursue with his application for execution of decree within the terms in which decree stands. Both the orders dated 05 December 2005 and 6th March 2006 passed by Civil Judge-II, Quetta, need no interference of this Court, with above observations.
23.  But, it is noted with concern that the way in which the proceedings were dealt with by the Court below was in complete negation of the provided procedure. It is advisable for the Court below to educate itself with the relevant law, and while dealing with an application for execution of decree adopt the procedure provided under Order XXI, CPC. and also kept in sight the provisions of Sections 36 to 74 CPC, and adopt the course permitted in the circumstances. A decree holder is entitled for execution of decree in his favour, but while dealing with the matter no order be made beyond the terms in which the decree stands. Same would be the case in the present case, the decree in field is to be executed, and satisfied in terms in which it stand, but by adopting the procedure, and the course provided for the purpose in the law.
Both the appeals i.e. Civil Miscellaneous Appeal No. 26 of 2005 and Civil Miscellaneous Appeal No. 03/2006 are hereby disposed of in the above terms, with no order as to costs.

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