1992 PLP 1470 (CLC)

This revision petition is directed against the order dated 9‑5‑1979 passed by the learned District Judge, Gujranwala, dismissing the appeal filed by the petitioner against the order dated 27‑3‑1.978 passed by the learned Civil Judge, Gujranwala/Executing Court through which objection petition filed by the petitioner wits dismissed.

2. The facts giving rise to this revision petition shortly stated are that the respondents obtained an ex parte decree for the recovery of an amount of Rs.4,000 against Muhammad Ismail. Application for execution of the said decree was filed before the learned Civil Judge, Faisalabad who passed the decree. Since the property sought to be attached was situated at Gujranwala, therefore, the learned Executing Court at Faisalabad issued precept to the learned Civil Judge, Gujranwala for attachment of the property. The learned Civil Judge, Gujranwala, on 1.9‑4‑1977 passed an order for attachment of the house in dispute and the next date fixed by him was 20‑5‑1977. A perusal of the record shows that formal warrant for attachment of the house was issued by the Court on 4‑5‑1977 whereas according to the report of the bailiff recorded on the back of this warrant, the proclamation was made at the spot on 19‑5‑1977 through beat of drum as required by law. It has not been mentioned in the report of the bailiff that a copy of the order of the Court was either affixed on a conspicuous part of the property or upon a conspicuous part of the Court house. The petitioner purchased the house in dispute through sale‑decd registered on 19‑4‑1977 i.e. the date on which the Executing Court passed order for attachment of the house.

3. The petitioner filed an objection petition objecting to the attachment and sale of the property in execution of decree on the ground that he having purchased the same, the judgment‑debtor namely Muhammad Ismail ceased to have any title or interest in the property, therefore, the same could not be sold for recovery of the decretal amount. The learned trial Court dismissed the objection petition through order dated 27‑3‑1978. It was held that it was established that it was in the knowledge of the objector that the Court had passed attachment order and that in fact the house had been attached.

4. This finding was challenged by the petitioner in appeal filed before the learned District Judge, Gujranwala which has also been dismissed through order dated 9‑5‑1979 impugned in this revision petition.

5. The question which arises for consideration is as to from which date the attachment of the house was effective as against the purchaser from the judgment‑debtor. Order 21, Rule 54, C.P.C. provides that the attachment of the property shall be made by an order prohibiting the judgment‑debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. It also provides as a mandatory requirement that such an order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. In this case the order of the Court dated 19‑4‑1977 was proclaimed by beat of drum on 19‑5‑1977 as discussed above. Order 21, Rule 54, C.P.C. also requires that a copy of the order of the Court shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the Court‑house. There is nothing on the record that it was done. Sub‑rule (3) of Order 21, Rule 54, C.P.C. which was added by Lahore High Court Amendment is 'relevant in order to ascertain as to from which point of time the order of the Court regarding attachment of property, prohibiting its transfer is to take effect. It reads as under:‑

Sub‑rule (3). "The order shall take effect as against persons claiming under a gratuitous transfer from the judgment‑debtor, from the date of the order of attachment, and as against others from the time they had knowledge of the passing of the order of attachment or from the date of the proclamation whichever is earlier:" The petitioner did not claim any right under a gratuitous transfer, therefore, the order of the Court did not take effect from the date of order of attachment i.e. 19‑4‑1977. Since the petitioner purchased the house for valuable consideration, therefore, the order of the Court regarding attachment of the house would have become effective from the date of knowledge of the petitioner of the passing of the order of attachment or from the date of proclamation which ever was earlier. The learned trial Court placed reliance on evidence of O.W.2 a witness examined by the petitioner to hold that the petitioner acquired the knowledge of the passing of the order of attachment by the Court, though as I have noted no specific date has been mentioned on which he acquired that knowledge. I have gone through the statement of O.W.2 who in his evidence stated that before the bailiff came Muhammad Aslam the decree‑holder and Ali Muhammad s/o Allah Ditta had been telling him that the house in dispute had been attached. There is nothing in his evidence that he passed on that information to the present petitioner. Knowledge of O.W.2 even if it is presumed to have been acquired by him regarding attachment of the house did not amount to knowledge of the petitioner. Even otherwise there is nothing in his statement as to on which date Muhammad Aslam and Ali Muhammad told him about the attachment of the house because subsequent to the attachment, warrants regarding schedule of date for the sale of the property were issued about which also proclamation was subsequently made regarding the sale of the property. No reliance could be placed on the evidence of O.W.2 for holding that the petitioner had the knowledge of the earlier order of attachment at the relevant time. Since the petitioner purchased the property on 19‑4‑1977, therefore, by no stretch of imagination it could be assumed that he could have acquired the knowledge of the order of the Court dated 19‑4‑1977. The petitioner appeared as his own witness who categorically stated in his examination‑in‑chief that he did not know about the order of the Court regarding attachment of property. This statement was not questioned in the cross‑examination, According to firmly settled law the said evidence of the petitioner shall be deemed to have been accepted as correct. The order of attachment thus became effective on 19‑5‑1977 when proclamation by beat of drum was made.

6. Learned counsel for the respondents argued that the respondents made application before the Sub‑Registrar on 19‑3‑1977 stating therein that the house in dispute is subject‑matter of execution petition, therefore, no document regarding sale of the said house be registered. Even if it is assumed that the respondents made any such application the same would not advance their case as on the said date admittedly no order was passed by the Court for attachment of the property, therefore, there was no prohibition against the transfer of the property. Even otherwise making of the said application by the respondents would not constitute knowledge of the passing of the order of attachment by the Court of the petitioner.

7. For the foregoing reasons the findings of the Courts below that the petitioner had acquired knowledge of the passing of the order of attachment by the Executing Court are based on misreading and misapplication of law. The Courts below thus committed material irregularity and illegality in rejecting the objection petition of the petitioner. The petitioner having acquired rights of ownership and title in the property before the order passed by the Executing Court regarding the attachment of property became effective, therefore, the property could not have been proceeded against and sold as property of the judgment‑debtor in execution of decree passed against him.

8. This revision petition is accepted. Orders passed by the Courts below dated 27‑3‑1978 and 9‑5‑1979 are hereby set aside. The objection petition of the petitioner is accepted and the attachment and sale of property in dispute is set aside. There will be no order as to costs. H.B.T./N‑22/L Petition accepted.