P L D 2010 Peshawar 23 (PLP)

MIFTAH UD DIN KHAN, J.

The appellants have filed this appeal against the judgment and order dated 21-6-2007 of the learned Additional District Judge II, Haripur whereby the objection petition of Sabir Sultan appellant in respect of cancellation of auction of property of Raja Firdous judgment debtor was dismissed in the execution petition of respondent Shamim Akhtar.

2. The brief facts of the case are that one Mst. Shamim Akhtar obtained a decree for recovery of Rs.5,00,000 against the judgment debtor Raja Firdous on 6-6-2003 in civil suit of summary nature under Order XXXVII, Rule 2, C.P.C. Decree-holder Mst. Shamim Akhtar applied for execution during the course of which she applied for attachment and auction of property of Raja Firdous judgment debtor. The appellant Sabir Sultan through an objection petition applied for cancellation of auction proceedings on the ground that property in the name of Raja Firdous judgment debtor has already been decreed in his favour therefore, Raja Firdous is left with no right or interest in the said property therefore the same cannot be put to auction in execution proceedings. This objection petition was contested by the decree holder and the learned executing Court after hearing learned counsel for the parties dismissed the objection petition of present appellant vide order dated 21-6-2007. Aggrieved from the same, the appellants have filed the present appeal.

3. Mr. Bashir Ahmed Khan, Advocate, the learned counsel for appellants contended that the property in the name of Raja Firdous was already decreed in favour of petitioners and Raja Firdous was left with no right or interest in the auctioned property therefore, the learned executing Court was not justified to auction' the property owned by the appellants/objectors. He further submitted that learned executing Court has illegally rejected the objection petition of the appellants therefore, the present appeal be accepted and the auction proceedings of the aforesaid property be cancelled.

4. Mr. Muhammad Ayub Khan, Advocate, the learned counsel for respondents/decree-holders contended that Raja Firdous was not party to the civil suit therefore, the decree in favour of appellant is not binding on him, hence, the learned executing Court has rightly turned down the objection petition of present appellants.

5. Perusal of evidence available on record reveals that in civil suit No.365/1 of 1998, instituted by the appellants, revenue entries in the name of one Sadaqat Hussain on of Sadiq Hussain were challenged in respect of suit property. During the pendency of suit of present appellants, the property in dispute was transferred by Sadaqat Hussain in favour of Syed Sajjad Ali Shah vide Mutation No.1627 attested on 11-10-1999. The said Syed Sajjad Ali Shah subsequently transferred an area measuring 2 kanals in favour of Raja Firdous judgment debtor vide Mutation No.1692 attested on 26-7-2001. All these mutations were attested during the pendency of suit of appellants which was ultimately decreed on 3-7-2004 in favour of present appellants. As Sadaqat Hussian was party to the suit of the present appellant, therefore, subsequent transfer by aforesaid Sadqqat Hussian in favour of Syed Sajjad Ali Shah and thereafter in the name of judgment debtor Rana Firdous was hit by the principle of lis pendens, hence, would create no right in their favour. Admittedly, a decree of civil Court was passed in favour of appellant on 3-7-2004 in respect of suit property against Sadaqat Hussain therefore, he was left with no right in the suit property to transfer the same to Syed Sajjad Ali Shah and Raja Firdous. As a transferor Sadaqat Hussian cannot transfer better title than he himself possesses, hence, Raja Firdous judgment debtor had stepped into the shoes of Sadaqat Hussain, therefore, has got no right in respect of property transferred in his favour as the same has been transferred during pendency of suit without leave and permission of the Court as required under section 52 of the Transfer of Property Act. This transfer being violative of law and void ab initio would not create any right in favour of Raja Firdous, particularly when ultimately decree of the aforesaid property has been passed by civil Court on 3-7-2004 in favour of appellants. Thus, the learned executing Court was not justified to conduct auction proceedings in respect of property decreed in favour of present appellants by the civil Court, therefore, I accept the present appeal, set aside the impugned order and by accepting the objection petition of appellants, cancel the auction proceedings of two kanals of land shown in the name of judgment debtor Raja Firdous. H.B.T./73/P Appeal accepted.