1980 PLP 674 (CLC)

Date of hearing : 24th February 1979. This miscellaneous appeal is directed against the order dated 17-7-1976 passed by the learned Senior Civil Judge, Shahdadpur. The facts leading to the filing of the above appeal are that the respondent No. 2 filed a suit in the erstwhile High Court of West Pakistan at Karachi in 1962 against the respon dent No. 3 for the recovery of a sum of Rs. 41,

801. The above suit was decreed on 9-2-1967 by the Court. Upon an application of the decree-holder the decree was transferred to the Court of the Senior Civil Judge, Shahadpur, for execution. T1te respondent No. 2 applied for the execution of the decree in which he sought the attachment of the house in dispute belonging to the partners of respondent No. 3 hereinafter referred to as `the house'. The above house was attached on 8-8-1969.

2. It appears-that against the above attachment order the appellant's predecessor in interest late Lutuf Ali filed objections under Order XXI, rule 58, C. P. C., on the ground that he had entered into a purchase agreement dated 8-1-1963 with the respondent No. 3 and had paid Rs. 20,000 as a part payment towards the sale price of Rs. 45,000 on the day of the execution of the sale agreement. It was also asserted that in part performance of the above sale agreement the deceased was put into possession by the partners of the respondent No.

3. However, the above objections were dismissed by the executing Court on 5-12-1970. Being aggrieved by the above order, the deceased filed a revision bearing No: 216/71 in the erstwhile High Court of West Pakistan, which was dismissed for non-prosecution on 12-7-1971. After that the deceased filed a suit, namely, Suit No. 67170 in the Court of Civil Judge, Sbahdadpur, for declaration and injunction, the plaint of which was rejected under Order VII, rule 11, C. P. C. on 21-1-1971.

3. In the meantime the house was put to auction and it was purchased by the respondent No.

1. After that the sale in favour of the respondent No. 1 was confirmed on 28-4-1971 and thereafter a sale certificate under Order XXI, rule 95, was issued on 31-5-1971 in favour of the respondent No. 1 After that the respondent No. 1 filed an application under Order XXI, rule 95, C. P. C. for the possession of the house on 11-6-1971. To which the deceased filed objections on 13-9-1971, which were dismissed by an order dated 20-9-1972. Being aggrieved by the above order the deceased filed a revision petition in this Court, namely Revision No. 196/72. It appears that while the above petition was pending Lutuf Ali died and his legal heirs were not brought on record, consequently the above revision was dismissed as abated on 24-1-1973. It may also be observed that while the above second revision was pending in this Court the deceased had also filed a suit, namely, 1972, in the Court of District Judge, Sarghar for setting aside the sale certificate granted by the executing Court and for a permanent injunction. The above suit was dismissed in default on 3-1-1973.

4. After that a writ of possession was issued by the executing Court on 8-2=1974 which was resisted by the appellants, whereupon the respondent No. 1 applied for the police aid on or about 25-0-1974. While the above application for the police aid was pending the appellants approached this Court and filed Miscellaneous . Appeal No. 36/74, which was allowed on 26-5-1975 on the ground that' no notice was issued to the appellants before issuing of the writ of possession and the case was remanded to the lower Court. After the above remand order, the executing Court reheard the matter and passed the impugned order, whereby the objections of the present appellants were dismissed. The appellants being aggrieved by the above order have filed the present appeal.

5. Mr. 'Maroof Ali Khan, learned counsel for the appellants, has contended that as the appellants being the successors of the deceased purchaser, are entitled to protect their possession of the house as their predecessor in interest was put into possession of the house in part perform ance of the aforesaid sale agreement dated 8-1-1963. It was further urged by the learned counsel for the appellants that the appellants were entitled to raise objections at the following three stages : - (i) at the time when the property was attached, (ii) at the time when the property was put to auction, and (iii) at the time when the Court issued certificate under Order XXI, rule 95, C. P. C. On the other hand, Mr. Muhammad Ashraf Umrani learned counsel for respondents 1- and 2 has contended that the appellants could raise objections under Order XXI, rule 58, C. P. C. once only and that after the dismissal of their objections as far back as on 5-12-1970 they could file a suit under Order XX1, rule 63, C. P. C. within one year. 1, was further submitted that the deceased in fact filed two suits, which were dismissed as aforesaid in addition to two revision Petitions.

6. The question which requires consideration is, as to whether the appellants have any independent right to hold on possession of the house apart from the right which they are claiming under the sale agreement dated 8-1-1963. Mr. Maroof Ali Khan, in support of his contention that the appellants have the right to hold on the possession of the house and that they have also the right to enforce the above sale agreement against the auction-purchaser, he being the successor of tile original owner relied upon the case of Gokarakenda Audinaroyudu v. Suropureddi Mangamma (A I R 1943 Mad. 706). In the above case it was held by a learned Single Judge of the Madras High Court that a person in possession of an attached property in pursuance of a sale agreement is entitled to raise objections. to the attachment of the property on the basis of section 53-A of the Transfer of Property Act. The above case is distinguishable from the instant case inasmuch as that not only the house was attached but it was put to auction and a sale certificate was issued. Mr. Maroof Ali Khan was unable to cite any ruling in support of his contention that a purchaser can resist a writ of -possession on the ground of a sale agreement which has not been accepted by the executing Court as a document of transferring any right or interest in favour of the purchaser while hearing objections under Order XXI, rule 58, C. P. C.

7. Mr. Muhammad Ashraf Umrani learned counsel for the respondents Nos. 1 and 2 has contended thus as the appellants did not file any suit under Order XXI, rule 63, C. P. C. after the dismissal of their objections under Order XXI, rule 58, C. P. C. on 5-2-1970, the appellant cannot re-agitate the issue. It was further urged that if we treat two suits filed by the deceased under Order XXI, rule 63, C. P. C. the same were dismissed, and, therefore, the aforesaid issue cannot be re-opened. It appears that the above conten tions have some force. In my opinion the appellant's contention that they were entitled 'o file objections at three stages referred to hereinabove in para. 5 does not seem to be correct. The appellant's predecessor in interest i.e. the deceased was claiming his rights under the aforesaid sale agreement dated 8-1-1963 which was the subject-matter of the aforesaid objections filed in 1970 under Order XXI, rule 58, C.P.C., which were dismissed as far as back is on 5-12-1970. The Revision 216/71 filed against the aforesaid dismissal was also dismissed on 12-7-1971. The first suit filed by the deceased was dismissed on 20-1-1971 referred to hereinabove in para.

2. In my opinion the appellants are not entitled to re-open the above issue, particularly after the issuing of a certificate dated 31-5-1971 under Order XXI, rule 95, C. P. C. which was challenged by the deceased in Suit No. -1/72, which was dismissed on 3-1-1973 in default referred to hereinabove in para.

4. In view of the above discussion I do not find any merit in the above appeal, and, therefore, the same is dismissed but there will be no order as to costs. However, the appellants are granted two months time to vacate the house from the date of this order. Appeal dismissed.