P L D 1994 Peshawar 31 (PLP)

This is a vendee's revision petition arising out of a pre‑emption suit and its fate hinges on the determination of the question whether a voluntary sale made by a judgment‑debtor in execution of a decree for money which is not in conformity with the procedure laid down in the Code of Civil Procedure is exempt from pre‑emption under sub‑clause (ii) of clause (d) of section 2 of the N: W.F.P. Pre‑emption Act, 1987.

2. The facts of the case are somewhat variegated. A suit in forma pauperis was filed on 23‑6‑1990 by the petitioner's husband Shah Wazir against one Muhammad Sadiq Shirazee for recovery of a sum of rupees four lacs. It was alleged in the plaint that the plaintiff had sold his entire property and entrusted the sale proceeds amounting to rupees four lacs to the defendant for investment in a profitable business on an explicit undertaking that the amount shall be returned on demand but the defendant had failed to keep his word. The defendant appeared in the Court on the first hearing but did not turn up on the date fixed for riling of the written statement. Resultantly, an ex parte decree was passed in favour of the plaintiff namely the petitioner's husband on 25‑7‑1990 with a direction that the deficiency of the court‑fees be made up within a period of two months. The decree‑holder after doing the needful filed an execution petition on 13‑9‑1990 and during the course of proceedings the judgment‑debtor surfaced again and pursuant to some kind of compromise transferred his landed property measuring 22 Kanals 10 Marlas in lieu of the decretal amount in favour of the petitioner Mst. Sabir Jana by means of sale Mutation No.14509 attested on 15‑12‑1990. The execution petition was disposed of on 12‑2‑1991 as fully satisfied. However, on 27‑2‑1991 one Haji Ayub Khan, respondent herein, filed a suit to pre‑empt that transaction on payment of rupees 78,750 as the pre‑emption amount. The suit was resisted by the petitioner on the ground inter alia that the transaction being a sale in execution of a money decree was not pre-emptible.

3. The learned trial court held the trial on as many as eight issues and ultimately in coming to the conclusion that the transaction was not pre-emptible dismissed the suit. The pre-emptor took the matter before the learned District Judge, Bannu who accepted his appeal, reversed the findings on the relevant issue and remanded the case to the learned trial court for decision on merits and hence this revision petition by the vendee.

4. Criticising the view taken by the learned appellate Court that only that sale in execution of a decree for money is not pre‑emptible which takes place by operation of law the learned counsel for the petitioner contended that in the absence of a specific provision in this context the scope of sub‑clause (ii) of clause (d) of section 2 of the N: W.F.P. Pre‑emption Act, 1987 was wide enough to cover any sale made in execution of a decree for money.

5. The learned counsel for the respondent on the other hand defended the impugned judgment by contending that only that sale in execution of a decree for money is exempt from pre‑emption which is compulsory and is made in accordance with the procedure laid down in the Code of Civil Procedure. Reliance was placed on the following observations made in Than Singh and others v. Lakhpat Singh and others AIR 1948 All. 265:‑‑ "The essence of a sale in the execution of a decree is that the will or volition of the judgment‑debtor does not enter into it. It is made in the exercise of statutory powers and its object is to satisfy a decree."

6. As the question for determination relates to section 2(d)(ii) of the N: W.F.P. Pre‑emption Act, 1987 it will be appropriate to reproduce it in extenso. It reads as under:‑‑ "(d) sale means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of Hiba‑bit‑lwaz or Hiba bit‑Shart al‑lwaz but does not include‑‑ (ii) a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other Court or a Revenue Officer or any local authority."

7. The contention raised by the learned counsel for the petitioner is not on surer ground as it not only overlooks the pronounced divide between a voluntary sale and a compulsory sale in execution of a decree for money but also ignores the rationale of exempting a sale in execution of a decree for money from pre‑emption. A voluntary sale flows from the act of parties and essentially involves the will of the judgment‑debtor, as observed in the authority cited by the learned counsel for the respondent, whereas, a compulsory sale or a sale by operation of law is made in exercise of statutory powers. A compulsory sale is in fact a Court sale which is invariably made in accordance with the procedure prescribed by the Code of Civil Procedure. The essentials of such a sale include attachment of the property of the judgment debtor, appointment of an auctioneer, issuance of a proclamation, public auction and grant of sale certificate to the purchaser. None of these elements is present in the sale in question, therefore, there is no escape from the conclusion that it is a voluntary sale pure and simple and not a Court sale in execution of a decree for money. It was undoubtedly made in favour of the wife of the decree‑holder with a view to give an impression that a third person was involved in the matter like a Court sale. The decree was also satisfied ultimately but mere acquiescence of the decree‑holder in this respect is not enough to transform it into a Court sale. The facts forming the background of the transaction in question go a long way to suggest that a highly dextrous methodology and a sophisticated technique was employed to fend‑off pre emption, which is no more a predatory right. Recognising such a transaction as a sale in execution of a decree for money would indeed amount to putting premium on artful transactions.

8. The rationale of making a sale in execution of a decree for recovery of money unpre‑emptible is amply highlighted in Nur Ahmad and others v. Muhammad Ibrahim and another PLD 1953 Lahore

470. It is in these terms:‑‑ "The grounds for exempting Court sales from the operation of the pre emptive rights as they appear from the abovementioned cases may be thus summarized:‑‑ (a) There is no act of party or contract to which alone the right can attach. The so‑called sale is really an exercise of the power that exists in a Court to seize the property of the judgment‑debtor and to transfer it to satisfy an order or decree. (b) There is an opportunity in such sales to bid at the auction. (c) The object of such sales would be defeated if they are hampered by pre‑emption. (d) In such sale pre‑emption has been separately provided by statute and where not provided the provision being by presumption exhaustive right‑of‑pre‑emption is negatived." In the face of the above underlying principles the exemption envisaged by section 2(d)(ii) of the N. W.F.P. Pre‑emption Act, 1987 cannot be extended to cover a sale made by the judgment‑debtor of his own free will and accord.

9. The answer to the question formulated at the outset is that only a Court sale made in accordance with the procedure laid down in the Code of Civil Procedure is exempt from pre‑emption under sub‑clause (ii) of clause (d) of section 2 of the N: W.F.P. Pre‑emption Ad, 1987 and not a voluntary sale made by the judgment‑debtor.

10. For the foregoing reasons this revision petition is dismissed with no order as to costs. A.A./1503/P Revision dismissed.