2002 PLP 822 (MLD)

The claimant has taken the ground for release/discharge of the property on various grounds, inter alia, that the property was purchased after, due verification and issuance of non‑encumbrance Certificate in respect of the property. She is bona fide purchaser for valuable consideration and is in physical possession since 28‑3‑1998. The petitioner by misrepresenting the true fact on showing said ‑property belonging to the respondent No.1 has obtained ad‑inter in attachment order on 23‑10‑2000 that in earlier J.M. No.47 of 1994, wherein the attachment of the said house‑also sought by older, dated 21‑4‑1994. The said property was not attached though the order, dated 21‑4‑1994 was later on confirmed by order, dated 9‑5‑1997. The petitioner have resisted the application through counter affidavit. Rejoinder was also filed. The same needs not to be referred as learned counsel for the claimant, Mr. A. Iqbal Qadri has 'raised only legal points during his submissions on admitted facts. The main contention of Mr. A. Iqbal Qadri, on behalf of the claimant/objector was that the property was not attached in law, as such, there was no restraint on the respondents or anybody from dealing with the property in any manner. Elaborating his contention, it was urged by him that in terms of subsection (10) of section 39 of Industrial Development Bank of Pakistan. Ordinance, (hereinafter referred to as the Ordinance), the' attachment and sale of the property is to be carried into effect as far as may be in the manner provided in the Code of Civil Procedure and for the attachment or sale of property in execution of a decree as if the Bank were the decree holder. The provision of subsection (10) of section 39, reads as follows:‑‑ (10) An order under this section for the attachment or sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908 (Act V of 1908), for the attachment or sale of property in execution of a decree as if the Bank were the decree holder.". Mr. A. Iqbal Qadri referred the provision of Rule 54 of Order 21, which is in two parts, sub‑rule (1) and sub‑rule (2) and contended that for attachment of immovable property, there shall be an order prohibiting the judgment debtor from transferring or charging the property in any way and all the persons from taking any benefit from such transfer or charge as contained in sub‑rule (1) and to make the order effective, the order was to be proclaimed at some place or an adjacent to such property by beat of drum or other customary mode, and a copy of the order required to be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court House in terms of sub‑rule (2) of rule

54. In absence of compliance of sub‑rule (2), there would be no attachment in law and to support his contentions, he referred the view expressed in (1) Gopal Chandra v. Ramesh Chandra and another (PLD 1961 Dacca 492), (2) State Life Insurance Corporation of Pakistan v. Dr. A.M.J. Shirazee and 9 others (PLD 1983 Karachi 112) and (3) Mst. Habiba Kassim and another v. Messrs Habib Bank Limited (1987 CLC 1898). Mr. Salman Hamid, learned counsel for the petitioner controverting the points raised, contended that the provisions of rule 54 of Order 21 are not mandatory provision, as such its non‑compliance would not effect the attachment and any sale after the attachment of the property would be void in terms of section 64 of the Code of Civil Procedure. His contention was that the order of attachment was passed on 24‑4‑1994, which was made absolute on 9‑5‑1997 and remained effective, and claimant purchased the property on 28‑3‑1998 during the attachment of the property, as such the sale in favour of the objector is void and. the objector cannot ask for the release of the property.. To support is contention, he referred the view taken in (1) Ghulam Abbas v. Zohra Bibi and another (PLD 1972 SC 337) and (2) Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation and another (1992 CLC 1323). The intent and object of the attachment was highlighted by Justice Mahmood in Ganga Din and others v. Khusha4 (7 ILR Allahabad 702). It is to give notice to the judgment‑debtor not to alienate his property and to the public not to accept any alienation from him. This view was affirmed by Full Bench in Gauri v. Ude and others (AIR 1942 Lahore 153). Reverting to the cases cited by Mr. A. Iqbal Qadri, (1) in Gopal Chandra's case, an order of attachment before judgment in terms of Order 38, rule 5 of the Code of Civil Procedure was obtained. After the decree, it was put into an execution by an execution application with mode by sale of attached property. The plea raised by the' judgment debtor was that execution application for sale cannot proceed as there was no legal and valid attachment of the property sought to be sold. The Executing Court allowed the application. On appeal, subordinate Judge held that there was no attachment by prohibitory order in Form No.24, Appendix E, as required by Order 21, rule 54 of the Code of Civil Procedure, and therefore, the attachment before judgment was not only an irregularity, but it was void, and as such, the appellant was not entitled to proceed with the present execution case on the basis of the attachment before judgment without proper attachment of the property in question. The appeal before the High Court also failed with observation that the decree holder cannot proceed to sell the property in execution of the money decree without attaching the property under Order, 21, rule 54, of the Code of Civil Procedure, and if he wants to attach the property the legitimate claimants may come and put forward their claims alongwith the judgment‑debtor or independently of the judgment‑debtor. Therefore, it is just ant reasonable not to allow the decree-holder to proceed with the execution of the decree by selling the property without attaching. (2) In State Life Insurance Corporation of Pakistan's case, the object of rule 54 providing attachment was highlighted as under:‑‑ "The object of attachment is to give notice not only to the judgment‑debtor but also to public not to accept any alienation from him. The attachment prohibits the judgment‑debtor from selling the property. Such attachment is effective only after an order of attachment is served on him. Such attachments are made to protect the interest of the decreeholder and judgment‑debtor both. Any alienation made after the order of attachment but prior to it having been proclaimed and effected, is valid." (3) In Mst. Habiba Kassim's ‑case, the difference mode of attachment of the movable and immovable properties was distinguished with reference to the provisions of Order 21, rule 54. an immovable property can be attached by an order prohibiting the judgment‑debtor from transferring or charging the property in any way that shall be proclaimed by beat of drum on or adjacent to such property and a copy shall be affixed on conspicuous part of the property and on conspicuous part of the Court house. The dictum of above cases is that for a valid attachment, there, must be an order and to make such attachment effective by proclamation by beat of drum through customary mode and affixation of the order on the conspicuous part of the property and on Notice Board of the Court, where property is situated.; In. A.T.K.P.L.M. Muthiah Chetti v. Palaniappa Chetti and others (AIR 1928 P.C. 139); Privy Council ruled that no property can be declared to ‑be attached unless firstly order for attachment has been issued; and secondly, in execution of that order the other things prescribed by the rules in the Code have been done. In Ghulam Abbas's case, referred by the petitioner's counsel, similar contention was raised that non‑publication of sale proclamation by beat of drum in the locality as prescribed by sub‑rule (2) of rule 54 of Order 21 was non‑compliance with the mandatory provision of law, which vitiate the entire proceedings. The Supreme Court repelled the plea by observing that it is not doubt true that the sale or proclamation was not published at some place on, or adjacent to the property by beat of drum, but due publicity was give" to it, as it is evident from the reports of the bailiff and the Nazir both by publication in newspapers as also by the distribution of hand bills at the site and at other important places in the city. The affixations at other places, as required by the rule, were, of course, duty complied with and it was held that the provision of Order 21, rule 54, of the Code are not mandatory and substantial compliance was found to be enough. In Syed Asad Ali Sadiq's case, referred by Mr. Salman Hamid, the similar objection was raised that unless all the formalities required by rule 54 of Order 21, C.P.C. are complied with there can be no valid attachment under the law, the contention was repelled with following observations:‑‑ "No doubt, there is nothing in office copy of the said notice to indicate that a proclamation was also made by beating of drum and the Bench was of the view merely because there was no beating of, drum by the bailiff, the 'same would not render the attachment invalid when the other requirements of rule 54(2) viz., service of the order on the judgment‑debtor and pasting of the notice of the conspicuous part of the property as well as the Court's Notice Board has been adequately complied with " I have examined the proceedings of J.M. No.47 of 1994 with reference to the objection taken by the learned counsel for the objectors. No doubt there is nothing in the office copy of the notice and bailiff's report to indicate that a proclamation was also made by beating of drum but other requirement of rule 54, viz.,' service of order on the Judgment -debtor and pasting of the attachment proclamation on 'the conspicuous part of the property as well as the Court Notice Board were made. It is noticed that the attachment in Form 24, Appendix E of the Code was sent to the District Judge, Hyderabad on 26‑5‑1994 for an affixation of Court Notice Board and on the properties mentioned in the schedule and for service on the respondents. The bailiff's report dated 7‑8‑1994 speaks about an affixation of the attachment at the Bungalow claimed by the objector/claimant and the office copy was received by the office of this Court with endorsement of 1st 'Senior Civil Judge, Hyderabad dated 9‑8‑1994. Following the view of Supreme Court in Ghulam Abbas (supra) and Division Bench view m Syed Ashad Ali Sadiq, I am of the view that substantial compliance of rule 54(2), by proclamation of attachment in, the instant, matter, by its pasting on the conspicuous part of the property as well‑as Court Notice board, has been adequately complied with. The B object behind that rule 54(2) is well‑settled, it is a notice to judgment debtor not to deal with the property and simultaneously to the public: not to accept any alienation of the property by the judgment‑debtor. Once rule 54(2), has been substantially complied with, the object of same, is adequately served, the attachment cannot be held to be invalid merely because some insignificant thing was left to be done. I am, therefore, unable to accept the contention of Mr. A. Iqbal Qadri that there was no valid attachment in absence of strict compliance of rule 54(2) of the Code. It is contended by Mr. Salman Hamid, learned counsel for the petitioner that at the date of sale by respondents, S.M. Shahab‑ul‑Islam in favour of objector through sale‑deed, dated 28‑3‑1998, the attachment order was still subsisting, which has not been disputed by Mr. A. Iqbal Qadri, learned counsel fear the objector, se that the alienation of the property by sale‑deed dated 28‑3‑1998 would be void against any interest claimed under attachment. The cases (1) Gango Singh v. Jangi Lal (AIR 1922 Allahabad 413) and (2) Shiv Lal v. Tani Ram (AIR 1938 Bombay 441) arc the authorities for that proposition. Some what similar view was taken by the Division Bench of this Court in Kuwait Flour Mills Co v. m.v. Kashmir (1990 MLD 2 196), that such transfer would be void to the extent it comes in conflict with the attachment. In the light of discussions referred to above, the application has no merits, the same is dismissed, however, with no order as to costs. H.B.T./I‑48/K Application dismissed.