2004 PLP 982 (CLD)

‑‑‑‑Ss. 7 & 19(7)‑‑‑Civil Procedure Code (V of 1908), O.XXI, Rr.58 & 62‑‑‑Execution of decree‑‑‑Sale of mortgaged property ‑ under auction‑‑‑No description as to location o f property was given in the proclamation of auction‑‑‑Appellants in the objection petition had claimed ownership of the property and described the same as an undivided one of which judgment‑debtor could not have been owner of a specific portion until and unless it was partitioned‑‑‑Questions raised by the parties required evidence to come to a correct finding‑‑‑Held, despite the absence of description of the property in the proclamation, no inquiry for the purposes of finding out the exact property that was subject- matter of the mortgage and whether that was put to auction, was undertaken by the executing Court and the objection of the appellant was dismissed in a summary manner which was unwarranted‑‑‑Impugned order was set aside with direction to the Executing Court to determine factual controversy based on facts coming on record. Khizar Abbas Khan for Appellants. Mushtaq Ahmad Khan for Respondent No.

1. Mukhtar Abbas for Auction‑Purchaser. The respondent‑Bank brought a suit for recovery against Muhammad Zakaullah Khan respondent No.2 which was decreed on 31‑10‑2000 to the tune of Rs.2,54,

730. In execution proceedings, for the satisfaction of the decree, some mortgaged property measuring 13 Marlas in Khata No.29/30 situated in Mauza Chokan, Tehsil and District Jhang, was attached and the same was put to auction. In the proclamation of auction there is no description of the property as to where it is located. There is neither the boundary nor the specified dimensions of 13 Marlas of the area. However, the property has been put to auction by the Court Auctioneer and the has been purchased by respondent No.3 who applied for the confirmation of the sale when the respondents filed objection claiming that the property, which has been put to auction, in fact, is owned by them and is situated in Khata No. 12 rather Khata No.29/30. Moreover it is their case that this is an undivided Khata and judgment‑debtor, at the most, would be the owner of 13 Marlas of land thereof. Until and unless the Khata was partitioned and the judgment debtor became owner of the specific part thereof the sale of the specific portion could not be made. Further it is argued that, at the most, if the mortgage was pertaining to the 13 Marlas of land out of Khata No.29/30, only the share could have been sold. It is argued that there is no description given in the proclamation and, therefore, the sale, of an undivided property is untenable in the eye of law.

2. The argument of learned counsel for the respondent No.3 is that in the mortgage deed the boundary of the mortgaged property is given and the submission of learned counsel for the respondent is that it is the same property which has been actually mortgaged and is in possession of the judgment‑debtor.

3. We have heard learned counsel for the parties. All the questions raised on behalf of both sides needed evidence for the purposes of finding out as to what exact property was subject- matter of the mortgage and which property has been ordered to be put to auction, particularly, for the reason that there is no description of the said property given in the proclamation. This inquiry has not been undertaken by the learned executing Court arid the objection of the appellant has been dismissed in a summary manner which is unwarranted. Resultantly, we set aside the impugned order with the direction to the executing Court to determine the factual controversy, inter alia, as highlighted above and to pass an order on the basis of the facts coming on record. M.A.W./M‑2162/L Order accordingly.