1980 PLP 15 (SCMR)

MUHAMMAD AKRAM, J.‑This is a petition for special leave from an order dated 24th of February 1979, whereby a learned Judge of the High Court of Sind at Karachi has dismissed the miscellaneous appeal filed by the present petitioners against the respondents herein. The relevant facts necessary for the disposal of this petition are that respondent No. 2 had obtained a money decree against respondent No. 3 firm for recovery of Rs. 41,

801. In execution of the decree the house in dispute situated in Shahdadpur District Sanghar belonging to the Judgment debtors was attached on the 8th of August 1969. On this Lutaf Ali, predecessor of the present petitioners filed his objections under rule 58 of Order XXI of the Code of Civil Procedure against the attachment. His case was and has been that the partners of respondent No. 3 firm had on the 8th of January 1963, already agreed to sell the house to him for Rs. 45,000, received Rs. 20,000 in advance from him and also delivered its possession to him against an agreement to sell the house duly executed in his favour with the stipulation that the balance of the sale price of Rs. 25,000 shall be paid to the vendors at the time of the execution and registration of the sale‑deed as and when called upon by the purchaser to do so. Relying on this agreement it was alleged that the objector was in possession of the house in his own right which was not liable to attachment in execution of the decree against the judgment debtors. But on the 5th of December 1970, the objections against the attachment were dismissed in default as well as on the merits by the Additional District Judge Sanghar. He observed that any relief by way of specific performance of the alleged agreement to sell would be barred by time and that it did not therefore, confer any right in the property in his favour. In the meantime late Lutaf Ali, predecessor of the petitioners also filed a suit (No. 67 of 1970) for a declaration of title to the house and injunction against its attachment on the basis of this agreement. But eventually on the 20th of January 1971 neither the plaintiff nor his learned counsel appeared at the hearing. The learned Civil Judge Shahdadpur relied on the earlier order dated 10th of December 1970 passed by the Additional District Judge Sanghar whereby the plaintiff's application under Order XXI, rule 58 of the Code had been dismissed. In conclusion the learned Civil Judge observed that "since the plaintiff has no right over the suit property he has no right to bring the suit". With these remarks his plaint was rejected under rule 11 of Order VII of the Code: In the meantime the house was put to auction and purchased by respondent No. 1 for Rs. 46,

000. The sale in his favour was confirmed on 28‑4‑1971 and even a sale certificate was also issued in his name by the executing Court. In the meantime late Lutaf Ali filed a Review Application (No. 216 of 1971) in the High Court of Sind against the order dated 28‑4‑1971 of the confirmation of the sale made in favour of the auction‑purchaser, which was however, dismissed in default by the Court on 12‑7‑1971. In due course respondent No. 1, the auction‑purchaser took out the proceedings before the executing Court, for delivery of possession of the house to him. On 20‑9‑1972 the learned District Judge allowed his application. On this late Lutaf Ali objector went up in revision to the High Court against the order. During the pendency of the revision he died and no application was made within time to bring his legal represen tatives on the record. In consequence on the 24th of October 1973 the High Court dismissed his revision as having abated. During the pendency of the revision, Lutaf Ali also filed another suit (No. I of 1972) in the District Court Sanghar for a declaration to set aside the sale certificate issued in favour of the auction‑purchaser and injunction. But that suit was also dismissed for want of prosecution on 3‑1‑1973 of time on the application of the auction‑purchaser a warrant for delivery of possession of the house to him was issued by the executing Court. On this the bailiff reported that some of the legal heirs of Lutaf Ali deceased had offered resistance against it. In spite of this, on 8‑2‑1974 the Court directed that the possession be delivered to him with the aid of the police force. The petitioners then went up in appeal to the High Court against the order. On the 25th of May 1975, the High Court accepted their appeal directing that the executing Court should proceed afresh in accordance with the requirements of rule 97 of Order XXI of the Code after notice to the petitioner. Eventually after the remand on the 17th of July 1976, the objections of the petitioners against the delivery of possession of the house to respondent No. 1 were dismissed by the learned Senior Civil Judge, Shahdadpur. Their Miscellaneous Appeal No. 39 of 1976 was also dismissed by the High Court by the impugned order made on the 24th of February 1979. Hence this petition for special leave against the order. In the High Court it was argued on behalf of the petitioners that as successors of late Lutaf Ali they were entitled to protect their possession of the house in question as their predecessor‑in‑interest was put into its possession in part performance of the aforesaid sale agreement dated 8th of January 1963. It was further argued on their behalf that they were entitled to raise the objections at any time against the attachment, auction and even at the time of the sale certificate issued under Order XXI, rule 96 of the Code. But these contentions were repelled by the High Court. In its opinion the petitioner did not file any suit under Order XXI, rule 63 of the Code after the dismissal of their objections filed under Order XXI rule 58 of the Code against the attachment on the 5th of February 1970. The petitioners could not therefore, reagitate the issue afterwards. Moreover, the two suits brought by late Lutaf Ali afterwards were also dismissed and therefore this issue could not be reopened. On this view of the matter the Court repelled the contention of the petitioners that they were entitled to file their objections in the course of the execution proceedings at the three stages one after the other. In conclusion the High Court held that the objections filed by the objector under Order XXI, rule 58 of the Code were dismissed as far back as on the 5th of December 1970. His revision against the order was also rejected on the 12th of July 1971. His first suit too was dismissed on the 20th of January 1971. In these circumstances the petitioners were not entitled to reopen the issue, particularly after the issuance of the sale certificate in favour of the auction‑purchaser on the 31st of May 1971 which was challenged by the deceased in Suit No. 1 of 1972 which too was dismissed in default on the 3rd of January 1973. We have heard the learned counsel for the petitioners in this petition and also gone through the record. It is alleged in this petition that the agreement to sell the house in favour of late Lutaf All still subsists and his possession under the agreement was fully protected. The contract in his favour was enforceable in law and his remedy was not barred by time. It was admitted that the proceedings taken by late Lutaf Ali either under Order XXI, rule 58 of the Code or in Suit No. 67;1970 or in Suit No. 1/1972 were all misconceived because under the agreement of sale he could not claim title except a right to such for specific performance of the contract in his favour. As ouch, according to the petitioners these proceedings cannot operate as an estoppel or res judicata. In dilating upon these contentions the learned counsel submitted before us that the Courts below have failed to appreciate that the proceedings under Order XXI, rule 58 of the Code, or in Suit No. 67/1970, Review Application No. 216/1971 or Review Application No. 196/1972 or Suit No. 1/1972 were all in respect of the title over the property which late Lutaf Ali had been claiming on the basis of an agreement to sell accompanied by the delivery of possession to him, and the payment of part consideration in part performance of the contract. As such, although, he was not entitled to claim title in him of the property under the agreement in question he had a two‑fold right thereby secured in his favour ; firstly the right to sue for the specific performance of the agreement and secondly, the right to protect his possession by performance under section 53‑A of the Transfer of Property Act. In support of his contention an this behalf the learned counsel relied on the reported case in Gokarakyonda Audinaravudu v. Surapureddi Managamma (A I R 1943 Mad. 706) to the effect 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. We find that this case on which the reliance was placed before us is distinguishable on facts. In the instant case as is evident from the facts narrated above, late Lutaf Ali the predecessor of the petitioners had himself filed the objections against the attachment of the property under Order XXI, rule 58 of the Code. But these were eventually dismissed in default by the Additional District Judge on the 5th of December 1970. He then filed the Suit No. 67/1970 but the plaintiff and his counsel again failed to appear at the hearing in Court on the 20th of January 1971 and his suit was conse quently dismissed in default as well as on the merits by the trial Court. The house was then put to auction and it was purchased through Court by respondent No. I. The sale in his favour was confirmed on the 28th of April 1971 and the sale certificate was also issued in his name under Order XXI, rule 95 of the Code on the 31st of May 1971. The auction purchaser then applied for delivery of the possession of the house to him. On this Lutaf Ali deceased filed his objections against it before the executing Co which were dismissed on the 20th of September 1972. He then filed a Revision Petition (No. 196 of 1972) which was still pending when Lutaf Ali died and his legal representatives were not brought on the record. In the circumstances the revision was dismissed as abated on the 24th of January 1973. In the meanwhile the deceased had also filed the Suit No. 1/1972 in the Court of the District Judge Sanghar for setting aside the sale certificate granted by the executing Court in favour of respondent No. 1 and for a permanent injunction. But this too was dismissed in default on the 3rd of January 1973. In all these proceedings throughout the claim of Lutaf Ali was based on the agreement dated 80 of January 1963 allegedly executed by the owners of the property in his favour, and according to him he was entitled to retain the possession of the house delivered to him under this agreement against the decree‑holder as well as the auction‑purchaser. But he failed throughout to vindicate his claim in the proceedings brought by him which were dismissed one after the other. Thereby the Court successively rejected his claim to retain the possession of the house under the agreement against the decree‑holder as well as the auction‑purchaser. According to rule 58 of Order XXI of the Code where any claim is preferred to or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit. Late Lutaf Ali predecessor of the present petitioners did file his objections against the attachment of the property which were however, dismissed on the 5th December 1973. The revision against the order was also rejected for non‑. prosecution on the 12th of July 1971. He did not file any suit precisely in accordance with the provisions contained in rule 63 of Order 21 of the Code. However, he filed his suit No. 67/1970 for declaration of title and injunction for the protection of the possession of the property under the agreement. But the plaint in the suit was rejected by the trial Court on the 20th of January 1971 and in the meantime the property was put to auction and purchased by respondent No. 1 for valuable consideration. The sale was eventually confirmed in his favour and the sale certificate was also issued in his name. Thereafter, the suit No. 1 of 1972 filed by the deceased to set aside the sale certificate and the issuance of the injunction was also dismissed on the 3rd of January 1973. Throughout these proceedings late Lutaf Ali‑I predecessor of the petitioners had failed to successfully vindicate his claim to the effect that he was entitled to retain the possession of the house under the agreement and as such his alleged right in this behalf was never recognised by the Court seized of the matter at all the earlier stages of the litigation. In this view of the matter the pronouncement in Gokarakonda Audinararudu v. Surapureddi Mangamma on which reliance has been placed was rightly distinguished by the High Court. The order thus passed by the High Court is unexceptionable. We therefore, see no force in this petition which is rejected. Petition rejected.