2010 PLP 102 (CLC)

PERVAIZ INAYAT MALIK, J.

Through this revision the petitioner assails the order dated 24-11-2006 passed by the learned Additional Sessions Judge, Lodhran whereby he dismissed the objection petition filed by the petitioner.

2. Briefly stated facts as those emerge out of, this petition are that the respondent No.1 Haji Shameem Uddin filed a suit under Order XXXVII, rules 1 and 2, C.P.C. for the recovery of Rs.20,00,000 (twenty lac) against respondent No.2 Abdul Qadeer son of Muhammad Yousif (real brother of the petitioner), which was decreed in favour of respondent No.1/plaintiff and against respondent No.1/defendant vide judgment and decree dated 4-5-2006. The execution petition for the satisfaction of above noted decree dated 4-5-2006, was filed before the learned Executing Court, who vide order dated 23-6-2006 directed attachment of movable and immovable property of judgment-debtor/ respondent No.2, in compliance whereof bailiff of the Court attached certain articles details whereof is available on the record. The petitioner filed an objection petition before the learned Executing Court on the grounds that certain articles attached for satisfaction of the decree, did not belong to the judgment-debtor rather were property of the petitioner, therefore, under the law could not be attached, which was contested by the decree-holder and finally vide the impugned order dated 24-11-2006, the learned Additional District Judge Lodhran/Executing Court dismissed the said petition which order is being assailed through this petition.

3. This petition is at motion stage. It is inter alia contended that the articles attached in satisfaction of the decree were not the property of the judgment-debtor his real. brother and that those have illegally been attached by the bailiff and that the learned trial Court proceeded to pass the impugned order without holding any proper inquiry.

4. The learned counsel for the petitioner in support of his contentions has relied upon Mst. Surriya Begum v. Muslim Commercial Bank Limited and 4 others PLD 1940 Lah. 4, Shaukat Ali and others v: Bank Tribunal for Karachi and Sakhar and others 2001 MLD 1828, Muhammad Rafi and others v. Muhammad Shafique, Civil Judge Hasilpur and others 1993 CLC 1903. To canvass that before rejection of objection petition, appropriate inquiry has to be held.

5. Arguments heard. Record perused.

6. The perusal of impugned order reveals that the learned Executing Court has non-suited the petitioner on the following grounds:-- (i) No proof of ownership of the petitioner qua articles attached in execution has been placed on record. (ii) The articles were attached in the presence of Abdul Ghaffar petitioner and no objection of whatsoever nature was raised by him. (iii) The possibility of collusiveness of filing the objection petition with the judgment-debtor cannot be ruled out.

7. The petitioner in support of his claim has appended with this petition three alleged original receipts allegedly issued by Batala Zari Showroom, signed by one Rafaqat. These alleged receipts also falsify the claim of the petitioner for following reasons:

(a) One receipt dated 8-10-2003 stated to have been issued in the name of petitioner Abdul Ghaffar is regarding purchase of two articles worth Rs.30,000 only and finds cutting on the year of issuance thereof. It seems that date of this receipt has been changed. (b) Two other receipts on the face of it appears to be afterthought and even prepared after the rejection of objection petition. I, therefore, find weight in the observations of the learned Executing Court, to the effect that no solid proof has been placed on record, for the simple reason that had the petitioner been in possession of these receipts, he could very comfortably place on the record of the learned Executing Court and after obtaining certified copy therefrom could append the same with this petition. I also find myself in agreement with the learned lower Court that possibility of filing ejectment petition in connivance with the judgment-debtor cannot be ruled out.

8. Now adverting to the judgments referred to by the learned counsel for the petitioner PLD 1970 Lah. 2004. In this case the objector had placed on record registered sale-deed in support of his claim that he was bona fide purchaser with consideration of the attached property and that without framing any issues, the objection petition filed by him was dismissed whereupon this Court directed the learned Executing Court, by observing that sufficient prima facie proof was available on record, therefore, decide the objection petition after framing issue and by giving fair opportunity to the parties to lead evidence in support of their respective claim 2001 MLD 1828, in this case too the objector based his claim on the strength of a sale-deed duly registered with the Sub Registrar and it was directed that in view of such prima facie proof the objection petition has to be decided after proper investigation. In the third referred case by the learned counsel for the petitioner 1993 CLC 1903 Muhammad Rafi v. Civil Judge, Hasilpur, the petitioner had approached this Court directly without filing any objection petition before the learned Executing Court whereupon this Court held that an. adequate and efficacious remedy of filing of objection petition before the learned Executing Court was available to that petitioner, therefore, Constitutional petition was not competent. The case-law cited at Bar by the learned counsel for the petitioner is-of no help to him. For the simple reason that in the above noted cases registered sale-deed in support of claim of ownership of the objector was produced before the learned trial Court and this Court rightly held that in presence of such a prima facie proof the objection petition could not be dismissed summarily without giving any opportunity to the objector to produce evidence in support of his contention. The facts and circumstances of the present case are altogether different and the judgments cited at Bar are not applicable in the peculiar facts and circumstances of this case. On the contrary in case in hand no prima facie proof of ownership was even placed on record of the learned Executing Court, which is evident from the fact that the original so-called receipts have been placed on the record for the first time before this Court, genuineness whereof on the face of these receipts is doubtful. I find, no illegality or misreading/non-reading of the record, attributable to the learned Executing Court in passing the impugned order.

9. It may be observed hereunder the law in every case the learned Executing Court is not bound to hold regular inquiry by framing issues and providing opportunities to the parties to produce evidence rather Court is vested with the power to reject objection petition summarily in absence of prima facie proof and also where the collusiveness is found. In between the applicant and judgment-debtor. In the case in hand the learned Executing Court rightly found collusiveness of the petitioner with judgment-debtor, which is even floating on the surface of the record. I find the impugned order as perfectly legal thus the same is maintained. I, therefore, while upholding the impugned order and finding no merits in this petition proceed to dismiss the same in limine accordingly. M.H./ A-128/L Petition dismissed.