1986 PLP 1697 (CLC)

This order will dispose of four writ petitions, registered as Writ Petitions Nos. 3653, 3654, 3590 and 3750, all of 1985. These are being taken together as common question of law arise in them.

2. In respect of two decrees, each in the amount of Rs.60,000 three houses bearing Nos. 7‑N, 17‑N and 18‑N, Gulberg, Lahore, were attached. Mst. Hamida Begum her sisters and brothers, petitioners in Writ Petitions Nos. 3750 and 3654, challenged the attachment of House No. 7‑N on the ground that this property was exclusively owned by them and that their father who was one of the judgment‑debtor had nothing to do with it. Similarly in respect of Houses Nos. 17‑N and 18‑N, Messrs A1‑Jadid Enterprise, a registered firm, which is petitioner in Writ Petitions Nos. 3590 and 3653, lodged an objection in the Executing Court, alleging that these properties belonged to it and that the judgment‑debtors had no concern with them. The Executing Court directed the writ petitioners to deposit the decretal amounts in Court as a condition precedent to the consideration of their objection; it further directed that in case they failed to deposit the decretal amounts their objection would stand rejected. The writ petitioners challenged the orders of the Executing Court in revision before the learned Additional District Judge. The learned Additional District Judge declined to entertain their revision petitions on the ground that the order of the Executing Court was not a 'case decided'. The writ petitioners have now come in this Court to challenge the orders of the Executing Court as well as of the Additional District Judge.

3. It is not disputed that Mst. Hamida Begum, her brothers and sisters are the sons and daughters of one of the judgment‑debtors, namely, Mian Aziz‑ud‑Din. Their case is that their mother, Mst. Nasib Begum, was an affluent woman in her own right. On her death she had left behind fairly extensive property. There was a division of her estate as a result of which House No.7‑N came to their share. Their father, therefore, had nothing to do with the house and for that reason the said house could not be attached or sold in order to discharge his decretal liabilities.

4. The case of Messrs Al‑Jaded Enterprises is that Houses Nos. 17‑N and 18‑N were purchased by one Nisar Ahmad Qureshi in an auction held by a Court. Subsequently, in 1972 he sold the houses to the firm. The firm consisted of three partners of whom only one, namely, Malik Niaz Mohy‑ud‑Din was related to Mian Aziz‑ud‑Din, judgment‑debtor through the marriage of his son with the daughter of the latter. 5, Although the learned Executing Court has not so specifically stated, it appears that its order with regard to the deposit of the decretal amounts is founded on rule 23‑A of Order XXI of the Code of Civil Procedure. it reads as follows:‑ "An objection by the judgment‑debtor to the execution of a decree shall not be considered by the Court unless‑‑ (a) in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment, and (b) in the. case of any other decree, he furnishes security for the due performance of the decree." It is contended on behalf of the writ petitioners that they are not judgment‑debtors inasmuch as no decree or order capable of execution has been made against them; further, they do not object to the execution of the decrees but are merely challenging the sale of their properties in order to discharge the decretal liabilities of Mian Aziz‑ud‑Din from whom they have not inherited any .property whatsoever; on the other hand, the objection which they have lodged fall under rule 58 of Order XXI (ibid), which does not make the deposit of the decretal amount as a condition precedent to the entertainment of an objection.

6. There is merit in the contention raised on behalf of the write petitioners. Rule 23‑A which requires deposit of decretal amount in Court or furnishing of security for its payment is applicable to a judgment‑debtor alone who raises objections with regard to the execution of the decree or order passed against him. The expression 'judgment debtor' has been defined in section 2(10) of the Code of Civil Procedure so as to mean a person against whom a decree has been passed and an order capable of execution has been made. The writ petitioners aver that they have not inherited any property from Mian Aziz‑ud‑Din and as such they are not his legal representatives. It is a matter of evidence whether their assertions in this regard are factually true or not. Without holding some sort of inquiry the learned Executing Court ought not to have applied the provisions of rule 23‑A (ibid), in their cases straightaway by making the deposit of the decretal amounts a condition precedent to the entertainment of their objections. I would accordingly declare its order to be of no legal effect. The objection petitions filed by the writ petitioners should be treated as still pending and disposed of in accordance with law. The attachment of the properties in dispute will continue and the learned Executing Court should dispose of the objection petitions filed by the writ petitioners within six months under intimation to this Court. There will be no order as to costs in these writ petitions. M.B.A. Order accordingly.