P L D 1956 (W (PLP)

MUHAMMAD SHAFI, J.‑The history of the case, out of which this further appeal arises, is highly chequered, the facts involved therein are complicated and peculiar, and the orders, with due deference to the judges, who passed them, con flicting and inconsistent. It was on the 24th of July 1934 that a Firm Mian Noor Muhammad‑Muhammad Amin of Lahore, obtained a decree for Rs. 1,200 with Rs. 136‑8 as costs, total Rs. 1,336‑8, from the Court of Sub‑Judge 2nd Class Lahore against Mian Azizullah and Haji Rahmatullah, sons of Mian Abdullah of Kohat. The decree was transferred to the Kohat Court, for execution. While the execution petition was pend ing in the Kohat Court, the decree‑holders sold away the decree by a deed dated 19th January, 1935, in favour of one Haji Ghulam Nabi, who on 1st August, 1935, took out the execution of the decree in the Kohat Court, and prayed for the attach ment and sale of a house belonging to the judgment‑debtors. This house 'was attached at the spot on 26th August, 1936, and a warrant of sale was issued on 6th October, 1936. The house was to be auctioned on 27th October, 1936, and the report submitted to the executing Court on 29th October 1936. On 27th October, 1936, when the official auctioneer went to the spot in order to auction the house, a statement was made by Haji Ghulam Nabi, the assignee of the decree, that he had received Rs: 1,344 on account of the decree in question and that it stood fully satisfied, and that the house, there fore, should not be auctioned. On 29th October, 1936, the presiding officer of the Court was not present, and the execu tion petition was adjourned to 4th November, 1936, on which date Mian Azizullah, one of the judgment‑debtors, produced a receipt properly signed by Haji Ghulam Nabi, and bearing the date 27th of October, 1936, stating that the decree had been paid in full. Haji Ghulam Nabi, however, made a state ment, that although he had executed the receipt and also made an endorsement on the back of the warrant of sale, yet he had not received the money, and, therefore, the decree was not satisfied. On 7th November, 1936, Mian Azizullah made an application that the payment of the decretal amount to Haji Ghulam Nabi be certified under O. XXI, rule 2 Civil P. C. In support of his application Mian Azizullah produced a mortgage deed dated 27th October 1936, by which he had mortgaged the attached house in 'favour of Sultan Bakhsh, son of Haji Illahi Bakhsh, for Rs. 1,500 with posses sion, for a period of five years. It was specifically mentioned in this deed that Sultan Bakhsh would pay Rs. 1,344 to Haji Ghulam Nabi on account of the decree in execution of which the house had been attached, and shall have the attachment removed. The balance of Rs. 156 was stated to have been paid privately, on account of the expenses for the execution of the mortgage deed. It transpired that it was actually Sultan Bakhsh, who had paid Rs. 1344 to Haji Ghulam Nabi, who wrote the receipt already mentioned, and made a note on the back of the warrant of sale on account of which the sale was not conducted by the official auctioneer. Sultan Bakhsh, it appears, also made an application that the house should be released from attachment, because the pro perty had been mortgaged to him. Ghulam Daud Khan, Sub‑Judge 1st‑Class, Kohat by his order dated 7th December 1936, dismissed Haji Azizullah's application, and declined to certify the payment. He also dismissed the application of Sultan Bakhsh on 23rd December 1936, on the ground that the mortgage deed was invalid in view of the provisions of section 64 Civil P. C. This section lays down that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforce able under the attachment. Haji Azizullah went up on appeal against this order, which was accepted by Mr. M. A. Soofi, the then District Judge Peshawar, by his order dated 3rd February 1939. He ordered that the payment should be certified, but no reference was made to Sultan Bakhsh's application for the release of the property from attachment. There was a further appeal against this order, which was heard by Sir James Almond, the then Judicial Commissioner, N. W. F. Province, who by his order dated 15th March 1940, upheld the order of Mr. M. A. Soofi. In the meanwhile, on 29th December, 1936, the house was actually auctioned, and purchased by Haji Inayatullah for Rs. 1,

525. This auction was accepted by the Court on 2nd March, 1937, in spite of the objections filed against it by Mian Azizullah. It appears that as a result of this auction the possession of the property also was given to Haji Inayatullah, and it was by reason of this fact that when the further appeal was lodged in the Court of the Judicial Commissioner, Mian Azizullah also put in cross‑objections, in which he submitted, that the executing Court should restore the possession of the property to him under section 144 Civil P. C., because of the certification of the payment of the full decretal amount to Haji Ghulam Nabi. Sir James Almond in his judgment rejected these cross‑objections, by saying that no relief could be granted to Mian Azizullah in that appeal, because one of the parties concerned, namely, Haji Inayatullah, the auction‑purchaser, was not before the Court. By the time this order was passed, two most important incidents had taken place viz., (1) that the property had been mortgaged in favour of Sultan Bakhsh, and (2) that it had been auctioned in favour of Haji Inayat ullah. It would have been more equitable in order to stop the further litigation between the parties, if Mr. M. A. Soofi, or Sir James Almond, had impleaded Sultan Bakhsh and Haji Inayatullah as parties to the proceedings pending before their respective selves, and passed an order binding on all the persons concerned. The effect of the certification of the receipt was that while the decree was destroyed on account of full payment thereof having been made to the decree holder, the auction was left completely untouched. The effect of the mortgage in favour of Sultan Bakhsh and the rejection of his objection petition was not referred to in the orders at all. On 5th May, 1939, while the further appeal was pending in the Court of the Judicial Commissioner, N.‑.W. F. P., Mian Azizullah made an application that the possession of the house be delivered to him. This application was dismissed on 13th July, 1939. An appeal against this order met the same fate on 20th December, 1939. The revision petition was dismissed by Hon'ble Kazi Mir Ahmad Khan, judge, judicial Commissioner's Court, N. W. F. P., on 15th May, 1941. In the latter order it was specifically mentioned that the judgment‑debtor, if he so desired, might bring a suit for damages, because that seemed to be the only remedy open to him. After the house was auctioned and purchased by Haji Inayatullah, a sum of Rs. 631‑12‑0 was paid to Haji Ghulam Nabi in lieu of the decree purchased by him from Firm Mian Noor Muhammad‑Muhammad Amin, and the balance of the amount was paid to Firm Haji Rehmat Din and Jalal Din of Sialkot, who also held a decree against the same judgment debtors, and had applied for retable contribution. In the order dated 13th July, 1939, while the application of Mian Azizullah for restoration of the possession was dismissed, Haji Ghulam Nabi was ordered to pay back Rs. 617‑4 with interest from 4th March, 1937, at the rate of six percent per annum to Mian Azizullah, the judgment‑debtor. This order was obviously made on account of the fact that Haji Ghulam Nabi's decree was held as having been fully paid. On 7th March 1942, L. Gurcharan Dass, the then Senior Sub‑Judge, Kohat, ordered Haji Ghulam Nabi to pay back this money to Mian Azizullah. This order was then the subject‑matter of appeal before Mr. M. R. Kayani, who upheld the order on 20th June, 1942. A revision petition against this order was dismissed by Hon'ble Kazi Mir Ahmad Khan, judge, judicial Commissioner's Court, N. W. F. P., on 2nd October 1942. On 16th October, 1944, (this date seems to have been wrongly mentioned by the plaintiffs in the plaint as 26th October, 1944), Sultan Bakhsh sold away the mortgagee‑rights in favour of Hafiz Habibullah, Haji Mian Rahmatullah and Mian Abdul Latif in lieu of Rs. 1,

500. On 25th October, 1948, Hafiz Habibullah and Mian Abdul Latif brought a suit for the recovery of Rs. 1,500 on account of mortgage‑charge, and Rs. 500 as mesne profits, by the sale of the house under O. XXXIV Civil P. C. The defendants in the case were the representatives of Haji Inayatullah, the auction‑purchaser of the house, Sultan Bakhsh, the transferor of the mortgagee‑rights, Mian Azizullah, the original owner of the house, and a few others. The suit was very hotly contested on grounds, both technical and factual, by Mian Azizullah, the original owner of the property, and the representatives of the auction purchaser. Eight issues were framed in the case. They were as under: ‑ (1) Are the plaintiffs barred from instituting the suit, because they did not institute a suit according to O. XXI rule 63 Civil P. C. within one year ? (2) Was the mortgage by defendant No. 11 in favour of defendant No. 10, without consideration ? (3) Is the sale by defendant No. 10 in favour of the plaintiffs without consideration and fictitious ? (4) .Was the house purchased by the predecessor‑in -interest of defendants Nos. 1‑9 and 12 in a Court‑sale benami for defendant No. 11, and its effect ? (5) Is the suit within time ? (6) Are defendants Nos. 1‑9, and 12 bona‑fide purchasers for consideration, and hence the sum in dispute cannot be recovered by the' sale of the house ? (7) Are plaintiffs entitled to the sum of Rs. 1,500 if so from whom ? (8) Are plaintiffs entitled to any mesne profits, if so how much and from whom ? On issue No. 1, the learned trial Judge arrived at the conclusion, following A I R 1934 Pat. 511, that the suit could not be held to be barred, because the interest which the mortgagee had in the property was created after the attach ment and not before it. On issue No. 2, he held that the mortgage by defendant No. 11 in favour of defendant No. 10 was not without consideration. On issue No. 3, he found that Rs. 1,500 were paid before the Sub‑Registrar, and, therefore, the sale was with consideration. On issue No. 4, he arrived at the conclusion that the auction in favour of Haji Inayat ullah was not benami for the judgment‑debtor. On issue No. 5 he held that the suit was well within time. On issue No. 6 he gave somewhat vague and conflicting decision. He wrote in the order "It is therefore clear that the plaintiffs are bona‑fide purchasers for consideration, and in my opinion the house which has come to them is not therefore liable for the sum in dispute. It is not possible to understand what did the learned trial judge mean by writing the above. The plaintiffs in the case were not the purchasers, but were the mortgagees, and if they were the mortgagees for consideration it is very difficult for us to understand as to how then the house could not be made liable for the sum in dispute. If, on the other hand, by the plaintiffs, the learned trial Court meant defendants Nos. 1‑9, then in that cape it should have discussed this point a little further and stated under what provision of law the house could be absolved from the mortgage charge. On issue No. i, the learned trial judge held that Sultan Bakhsh alone was liable to pay the money to the plaintiffs. On issue No. 8 he arrived at the conclusion that the plaintiffs were entitled to the sum claimed. He conse quently granted plaintiffs a decree for Rs. 2,000 against defendant No. 10 alone, and as against the remaining defen dants, he dismissed the suit with costs. On appeal the learned Additional Judge Peshawar, by his order dated 28th October 1952, reversed the decree of the learned trial Court, and modifying it granted a preliminary decree in favour of the plaintiffs for Rs. 2,000 under O. XXXIV, rule 4 Civil P. C. by the sale of the mortgaged house against all the defendants with costs. He further directed that if the mortgage amount together with costs be not paid within six months, the plaintiffs will be entitled to apply for a final decree for the sale of the house under O. XXXIV, rule 5 Civil P. C. The representatives of Haji Inayatullah have come up on further appeal to this Court. Three points were argued before us by the learned counsel appearing for the appellants :‑ (1) that the suit was barred under O. XXI, rule 63 Civil P. C.; (2) that Haji Inayatullah was a purchaser for considera tion, without having notice of the mortgage in favour of Sultan Bakhsh ; and (3) that the mortgage, the sale of which had been made in favour of the plaintiffs, did not at all exist, both on legal grounds, being void under section 64 Civil P. C., and on facts, no consideration having passed between Mian Azizullah, the judgment‑debtor and Sultan Bakhsh. No other point was argued before us. Under O. XXI rule 58 Civil P. C. an objection against the attachment can only be made by a person, who has any interest in the property attached prior to its actual attachment, in lieu whereof he is in its actual and physical possession. Rule 59 of O. XXI, Civil P. C., makes the above point abun dantly clear, because it lays down that the claimant or the objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. Under O. XXI rule 60 Civil P. C., if the Court is satisfied that for the reason stated in the claim or objection such property was not when attached, in the possession of the judgment‑debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment‑debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment. O. XXI rules 59 and 60, Civil P. C. completely exclude any inquiry as against the attachment on the strength of an interest created in a certain person after the attachment. O. XXI, rule 63 Civil P. C. makes the order conclusive only when it is made under rules 59 and 60 of O. XXI Civil P.C. If the orders are not made under those rules, O. XXI rule 63 shall not come into play, and the order passed on certain objections not covered by them would not be hit by the bar laid down therein. We are consequently of the opinion that Sultan Bakhsh's objec tions against the attachment were not the objections under O. XXI rule 58 Civil P. C., and the order passed there upon will not be final under O. XXI rule 63 Civil P. C. The suit of his successors‑in‑interest would not, thus, be barred under this provision of law. In this view of ours we are supported by a Division Bench Ruling of the Patna High Court Mukhram Pandey and another v. Arjun Missir and others (A I R 1934 Pat. 511). So far as the second point is concerned, the only provision of law to which our attention has been drawn by the learned counsel for the appellants is section 41 of the Transfer of Property Act. This section lays down that where, with the consent, express or implied, of the persons, interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. This section is applicable only when the transfers are made by certain person or persons, who is or are the ostensible owners of such property with the consent, express or implied, of the persons interested in the immovable property. The very wordings of this section would in our opinion exclude the auction‑sale from it because there the property is not sold by any person, but is sold under the orders of a Court of Law, and all that passes to the auction‑purchaser is the interest of the judgment‑debtor, if any, existing in the property sold. In the case before us, however, we are firmly of the opinion that no legal transfer has taken place in favour of the auction purchaser. The Court‑auction cannot take place until and unless there is a basis for that auction. In the auctions in lieu of decrees, the existence of the decrees has got to be proved, and if no decree is in existence, in execution of which a certain property can be attached or sold, then the sale in the execu tion of the non‑existing decree will be completely void and ineffective. In this case the decree, in execution of which the property was auctioned and purchased by Haji Inayatullah, was destroyed by the order of the Court as having been fully satisfied. After the destruction of the decree, all proceedings taken in execution of such decree viz., the attachment and sale, would ipso facto be destroyed. The result of the above enunciation of law will be that no legal sale has taken place in favour of Haji Inayatullah, and, therefore, the question of his having purchased the property for consideration without the notice of the interest of any other person does not at all arise. Be that as it may, in this case we find that prior to the sale of the property in favour of Haji Inayatullah, who is very closely related to the judgment debtor, the mortgage of Sultan Bakhsh was fought in open Court. The deed and the receipt of Haji Ghulam Nabi had been produced in Court, and it was claimed that the decree had been fully satisfied. The case was fought in respect of this mortgage right from the 27th of October 1936 ups to the date when the property was auctioned. It is inconceivable that Haji Inayatullah did not know about the mortgage at all, which was certainly not a secret transaction. From whatever point of view the case is looked at, we think that Haji Inayatullah cannot possibly claim to have purchased the property in good faith without notice of Sultan Bakhsh's mortgage. The last and the final question is as regards the legal existence of Sultan Bakhsh's mortgage. It is argued that under section 64 Civil P. C., such a mortgage is absolutely invalid and void. A perusal of section 64 Civil P. C. would show that all transfers and creation of interests in the property which has been attached are not wholly void, but they are only void as against the claims enforceable under the attachment. The question is, is the sale a claim enforceable under the attach ment ? We have already held that the decree in which the attachment was effected had been destroyed by the order of the Court, and with it was destroyed the attachment. There could, therefore, be no claim enforceable under the destroyed attachment. The sale in favour of Haji Inayatullah, thus, would not be a claim enforceable 'under any attachment what soever, and so section 64 Civil P. C. will not come into play at all, As regards the genuineness of the mortgage in favour of Sultan Bakhsh, there cannot possibly be two opinions that it is a genuine transaction. It was by a registered document, and Mian Azizullah himself made an application that this mortgage should be given effect to, and the payment made thereunder certified under O. XXI rule 2 Civil P. C. He never denied the existence of this mortgage or the genuineness of it. So far as Haji Inayatullah or his successors‑in‑interest are concerned, we do not see how does it lie in their mouth to say that the mortgage is either not genuine or is without consideration. The result of the above discussion is that while the mortgage stands, the auction‑sale in favour of Haji Inayatullah falls. In this view of the matter the further appeal must fail, and it is hereby dismissed with costs. A. H. Appeal dismissed.