2003 PLP 528 (CLD)

Sh. Izhar‑ul‑Haq for Petitioner. Mukhtar Ahmed Rana and Masood Ahmed Bharwana for Respondents. Date of hearing: 25th November, 2002. MIAN SAQIB NISAR, J.‑‑‑Respondent No.1 filed a suit against respondent No.3 for the recovery of an amount of Rs.3,65,297 and a decree was passed in favour of the said respondent. In execution of the above decree, the property in question was attached the appellant filed objections to the above attachment, claiming that the judgment‑debtor had executed the agreement to sell in his favour for the sale of the property and that he is also in possession thereof. Learned executing Court, through the impugned order, has dismissed the objections holding that the agreement to sell does not create any right or interest in the movable property and therefore, on the basis of mere agreement, objections cannot be maintained. Aggrieved of the above, the appellant came up in the present EFA in which on 7‑11‑2000, the following order was passed on C.M. No.2 of 2000:‑‑ "Subject to notice for the date aforenoted, the property in dispute shall not be auctioned." However, being unaware of the above order, the Banking Court had put the property to auction and respondent No.2 is stated to be highest bidder.

2. Learned counsel for the appellant states that the objection petition was dismissed on the ground that mere agreement to sell does not create any right or interest in the immovable property. But the subsequent development in the matter is, that in pursuance of his suit for specific performance against respondent No.2, decree for specific performance had been passed by the Civil Court in favour of the appellant and in execution of the decree, a sale deed had also been executed in his name. Now his position has improved to that of the owner of the property, rather being mere holder of an agreement to sell, therefore, in such situation, he has vital interest in the property and without determination whereof, the property could not be sold. It is also stated that the property was put to auction, not only after the stay granted by this Court on 7‑11‑2000, but also the injunctive order, issued by the executing Court itself.

3. We have heard learned counsel for the parties. As far as the auction in favour of respondent No.2, is concerned, suffice it to say that it was conducted in violation of the stay order passed by this Court dated 7‑11‑2000. It is settled law that a "stay order" issued by a, superior Court against the order of the Court subordinate, even if not conveyed/communicated or served upon the opposite side, or the Court below, shall operate the moment, it has been passed, in contrast to the injunctive order which becomes effective, when it is served, etc. and in certain case, comes to the knowledge of the concerned person. From the admitted facts on the record, property had been put to auction, subsequent to the stay order, thus any auction in favour of the said respondent, is null and void. The counsel for the purchaser has conceded to the above legal position in the Court and has prayed for the withdrawal of the amount deposited by his client. The request is allowed.

4. As far as the appellant is concerned, certain new facts have been brought on the record, which are subsequent events and the developments in the matter. Although, the Appellate Court , is empowered and has the authority to take into consideration, the events. occurring during the pendency of an appeal, especially those which have close nexus to the lis between the parties, yet in the present case, we find that for the true ascertainment of the subsequent events, some factual inquiry may be needed. Moreover, until and unless appropriate amendment is sought and allowed in the objection petition of the appellant, it shall not be proper to take into account these events, on the rule that no one is entitled to plead his case beyond the scope of his pleadings. Further, it is also expedient that the decree‑holder who may feel effected on account of the above decree, should have full and proper opportunity to defend its position in black and white. In the light of above, by. allowing this appeal, the impugned order is set aside with the direction to the appellant to apply to the Court below for appropriate amendment in his objection petition, which if allowed, respondent/decree‑holder, shall be permitted to file his reply and thereafter, the objection petition, be decided afresh. M.B.A./B‑126/L Appeal allowed.