2023 PLP 299 (YLR)

CH. MUHAMMAD IQBAL, J.

Through this appeal, the appellant challenged the validity of an order dated 21.06.2013 passed by the learned executing Court/Additional District Judge, Lahore whereby the objection petition filed by the appellant was dismissed.

2. Brief facts of the case are that the respondent No.1, Naeem Javed, filed a suit for recovery of Rs.10 Million (1 Crore) under Order XXXVII, C.P.C. against the respondent No.2, Nayyar Ahmad Malik. The said suit was ex-parte decreed on 29.11.2010. The respondent No.1 filed execution petition for satisfaction of the decree wherein the suit property was attached by the learned executing Court vide order dated 20.06.2012. The appellant during the pendency of the aforesaid execution petition, filed an objection petition for recalling of the attachment order dated 20.06.2012 on the ground that the appellant entered into an agreement to sell with respondent No.2 regarding plot No.53 Block-U, Phase-II, DHA Lahore against consideration of Rs.5,56,00,000/- out of which Rs.2,25,60,000/- were paid as earnest money and remaining consideration was to be paid at the time of registration of sale deed. The respondent No.2 failed to perform his part of the agreement which resulted into filing of a suit for specific performance against respondent No.2 on 13.07.2010. On the conceding statement of the attorney of respondent No.2 the said suit was decreed on 06.04.2012. The appellant filed execution petition of the decree and during the pendency of the execution petition, the appellant came to know that the suit property had been attached in execution petition filed by respondent No.1 in a suit for recovery under Order XXXVII, C.P.C. The appellant filed objection petition to the execution petition of respondent for de-attachment of the property. The said objections were dismissed by the learned executing Court vide impugned order dated 21.06.2013. Hence, this appeal.

3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance. 4 In execution of the decree dated 13.07.2010 passed in a suit under Order XXXVII, C.P.C., the learned executing court attached the suit property on 20.06.2012 and later on put the said property to auction. The appellant filed objection petition on 09.08.2012 under Order XXI, Rule 58, C.P.C. on the ground that his suit for specific performance qua the suit land had also been decreed vide judgment and decree dated 06.04.2012 and judgment debtor of the respondent remained no more owner of the attached property which is liable to be de-attached.

5. Perusal of record shows that the agreement to sell in favour of the appellant was executed by respondent No.2 on 21.04.2009. The appellant filed suit for specific performance on the basis of the aforesaid agreement on 13.07.2010 which was decreed on 06.04.2012. As per the record of the suit for specific performance filed by the appellant, the possession of the suit property was handed over to the appellant Thereafter, the appellant filed execution petition for registration of sale deed etc.

6. On the other hand, the respondent No.1, during the pendency of the suit for recovery under Order XXXVII, C.P.C, did not file any application under Order XXXVIII, Rule 5, C.P.C. for attachment of the suit property. The suit property was attached in June, 2012 whereas the suit for specific performance qua the suit property filed by the appellant had already decreed on 06.04.2012. Thus, the respondent No.1, as per the judgment and decree of a competent court of jurisdiction, was no more owner of the same, as such, the attachment order could not be made. The learned executing Court, after coming to know the aforesaid facts through the objection petition of the appellant, should have acted lawfully by recalling the attachment order but the learned executing Court erred in law to dismiss the same.

7. It is interesting to note that the respondent No.1 entered into an agreement to sell with respondent No.2 in respect of the suit property on 17.06.2009. It is mentioned in the said agreement, that the respondent No.1 had paid Rs.10 Million (1 Crore) as earnest money but astonishingly qua the same agreement, a cheque was given by the respondent No.2 to the respondent No.1 of the same amount and on the basis of the said cheque respondent No.1 filed suit under Order XXXVII, C.P.C. The above mode of transaction suggest that the respondent was not interested to purchase the suit land.

8. Furthermore, the agreement to sell in favour of the appellant was prior in time i.e. 21.04.2009. The respondent No.1 filed petition under section 12(2), C.P.C. in the suit for specific performance of agreement to sell of the appellant against respondent No.2 which petition was dismissed by the learned Civil Judge, Lahore on 13.06.2019. The appeal of the respondent No.1 was also dismissed by the learned Additional District Judge, Lahore vide judgment dated 22.06.2019 and similarly the civil revision filed by respondent No.1 was also dismissed by this Court on 14.11.2019. The above said decisions were not challenged any further which has attained finality.

9. For what has been discussed above, it can conveniently be held that the learned executing Court illegally and unlawfully dismissed the objection petition of the appellant which order is liable to be set aside.

10. Resultantly, this appeal is allowed, the order dated 21.06.2013 passed by the learned executing Court, dismissing the objection petition of the appellant is hereby set aside and the objection petition filed by the appellant is accepted. Learned executing court shall proceed further in accordance with law. MHS/A-2/L Appeal allowed.