P L D 1980 Karachi 436 (PLP)

(1) C. M. A. ?11/79.--(a) This is an application filed by the wife of the judgment-debtor (hereinafter referred to as intervenor No. 1) under section 151, C. P. C. praying, therein for the following relief : "It is therefore, prayed that this Hon'ble Court may be pleased to pass orders to the effect that the movable properties which are lying at the premises mentioned hereinabove and not belonging to the J. D. are not liable to attachment and the same shall not be attached by the Bailiff of this Hon'ble Court." (b) Intervenor No. 1 has also filed a list mark 'C' containing, the detail of the movable articles which according to her belong to her and do not belong to her husband. In support of the above application intervenor No. 1 has filed two photostat copies of the alleged certificates dated 4-4-1978 and 10-8-1974 (Annexures A & B to the application respectively) Annexure A purports to certify that Dining room and Bed room furnitures mentioned therein were purchased by intervenor No. 1 in 1962. Whereas Annexure B purports to certify that a few items of electrical goods mentioned therein were purchased by intervenor No.

1. The aforesaid list marked 'C' reads as follows : "I-FURNITURE (a) Living room 1. 5-neater sofa. 14. 1 framed painting. 2. 2-water sofa with arms. 15. 4 two-arm cutglass wall fit tings (electric) 3. 3-neater sofa without arms. . 4. 2 Nos. single seater sofas. (b) Dining room 5. 4 Nos. pouffes. 1. 12 seater dining table. 6. 1 cofee table: 2. 12 dining chairs. 7. 1 Rosewood table set consis- 3. 1 sideboard. ting of coffee table and 4 4. 1 serving table. teapoy cluster. 5. 1 carpet (carpet). 8. 1 corner table. 6. 1 statue with pedestal. 9. 1 table lamp with shade. 7. 1 painting.

10. Wall to wall carpet. 8. 1 set weighing scales. 11. 1 Kaiser TV set 20 inch. 9. 1 set curtains.

12. Living room curtains (c) Lounge 13. 1 Embroidery in frame. 1;1 framed mirror 5 x 21 ft. 2. 2 coffee tables 8J ft. 5. 1 Telefunken Radiogram. 3. 1 wooden hall cabinent. 6. 1 Philishave 3 head electric 4. 1 wooden flower pot table. razor. 5. 1 jute backed woolen carpet 6. 1 flax carpet III-CUTLERY CROCKERY 7. 4 durees AND KITCHEN ITEMS 8. 1 stand lamp with shade. 9. 2 sets curtains. 1. 2 stainless steel cutlery sets 10. 4 paintings (framed). each for 12. 11. 4 foam rubber cushions. 2. 1 silverplated cutlery set 12. 2 prayer takhts for 6. 13. 4 low takbts with mattresses. 3. 1 five-arm candlestick. (d) Bedroom 4. 1 bone china dinner set 1. 8 beds with mattresses. complete for 12. 2. 6 bedside tables. 5. 1 bone china dinner set for 8. 3. 2 dressing tables with stools 6. 1 plastic dinner set for 8. 4. 2 easy chairs. 7. 20 glasses. 5. 1 cane bench sead with 8. flower vases, cushions. 9. serving plates and dishes. 6. 2 cane easy chairs with 10. spare teacups and saucers. cushions. 11. 3 jugs. 7. 2 corner tables. 12. 3 serving trays. 8. 2 teapoys. 13. 1 bone china coffee set for 4. 9. 1 coffee table. 14. 8 coffee cups and saucers 10. 2 table Lamps. (16 pieces).

11. I bathroom stool. 15. 1 silver covered china tea 12. 2 durees. service. 13. 2 sets curtains. 16. decorative cups and plates. 14. 4 velvet carpets.

17. Cooking pots, pans, ladles 15. 2 prayer carpets. and other kitchen items. (e) Garden IV--MISCELLANEOUS ITEMS 1. 1 two-seater iron settee with I. Imambara complete with cushions. alams, patks, candlesticks, 2. 4 iron easy chairs with incence burners and scent cushions sprinkler etc. 3. 1 iron coffee table with one

2. Table linen. marble top.

3. Bed linen. 4. 8 iron flower pot holders. 4. blankets. 5. 8 pipe chairs.

5. Razies. 6. 1 electric stand fan.

6. Pillows. II--APPLIANCES

7. Towels. 1. 1 Quickfrez refrigerator.

8. Tiolet articles. 2. 1 Leonard Refrigerator.

9. Samovar, pandan. 3. 1 juicer. 10. spare cushions. 4. 1 Singer sewing treadle

11. Suitcases, trunks, camp-cot, machine. (2) (a) C. M. A. 212/79.-This is also an application under section 151, C. P. C. filed by intervenor No. 2, who is a son-in-law of the judgment debtor, who has also claimed identical relief, and has sought a declaration in respect of the following articles mentioned in the list marked A annexed to the application :- "I. Woolen carpet. 21. 2 table lamps with shades. 2. 1 tea trolley. 22. 2 Electric kettles. 3. 1 AKAI tape-recorder. 23. 1 Hair dryer. 4. 1 Sanyo Radio/Tape-recorder. 24. 1 hair curling tongs. 5. 1 Crown Radio/Tape-recorder. 25. 1 heated rollers for hair. 6. 1 Amana Air conditioner. 26. 1 baby food heater. 7. 1 Singer Electric sewing 27. 1 record player. Machine . 28. 1 Electric Iron. 8. 1 Olympia Typewriter. 29. 1 T. V. indoor Aerial. 9. 1 Philips Colour TV set

30. Glass chandelier arms and 26 inches. components. 10. 1 Linon basket. 31. 1 Argus camera. 11. 1 telephone trolley with 32. 1 Yashica camera. drawers on wheels. ` 33. 7 Thermus flasks. 12. 1 Hitchi tape recorder. `` 34. 2 sets window curtains. 13. 2 Harmoniums. 35. 1 Silver cutlory set for 12 14. 1 pair Tables. persons (115 pieces). 15. 2 tea and coffee tables. 36. 1 Silver bowl. 16. 1 Room heater. 37. 1 baby cot. 17. 1 Electric hot plate. 38. 1 Sitar. 18. 1 Electric grinder . 39, Dressing table toilet sets. 19. 1 Electric mixer. 40. 4 Ash trays." 20. 1 Electric Floor polisher.

3. The facts leading to the filing of the above applications are that the decree-holder had obtained a decree on 15-9-1975 for a sum of Rs. 71,040 plus interest and costs. The decree-holder has filed the above execution application on 4-1-1978 indicating that since the passing of the decree the judgment-debtor had paid a sum of Rs. 9,000 only. In the above execution application the decree-holder has prayed for the following relief : "By attachment and sale of the movable property viz. household goods belonging to the judgment-debtor in his possession at his present residence 6-B Sun-Set Avenue Defence Housing Society, Karachi to be pointed to the Bailiff of this Honourable Court to the extent of the decretal amount under Order XXI, rule 43, C. P.. C." After complying with the formalities, this Court on 7-3-1979 granted the decree-holder's aforesaid prayers. Before the writ of attachment could be executed the intervenors have filed the present applications. The decree holder filed a common counter affidavit to the above applications, wherein it has been averred that both the intervenors are very closely related to the judgment-debtor, one is the son-in-law and the other wife and none of them has armed that the judgment-debtor is not living with them, and that the presumption would be that all the movables except personal clothes, belong to the head of the family (the J. D.) who is quite well to do person and known as Nawab of Sheeshmahal, unless otherwise proved. It has also been averred that the applications are premature and are liable to be dismissed. The intervenors filed re-joinders denying the contents of the counteraffidavit and reiterating the contents of their applications and affidavits. It was reiterated that the articles listed in the two lists belong to the intervenors.

4. On 19-5-1979 intervenor No. I was directed by this Court to file an affidavit disclosing the detail of the judgment debtor's articles lying in the Bungalow. In pursuance of the above direction, intervenor No. 1 has filed an affidavit dated 28-5-1979 wherein, in para. 3 she has averred that only following articles belong to her husband are lying at the bungalow in question. "(I) Teevee wade by Caiser. (ii) Statue made by clay. (iii) 2 Beds. (iv) Chairs. Garden chairs other than those mentioned in my list." The decree-holder has denied the correctness of intervenor No. 1's aforesaid assertion through a counter affidavit. It has been averred that the list of the articles belonging to the judgment-debtor given by intervenor No. 1 is baseless and unbelievable as the person like the social status of the judgment-debtor, who is known as Nawab of Sheeshmahal and was the Director of Motor Corporation of Pakistan Ltd., which had sole agency of Fiat cars for the whole undevided Pakistan, and who was working as the Managing Director of Casino Operating Co. Ltd. and was an industrialist, would be owning only such for articles in his residence. Intervenor filed a rejoinder, wherein she has denied that the judgment-debtor is Nawab of Sheeshmahal. It has been averred that the judgment-debtor belongs to the family of Sheeshmahal lucknow, but it does not mean that he is rich. It has been further averred that the name of the company Motor Corporation of Pakistan Ltd. has been struck off long ago by the Registrar, Joint Stocks Companies and is defunct and that the said company is heavily indebted to Messrs United Bank Ltd., which has filed a suit in respect thereof. It has also been stated that Fiat agency was taken away long ago as from 1972 motor cars agencies were nationalized and that the judgment-debtor was an employee of Messrs Casino Operating Co., of Karachi and have no share in it, and that her husband now is an employee in Tehran. It has also been averred that intervenor No. 1 has independent source of income in the form of rent of a bungalow which she owns and that the tenancy of the Defence Housing Society Bunglow in her name. It may also be pertinent to mention that the judgment debtor has caused the payment of Rs. 32,000 through intervenor No. 1 towards the decretal amount after the filing of the above execution application. 5. (a) The learned counsel for the decree-holder has urged that the present applications are not maintainable being premature as the intervenors will be entitled to, file applications under Order XXI, rule 58, C. P. C. upon the execution of the writ of attachment. Whereas Mr. Mansoor-ul-Arfin the learned counsel for the intervenors has urged that present applications are not applications under Order XX1, rule 58, C. P. C. but they have been filed under section 151, C. P. C. which according to him are competent. In support of his contention Mr. Mansoorul Arfin, has relied upon the case of Bhaghat Singh Bugga v. Devon Jabir Sawhiny (l ), and the case of Messrs Sabina Ltd. v. China Silk House (2). On the other hand Mr. Shabbir Qizalbash has referred to the case of Aziz Salimuddin Haider v. Farooq Ahmad (3), the case of Mohomed 1lyas v: Haroon Textile Mills and another (4), the case of Ali Husain v. Rqfiquddin and 9 others (5) and the case of Munawar Hussain and another v. Rehmat All (6). (b) Referring to the case of 1941 Calcutta case, it may be observed a Single Judge of the Calcutta High Court was pleased to hold that the High Court has inherent power under section 151, C. P. C. to pass-orders mainly on the ground of convenience. In the above case the question for consideration before the Court was as to whether the defendant in the suit pending in the Calcutta High Court could be restrained from litigating in another Court. It may be pertinent to mention, that the defendant in the said case has filed a suit in the District Court of Gujranwalla though no cause of action had accrued within the jurisdiction of the said Court. In that context it was held that the Court could invoke inherent power under section 151, C. P. C. In my view the facts of the above case are distinguishable from the instant case, in as much as the decree-holder has not filed any proceeding in a Court having no jurisdiction. (c) ,Reverting to 1971 Karachi case, it may be stated that the facts of the above case were that the decree was passed for a sum of Rs. 33,845.96 by the Karachi Bench of erstwhile High Court of West Pakistan. Since the judgment-debtor did not have any property within the jurisdiction of the High Court, the decree-holder applied for issue of a PRECEPT to the District Judge at Layallpur, which was granted on 31-3-1969. Pursuant ,to the said precept the property was attached, thereupon, intervenor filed an application under Order XXI, rule 58, C. P. C. in the High Court instead of filing the same in the Court of District Judge Layallpur. A preliminary objection was raised by the decree-holder to the effect that the above application was not competent. It was held by a learned Single Judge that section 151, C. P. C. could be pressed into service as there was no provision for making an application for calling a precept wrongly issued by a Court. In my view, the facts of the above case are also distinguishable from the instant case in as much as there is an express provision in the form of Order XX1, rule 58, C. P. C. for filing an application for getting the attached property released. (d) Referring to 1972 Karachi case it may be observed that a Single Judge was pleased to hold that where other remedies are available to a party inherent power under section 151, C. P. C. cannot be invoked. (e) Reverting to 1977 Karachi case, it may be stated that the facts of the above case were that the wife of the Judgment-debtor filed an application under section 47 read with Order XXI, rules 26, 58, 60 and 62, C. P. C. for seeking declaration that the listed movable properties or similar properties were not liable to attachment in execution of the decree as the said properties amongst others had been gifted away to the intervenor by judgmentdebtor No. 2 on 1-12-1973. Inter alla it was held that an application under Order XXI, rule 58, C. P. C. would have been competent after the attachment of the property. It was also doubted whether resort could be bad in such a case to inherent powers. (1) A I R 1941 Cal. 670 (2) P L D 1971 Kar. 255 (3) P L D 1972 Kar. 68 (4) P L D 1977 Kar. 681 (5) P L D 1977 Lah. 418 0) P L D 1979 Lah. 215 :(f) Reverting to the case of Ali Hussain v. Raflquddin, it may be observed that in the above case the question for consideration before a learned Single Judge of the Lahore High Court was as to whether objections to. a writ of ejectment could be entertained under section 151, C. P. C. before the execution of the writ. It was held that provisions rules 97-103 of Order NXI, C. P. C. being express provisions defining the jurisdiction of the executing Court to decide rights of a 3rd party and providing for its procedure, resort could not be had to inherent power under section 151, C. P. C. to bypass the aforesaid express provisions. The above view was reiterated by another learned Single Judge of the Lahore High Court in the aforesaid recent case of Munawar Husain and another v. Rehmat Ali, wherein it was held that rule 100 of Order XXI, C. P. C. contemplates an application after the dispossession of the person objecting and that inherent jurisdiction of the Court under section 151, C. P. C. could not be invoked to circumvent express provisions of rule

100. It was also held that an application under Order XXI, rule 58, C. P. C. was not competent until the property was attached. (g) A reference can also be made to the case of Onunilal Asharam v. Kashi Bhai Natha Bhai (1) and the case of Narindra Krisho Bose v. Gres Eastern Ltd. (2). In the above Bombay case it was held that the application under Order XXI, rule 58, C. P. C. could not be entertained unless property was attached. Whereas in the aforesaid Calcutta case of 1951, it has been held that a decree made in a suit cannot be executed against one, who is not a party to the suit unless the latter is bound to obey the decree and that if such execution is attempted, the Order XXI, C. P. C. provides a complete procedure for protecting of the right of a person who is not bound by the decree and that where the code provides a procedure for protecting such right, it is ordinarily not right to exercise inherent power and to make an order for restraining the execution of a decree at the instance of the such person. The ratio decidendi of the above cases referred to hereinabove in paras. 5(d) to (g) is that a Court will not invoke its inherent power if ther is an express provision providing redress to an aggrieved party and tba Order XXI, C. P. C. provides a complete machinery to deal with the objection to the execution of the decree.

6. In the instant case the decree-holder has obtained an order of attachement in respect of movable articles belonging to the judgment-debtor and in case the decree-holder will get any article belonging to the intervenors attached, she will do so at her risk, and the intervenors will have remedy provided for under Order XXI, rule 58, C. P. C. It is an admitted position that the judgment-debtor while in Pakistan resides at the bungalow in question with intervenor No. 1 and it is also an admitted position that even according to intervenor No. 1 certain articles belonging to the judgmentdebtor are lying at the aforesaid bungalow. The intervenor's application cannot be entertained at this stage as cause of action will accrue to them upon attachment of their articles for moving an application under Order XXI rule 58, C. P. C. It is possible that the decree-holder may not get the intervenor's articles attached. In my view a simpliciter declaration that certain articles are not liable to be attached cannot be granted under section 151, C. P. C. It is a relief of the nature provided for under section 42 of the Specific Relief Act. (1) A I R 1923 Bom. 381 (2) A I R 1951 Cal. 394 Before parting of the discussion I may observe that I have deliberately refrained from expressing or commenting upon the merits of the intervenor's claim as any observation may prejudice the parties. In view of the above discussion I dismiss the above applications as incompetent/premature, the stay order granted on 14-4-1979 shall stand discharged. The execution shall proceed from the stage at which it was at the time of granting of the aforesaid stay order. Petition dismissed.