1990 PLP 938 (CLC)

Respondent No.2 in person. Date of hearing: 20th February, 1990. These two connected appeals filed under Order XLIII, rule 1 (ii), Civil Procedure Court are against a common order of learned Additional District Judge dated 31‑10‑1989, passed in execution proceedings whereby objections preferred to the attachment and sale of property were dismissed. Relevant facts are:‑ Saeed Mirza sued Muhammad Farooq Butt for recovery of Rs.1,00,000 on the basis of a promissory note, in summary jurisdiction under Order XXXVII, Civil Procedure Code. Defendant filed a petition for leave to appear and defend the suit. Leave was refused and the suit was decreed with costs, on 30‑10‑1986, by the trial Court. Decree was not challenged in appeal. Consequently, it attained finality. On 22‑11‑1986, decree‑holder sued out execution of the money decree. In its course, rooms No.4‑A, 4‑B, 5‑A,5‑B in property No. S‑38‑R‑107 of Circular Road, Lahore were attached. Appellants claimed ownership rights in the attached property and filed objections in the Execution Court for release of the property from attachment. Mst. Shahida Parveen claimed that rooms 4‑A, 4‑B were purchased by her from the judgment‑debtor by two sale‑deeds executed on 11‑3 1986 and registered on 17‑3‑1986. Photo copies of registered sale‑deeds were annexed to the objection petition. Similarly, Zaheer‑ud‑Din Butt claimed ownership of Rooms No. 5‑A and 5‑B on the strength of the sale‑agreement dated 2‑11‑1986, and, the subsequent sale‑deeds dated 25‑12‑1986, registered on 17‑2‑1987. In this case also, only photo copies of the documents were produced. Decree‑holder resisted the objections. It is seen from the execution file that it suffered number of adjournments for hearing of arguments, and, eventually, objections were dismissed mainly on the ground that only photo copies of title deeds were filed which could not be looked into. I regret to note that it was not a satisfactory mode for dealing with the parties' rights by a Court of law. Without being disrespectful to anyone, Executing Court which was presided over by a learned Additional District Judge paid scant regard to the provisions in OXXI, Rules 58, 59 of Civil Procedure Code and without even semblance of a judicial investigation into the alleged title to the property attached, hurried to the adverse decision against the objectors. Rule 59 as amended by Ordinance XII of 1972 enacts that "The claimant or objector must adduce evidence to show that at the date of the enactment, he had a title to or right or interest in the property attached". Rule 58 speaks of investigation about the claim or objection. Basing decision solely on the statement that only photo copies of registered sale‑deeds were produced and not certified ones was not a proper performance of judicial functions nor was it an investigation contemplated by Rules. For proper, correct and satisfactory decision on the objections, as required by Rules, learned Execution Court was obliged to settle issues on the points in dispute, afford an opportunity to the objectors to substantiate their objections by leading evidence, take evidence in rebuttal from the opposite side and then pronounce upon the merits. Summary decision as was done in the instant case was not contemplated by the Rules. The point with which I am dealing is not res integra. It is covered by authorities: In Niaz Ahmad Qureshi v. Messrs Sadiq Traders Ltd. 1987 M L D 2468 (Karachi), Tanzilur Rahman, J., observed: "It seems fair and just that on applications under Order 21, rule 58, C.P.C. the claim or objection be investigated, which can only be done by recording evidence of the claimant or objector, and, in all other respects, as if he was a party to the suit, unless it appears to the Court that the claim or objection has been designedly or un‑necessarily delayed. The learned lower Court does not appear to have recorded any evidence, nor it has given any reason for not doing the same, as required in Rule 58." In Ghulam Oadir (through L.Rs.) v. Haji Munir Ahmad, etc. 1989 M L D 2503 (Lahore) which was a case of objections under Rr.100, 101, Civil Procedure Code, Munir A. Sheikh, J., had this to say:‑ "Learned counsel for respondent No.1 on the other hand could not defend the impugned orders when questioned as to how the determination of the rights of respondent No.1 in the property as alleged tenant and that too under the petitioner could be made without framing issues and recording evidence. The learned Executing Court acted against law. The impugned orders, therefore, are not sustainable on that short ground. The learned Executing Court had no jurisdiction to decide the objection petition without recording evidence." Proceeding upon the above premises, impugned orders were set aside in writ jurisdiction and the case was remanded with direction for its decision afresh after framing the issues and recording evidence of the parties. In Mst. Surayya Begum v. Muslim Commercial Bank Ltd. and 4 others PLD 1990 Lahore 4, a Division Bench of this Court dealing with a similar question observed: "Be that as it may, without going into the merits of the case lest it causes prejudice to any of the parties in the subsequent proceedings, we suffice by observing that the Special Judge (Banking Court) did not care to investigate the claim of the appellant as required by Order XXI, Rules 58, 59 and 62 of C.P.C. and thus the said order cannot be maintained:" In the case before the Division Bench, Execution Court had recorded the statements of the parties before settlement of issues but without recording further evidence had dismissed the objections. Learned Division Bench did not approve of this approach and remanded the case for adjudication afresh in accordance with law. From the above precedent case‑law, it is clear that the impugned order depicted a perfunctory approach to the matter. Impugned decision without affording an opportunity of leading evidence to substantiate the truth of objections could not be upheld. There is not much dispute that under Order XLIII, Rule 1, Civil Procedure Code, an appeal lies from the impugned decision. As the learned Judge below did not correctly approach the point at issue 8 in accordance with the procedural law meant to be followed strictly, I have no option but to set aside the impugned orders to facilitate the decision of the objections afresh in accordance with law and the observations made above. Costs shall abide the event. Records be returned. Parties shall appear before the Court below on' 28‑2‑1990. Learned Judge below shall decide the objections expeditiously preferably within three months from the date given to the parties for appearance before his Court and report compliance to the Registrar of this Court. M.B.A_/S‑676/L Order accordingly.