2009 PLP 375 (MLD)

NADEEM AZHAR SIDDIQI, J.

By filing of this application the objectors, namely, Naseem Akhter and Arshad Mehmood Choudhry have objected for the sale of the two properties mentioned in Column Nos. 11(a) and 11(b) of this execution application. The properties bearing Nos. CD-6 and CD-7, Block-CD situated in Al-Falah Co-operative Housing Society, Limited, Shah Faisal Colony, Karachi, measuring 80 and 124 square yards respectively are claimed by objector Arshad Mehmood Choudhry as exclusive owner of the properties, whereas the property bearing Plot No.A-62, Block-A, measuring 135 square yards situated in Al-Falah Co-operative Housing Society Limited, Drigh Colony, Karachi is claimed by objector Naseem Akhtar as her exclusive property. The Decree-Holder has tiled counter-affidavit and submits that during his employment with the Decree-holder the judgment-debtor has embezzled huge amount. It was further stated in the counter-affidavit that the properties attached belong to the judgment-debtor and to avoid execution false story has been concocted. The learned counsel for the objectors filed rejoinder to the listed application, which is taken on record. He submits that the objectors are the owners of the said properties in their own rights and are not claiming through judgment-debtor. He submits that the property owned by Naseem Akhter has been leased in her favour in the year, 1991 even before filing of the suit and the same was acquired by her from her own resources without having any help and assistance from the Decree-holder. Regarding other properties he submits that the same were acquired by the J.D. from the funds made available by his son Arshad Mehmood Choudhry and for that reason the said properties were gifted in favour of his son Arshad Mehmood Choudhry the object in the matter. The learned counsel for the Decree-holder submits that the objector Naseem Akhtar is a housewife an has no independent source of income. The contention of the learned counsel for the objectors has force for the reason that the property was leased in her favour even before filing of the suit and it cannot be said that the defendant/J.D. with intention to frustrate the decree has transferred the property in favour of the objector Naseem Akhter. At this stage it cannot be gone into who has provided the funds for the purchase of property. The title document produced by the objector is sufficient to prove that the property belongs to objector. Regarding the properties owned by the objector Arshad Mehmood Choudhry son of J.D. the learned counsel for the decree holder submits that from the Gift Deed submitted along with the application it is clear that the gift was made in favour of his son by J.D. on 27-11-2004 after passing of the decree in the matter, which was passed on 4-3-2004. He further submits that the gift was made after passing of the decree to defraud the decree-holder and to avoid execution of the decree. The learned counsel for the objectors then referred to Annexure 0/3 and some other documents to show that Arshad Mehmood Choudhry has received this amount through his son from Canada for purchasing the said property. The contention of the learned counsel for the objectors has no force for the reason firstly that in the certificate issued by the Bank it has not been mentioned that who has remitted the said amount to the J.D., secondly that no supporting documents have been filed to link the certificate of the bank from the transactions of acquiring the property in question and thirdly the certificates which were, dated 3-1.1-2004, 9-3-2005 and 22-5-2003 are after the date of acquiring the property by the J.D. which as per gift deed was acquired on 29-4-2003. For invoking the provision of Order XXI, Rule 58, C.P.C. the objector has to prove that he acquired the title in the good faith and for consideration subsequent to the date of first attachment. In this matter the objector Arshad Mahmood Choudhry is the son of judgment-debtor and has got the property by way of Gift Deed executed in his favour after the decree. The objector was also party to the suit and it appears that after dismissal of the suit against the objector the property was transferred in his name to avoid execution of decree. The objector is claiming the property attached through J.D. who is his father and not independently. In view of the above position, it is clear that the J.D. in order to avoid execution of the decree has fraudulently transferred his property in favour of his son, hence for the above reason, the application is partly allowed in respect of the property owned by objector Naseem Akhtar and partly dismissed in respect of the properties claimed by objector Mehmood Choudhry. The property owned by the objector Naseem Akhter is released from attachment. The Nazir is directed to comply with the order, dated 7-12-2007 in respect of property claimed by the objector Arshad Mehmood Choudhry i.e. Property Nos. CD-6 and CD-7, Al-Falah Society, Karachi. The application filed by the objector is disposed of in the above terms with no order as to costs. H.B.T./S-119/K?????????????????????????????????????????????????????????????????????????????????? Order accordingly.