P L D 1971 Karachi 255 (PLP)

Khalid Ishaq and N. P. Naqvi for Defendants. Date of hearing : 4th December 1969. While evidence was being recorded on the Intervenors' application under Order XXI, rule 58, C. P. C., Mr. Abbas Zia, the learned counsel for the decree‑holders, raised a preliminary point concerning the jurisdiction of this Court to hear and dispose of the intervenor's application. According to him an application under Order XXI, rule 58, C. P. C., by its very terms, would lie only to a Court executing the decree and not to the Court which passed the decree but was not executing it. I preferred to immediately dispose of this preliminary objection as need for recording evidence could have been obviated if Mr. Abbas Zia were to succeed in his objection.

2. The brief facts which are relevant to the present objections are that on the 11th of December 1967, a decree was passed against the present judgment‑debtors for a sum of Rs. 33,845.96 with costs and interest. Since the judgment‑debtors did not appear to have any property within the jurisdiction of this Court against which the decree could be executed, the decree‑holders had applied for issue of a precept to the District Judge at Lyallpur. This precept, it would appear, was granted on the 31‑3‑69 by this Court and was sent to the District Judge at Lyallpur in July 1969, for implementation. However, the precept could not be executed on account of obstruction. In September 1969, the precept was re‑issued and this time with police aid. Pursuant to the said precept the property now in question was attached on the 4th of September 1969, by the District Judge at Lyallpur. Subsequently on the 18th of October 1969, the decree in the suit was transferred to the District Court at Lyallpur in accordance with the provisions of section 39 read with Order XXI, rule 6, C. P. C., for being executed there.

3. The intervenors have objected to the attachment of properties made pursuant to the precept and have moved an application under Order XXI, rule 58, C. P. C. in this Court.

4. Mr. Abbas Zia, the learned counsel for the decree holders contended that an application under Order XXI, rule 58, C. P. C. would lie only to the Court which was seized of the execution proceedings. The Court which issued a precept under section 46 of the C. P. C. is not a Court executing the decree. According to him an application for issue of a precept lies only to the Court which pass A the decree and by the mere issue of a precept the Court which passed the decree did not become the Court executing the decree. Mr. Abbas Zia relied on certain cases, notably, A I R 1938 Lah. 95, A I R 1940 Cal. 26 and A I R 1933 All. 844, in support of this proposition. I do not think any authority was necessary for the purpose that the Court issuing a precept is not a Court executing a decree. The point for consideration, however, is whether the application under Order XXI, rule 58, C. P. C., would lie to the Court issuing the precept or only to the Court which executes a decree. The answer to this question can be had in rule 58 of Order XXI itself. This section may conveniently be reproduced: (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection." It would appear from a perusal of the above rule that it is intended to apply to claims preferred to any property attached in execution of a decree and to any objections made to the attach ment of any property attached in execution of a decree. The use of punctuations in the first part of sub‑rule 1 of rule 58 is significant in so far as the claim and the objections are both referable to property attached in execution of a decree. Now, property attached in execution of a decree is not the same thin as property attached pursuant to a precept. The Court which issues a precept is not even the Court which attaches the property pursuant to the precept. It is the Court to which the precept is issued which attaches the property. I am in respectful agree ment with the view expressed by Sen, J., of the Calcutta High Court in the case of Sreeman Rai Kissenji v. Sri Kissen Machar (A I R 1940 Cal. 26), wherein he observed that "the order issuing a precept is not an order directing the execution and the attachment under a precept under section 46, C. P. C., is not an attachment in execution proceedings. It is merely a step taken to facilitate execution, it is not a step taken in the proceedings in execution" 1B A similar view has been expressed in A I R 1933 All. 844 and A I R 1946 Cal.

249. In the latter case it was observed that the application for issue of a precept and attachment under section 46, C. P. C. cannot be regarded as an application for execution. It is, therefore, quite obvious that an application under Order XXI, rule 58, C. P. C., will lie only in those cases where property is attached in execution of a decree and not C where the property is attached pursuant to the issue of a precept under section 46, C. P. C.

5. I would have rejected the present application under Order XXI, rule 58, C. P. C., on the above findings but in that case the intervenors would have been left with no remedy against the attachment which had resulted, according to them, in the sealing of their place of business. The fact remains that the shops have been sealed pursuant to a precept issued by this Court. The question to determine now is whether the inter venors were lawfully in possession of the said shops at the time they were sealed and whether otherwise, they have a fair and bona fide case to establish their right to be in possession. If the remedy under Order XXI, rule 58, is not available to them then it seems that there is no other provision under which they could agitate their grievance and obtain quick relief. The Civil Pro cedure Code does not seem to embody any provision under which attachment effected under or pursuant to a precept can be objected to and it is unthinkable that if the intervenors' case is true they should suffer sealing of their shop without the possibility of seeking a remedy for any length of time. It true that a precept is valid for only two months unless extended by the Court issuing it. But this period can be extended and one may conceive of a case in which the precept is extended time after time on account of circumstances justifying it, and the persons claiming interest in the attached property wait till the Court executing the decree finally initiates execution proceedings. I think it is precisely for eventualities of this nature that section 151 of the C. P. C. has been designed and this section has been included in the intervenors' present application under Order XXI, rule 58, C. P. C. I have also no doubt in my mind that this application will lie to the Court issuing the precept since it is the action of this Court which has been translated by the Court to which it was sent and it is a precept issued by this Court which gives to the intervenors the cause for moving the present application. In the precept issued by this Court the properties which are to be attached have been indicated. The Court to which the precept was sent for implementation has no authority vested in it but to implement the precept as issued. It is only the Court which issues the precept which can order its recall or direct a change in it.

6. In view of the foregoing discussion; I would treat the intervenors' application as one under section 151, C. P. C. and proceed to enquire into the objections taken therein. A. S.Order accordingly.