1986 PLP 482 (MLD)

Date of hearing: 15th October, 1985. This application under Order XXI, Rules 58 and 61 and Order IX, Rule 13 read with section 151, C . P . C . filed by one Izat Khalil son of Muhammad Khalil prays for setting aside:‑ (i) the ex parte decree, dated the 31st of July, 1982, passed in the suit titled "Union Bank of Middle East v. Salad Carpets Limited"; and (ii) the attachment of the property ordered in pursuance of the aforementioned decree.

2. This application has been resisted by the decree‑holder who has also raised preliminary objection to the effect that the applicant has no locus standi to file this application or for that matter to object to the attachment.

3. The learned counsel for the applicant‑objector submitted that the decree is simplicitor for recovery of money; whereas it is being executed as a mortgage decree.

4. He next contended that the applicant‑objector having entered into an agreement of sale with the judgment‑debtor on 17‑9‑1982 and having paid the total price under the aforesaid agreement, the attachment of the property which is owned by the objector could not be ordered, Reliance has been placed in this regard on a photostat of the alleged agreement entered into between the applicant‑objector and judgment‑debtor No‑2.

5. The last contention of the learned counsel for the applicant objector was that ex parte decree had been passed without adhering to the requirements of law in this regard and, therefore, the attachment is illegal.

6. The learned counsel for the decree‑holder on the other hand contended: First, that the application is not maintainable as no valid title in the property had passed on the objector; his claim being based only on an agreement of sale which is void in view of provisions of Section 52 of the Transfer of Property Act. He elaborated his contention by submitting that the mortgage in favour of the decree‑holder was created on 12th of September, 1979, the suit was instituted on 18th of July, 1982 and the decree passed on 31st of July, 1982; whilst the sale agreement is admittedly of a later date viz. 17th of September, 1982. He in this regard relied on "Hakim Ghulam Rasool v. Sh. Imdad Hussain and another reported as P L D 1968 Lah. 501 and Pir Abdullah Shah and 8 others v. Humayon and 5 others reported as P L D 1957 (W.P.) Lahore 1054; Secondly, that the agreement to sell does not in any manner convey any title in the property and, therefore, the objector has no locus standi to file any objection: Reliance has been placed in support of the above contention on Muhammad Ishaq v. Muhammad Siddique reported as P L D 1975 Lah. 909; Thirdly, that Order XXI, Rule 102, C.P.C. also bars the entertainment of the objection application inasmuch as under the said rule no one can claim any property which he has purchased after the institution of the suit; and Lastly, that the objector being a third party cannot challenge the validity of the decree by filing objections under Order XXI, Rule 58, C.P.C. He argued that under the aforementioned provision, relief can only be had if the applicant‑objector establishes that the property belongs to him and that the same does not vest in the judgment‑debtor. It was also urged that the validity of the decree could only be challenged by the judgment‑debtor under section 47, C.P.C. which section does not confer any right on a stranger to question the same.

7. Having given consideration to the controversy involved, I am of the view that the contentions raised on behalf of the applicant‑objector have no force. The first contention even on factual plane is not supported by the record. The decree is not being executed as a mortgage decree but the property though claimed to be under an equitable mortgage has been attached in pursuance of the decree and further proceedings in respect thereof are being taken in consequence of the attachment.

8. As regards the second contention, it may be observed that the agreement of sale pressed into service by the applicant‑objector in no manner passes any title to the objector, it having been admittedly executed on 17th of September, 1982, i.e. on a date subsequent even to the passing of the decree.

9. The established position on the record is that the original document of title had been deposited by the judgment‑debtors with the decree‑holder on 12th of September, 1979, for the purpose of creating an equitable mortgage, the suit had been instituted on 18th of July, 1982, and decreed on 31st of July, 1982, i.e. much before the alleged agreement to sell in favour of the objector was executed. That being so, the alleged right of the objector whatever its worth may be was created during the pendency of the suit or to be more exact after the passing of the decree.

10. Giving effect to any such right as against a decree would amount to undermining the firmly established principle behind section 52 of the Transfer of Property Act, 1882. The importance of the principle underlying section 52 ibid needs no emphasis and I suffice by observing that but for it no decree could ever have been successfully executed.

11. Apart altogether from the above position it may also be observed that the title in an immovable property of the kind involved in the present controversy can only be transferred by means of a registered sale‑deed. Mere agreement to sell even if bona fide executed will pass no valid title to the intending purchaser and the same will remain vested in the judgment‑debtor so long as a lawful transference thereof had not been effected before the institution of the suit. In the case in hand it being the admitted position that the agreement had been executed after the decree in the suit had been passed, the decree can in no manner be defeated by the agreement as no equitable right even is available to the objector in regard to the property in dispute.

12. The learned counsel for the decree‑holder has also rightly pointed out that Order XXI, Rule 102, C.P.C. does not allow the raising of objections to an execution when the interest in a property is claimed to have been acquired during the pendency of the suit. Not only Rule 102 ibid but section 52 of the Transfer of Property Act is also an obstacle in the way of the applicant‑objector to assert any title to the property in such a case. The objector cannot be termed a person adversely affected by the decree, he having acquired the title after the institution of the suit and in the attendant circumstances of the case in hand presumably with knowledge about the pendency of the' suit and of the passing of the decree therein. He will thus sink or s alongwith his predecessor‑in‑interest viz. the judgment‑debtor. Relief if any granted to the applicant‑objector on the basis of his alleged interest acquired during the pendency of the suit/after the passing of the decree will obviously have the effect of deflecting the true intent of Order XXI, Rule 102, C . P. C . Likewise, as already observed above, the principle of lis pendens will also be negated in case the asserted right of the applicant‑objector is in any manner given effect.

13. Whilst on the subject, I feel inclined to observe that in order to obviate frivolous objections and to ensure that the decrees are executed without any delay and are not frustrated, the claims /objections made to the attachment of properties especially those in which interest has been asserted on the basis of events occurring subsequent to the institution of the suit or passing of the decrees should be viewed in the light of all the rigours of Rules 58 and 102 of Order XXI, C.P.C. as also of section 52 of the Transfer of Property Act.

14. Before parting with the case I would like to deal with the contention of the learned counsel for the objector that the decree having been passed without adhering to the provisions of law, the attachment and sale of the property thereunder is not valid. In this regard I suffice by observing that the right to object to the decree cannot be conferred upon an objector simpliciter which the applicant is. A decree can only be objected to under section 47, C.P.C. and the said section in no manner confers a right on a stranger to object to the decree. An objector simpliciter can only file objections to the attachment of the property under Order XXI, Rule 58, C.P.C. by showing that the same does not vest in the judgment‑debtor.

15. In view of the foregoing discussion there is no merit in this application, which is accordingly dismissed. A. A. Application dismissed.