1985 PLP 430 (MLD)

Z.U. Ahmed for Respondent No.

1. Ali Ahmed Tariq for Respondent No.

2. Applicant Mst. Fatima Begum has challenged, in this judicial miscellaneous application under section 12(2), C.P.C. judgment and decree, dated 17-3-1977 passed by a learned Single Judge of this Court in Suit No. 510/73 for specific performance of contract of sale of a House No. J-305/7, D-276/A-3, New Town, Karachi by the respondent No.2 (Shaikh Muhammad Taqi) in favour of the respondent No.1 (Muhammad Anwar Khan Ghori). The judgment and decree was upheld by the Supreme Court. The decree-holder, who is the respondent No.1 here in, has filed Execution Application No. 43 of 1983 for execution of sale-deed and possession of the house. The decree has been partly executed and sale-deed has been executed in favour of the respondent No. 1 and the execution proceedings for delivery of possession of the house to him are still pending. The applicant seeks stay of the execution proceedings during the pendency pf the application. The applicant is the wife of the respondent No.2 who is the judgment-debtor. She claims that he (the respondent No. 2) had gifted to her the house, which is the subject-matter of the litigation, in the year 1966 and she has become owner thereof, and that he had made the agreement of sale with the respondent No.1 without her Knowledge and, therefore, the decree passed against him is not binding on her. According to her, she has no knowledge of the entire litigation in respect of the house between the respondent No. 1 and the respondent No.2 and she became aware thereof after the matter ,was decided by the Supreme Court. The respondent No.1 has resisted the application including the prayer for stay of the execution of the decree. Of course, the, respondent No. 2 has turned the tone of the applicant. The parties have embarked upon adducing evidence. The applicant has produced her evidence. The respondent No.2 also has given evidence. Only respondent No.1 has to adduce some evidence. The execution application also has teen proceeding simultaneously. The learned counsel for the applicant have urged that the applicant has brought out that the suit property belongs to her the agreement for the sale to the respondent No.1 by the respondent No.2 was in concealment of the fact that the house had been gifted to her and, therefore, the decree is liable to be set aside. According to the learned counsel, the execution of the decree during the pendency of the application would make the application infructuous and the execution proceedings may be stayed until the respondent No.1 produces the evidence and the application is disposed of. The learned Advocate for the respondent No.2 also has teed the same line of argument. But the learned counsel for the respondent No.1 has opposed the application contending that the sale agreement was entered into in the year 1970, the suit for specific performance thereof was filed in the year 1973, the decree was passed in the year 1977, the execution application was filed in the year 1983 and the appeal in Supreme Court was dismissed on 23-1-1984 and the applicant, who is the wife of the judgment-debtor, remained quiet all along and she has come forward with the plea that the house belongs to her by virtue of gift, after the appeal was dismissed in the Supreme Court. According to him, the evidence by the appellant does not confirm her claim. He has contended that the applicant's plea for stay of execution application was repelled by order dated 9-12-1984 passed in the Execution application and that order has not been appealed against and no order for stay of the execution application can be made under this judicial miscellaneous application. The applicant has put forth evidence that the house in dispute was gifted to her by the respondent No.2 in the year 1966. She has filed in support of her claim a deed of declaration of gift dated 4-7-1966 made in her favour by the respondent No.2. She has also brought on record through a witness Muhammad Qasim, City Surveyor, examined by the respondent No.1, that she had mad! an application, dated 15-4-1975 (Exh. 45) to the City Deputy Collector, Survey Department, Karachi for mutation of her name in place of that of her husband in respect of the said property on the basis of gift. She has also brought on record through the same witness an application dated 20-4-1981 (Exh.44) made by her to the Mukhtiarkar (East) Karachi for an extract of the record regarding the aforesaid house. Her claim has been supported by the respondent No.2, although he did not disclose that fact during the course of litigation which has occupied about 12 years. Whatever may be the intrinsical merit of the applicant's evidence on thorough appraisement, she put forth prima facie case that the house had been gifted to her and that fact was not disclosed during the course of the litigation. The respondent No.l has yet to adduce evidence to meet the challenge through to his title acquired by due process of law. The execution of the decree for the relief of possession of the house in such situation would frustrate proceedings she has inducted under law; and stay of further proceedings in execution application would not prejudice the title of the respondent No.l unless the impugned decree is set aside. In my opinion, the order dated 9-12-1984 in the execution application that proceedings therein should continue does not stand in the way of prayer for stay of the execution proceedings made in this judicial miscellaneous application which is an independent proceedings calling in question the legality of the decree itself. I would, therefore, without prejudice to the merit of the case for final adjudication, order that further proceedings in the Execution Application No. 43 of 1983 may be stayed till the disposal of the judicial miscellaneous application with the direction that the proceedings in this judicial miscellaneous application should proceed from day to day as far as practicable and the respondent No.l shall be at liberty to make an application for recalling of this order if the proceedings are unreasonably delayed on account of delay caused by any act and/or omission on the part of the applicant or the respondent No.2. H.B.T.