2020 PLP 26 (CLCN)

ALI BAIG, J.

Through the instant civil revision petition filed under section 115, C.P.C., the petitioner/judgment debtor namely Haji Shabbir Hussain son of Zinat Shah resident of Minapin Nagar has called in question the legality and propriety of the impugned judgment/order dated 04-3-2019 passed by the learned Civil Judge No.III, Gilgit whereby the learned Trial Court/Executing Court has issued direction to the respondent No.4/Assistant Commissioner Gilgit for attachment of decretal property bearing Khasra No.1883/1, mutation No. 2568 measuring two maralas and mutation No.2099 measuring 2 maralas situated near Bus stand Jutial Gilgit along with residential building.

1. Succinctly facts giving rise to the filing of this civil revision petition are that the present respondents Nos. 1 to 3/decree-holders had instituted a suit for recovery of Rs.36881500/- against the present petitioner/judgment debtor in the court of Civil Judge 1st Class No.III, Gilgit. After institution of suit the learned trial court issued notices/summons to the present petitioner/ defendant but the present petitioner/defendant did not appear before the learned trial court despite issuance of ordinary notices/summonses. Lastly the learned trial court issued notice under Order V, rule 20, C.P.C. to the present petitioner/ judgment debtor which was published in daily K-2 but even then the petitioner/judgment debtor did not appear before the learned trial court. Accordingly the present petitioner was proceeded ex-parte by the learned trial court.

2. Thereafter the learned trial court framed as many as seven issues including relief in the light pleading/contents of plaint of the plaintiffs/respondents Nos.1 to

3. After framing of issues the plaintiffs/ respondents Nos. 1 to 3 led their evidence in support of their claim in the trial court. The present respondents Nos. 1 to 3/plaintiffs produced three PWs and has relied upon documentary evidence. The defendant/present petitioner did not produce any oral or documentary evidence as he had not joined the proceedings before the learned trial court and was proceeded ex-parte.

3. On conclusion of trial the learned trial court after recording issue-wise findings has decreed the suit in favour of the plaintiffs/present respondents Nos. 1 to 3 and against the present petitioner/judgment debtor vide the ex-parte judgment/decree dated 19-10-2018.

4. On 03-12-2018, the decree holders/present respondents Nos. 1 to 3 filed an execution petition in the learned Executing Court for execution of aforesaid decree. The learned executing court issued summon to the present petitioner/judgment debtor. Accordingly the present petitioner/judgment debtor appeared before the learned executing court through his attorney namely Muhsin Ali on 23-2-2019 and filed power of attorney on behalf of the present petitioner/judgment debtor in the executing court and the execution petition was posted/adjourned to 04-3-2019.

5. On 04-3-2019, the parties appeared before the learned Executing Court and above named attorney of judgment debtor/petitioner filed conceded written version/reply in the executing court with the submission that the judgment debtor/petitioner has no objection if the decree is satisfied by auctioning the attached property of judgment debtor situated at Jutial Gilgit. The learned trial court vide impugned order dated 04-03-2019 directed the Collector District Gilgit to sale attached/deretal property situated near bus stand Jutial Gilgit along with building constructed on the decretal property through public auction and proceeds of sale be deposited in the Executing Court on or before 18-3-2019.

6. Feeling aggrieved by the impugned order passed the learned Executing Court, the present petitioner/judgment debtor has filed the instant civil revision petition in this court.

7. The learned counsel for the petitioner contended that the impugned judgment/order passed by the learned Executing Court is contrary to law and facts on the record of the case as such the impugned order passed by the learned Executing Court is not maintainable and liable to be set aside. The learned counsel for the petitioner/judgment debtor further argued that the present petitioner/judgment debtor has not appointed Mr. Mohsin Ali as his attorney and the above named person was not authorized to file conceded written reply to the execution petition filed by the present respondents/decree holders, hence by accepting this revision petition the impugned judgment/order dated 04-03-2019, passed by the learned Executing Court may be set aside.

8. On the other hand the learned counsel for the respondents Nos.1 to 3/decree holders supported the impugned judgment/order passed by the learned Executing Court by contending that the present petitioner/ judgment debtor vide special power of attorney dated 2612-2018 duly attested by Oath Commissioner has appointed Mr. Muhsin Ali as his special attorney to appear and file replication in the Executing Court on his behalf who has filed conceded/admissional reply to the execution petition. The learned counsel for the respondents Nos. 1 to 3/decree holders further submitted that the petitioner/judgment debtor has also sworn an affidavit duly attested wherein he has also admitted/deposed that he has to pay the decretal amount to the decree holders, hence the petitioner/judgment debtor is estopped by his conduct and admission to file the present revision petition which may be dismissed in the interest of justice.

9. We have heard the arguments advanced by the learned counsel for the parties and with their able assistance gone through the record.

10. From perusal of record it transpires that the present petitioner/ judgment debtor vide special power of attorney dated 26-12-2018, duly attested by oath commissioner has appointed Mr. Muhsin Ali son of Sultan Ali resident of Minapin Nagar Tehsil Sikandar Abad Nagar as his attorney. The judgment debtor vide an affidavit duly attested by oath commissioner has also deposed that he has to pay the decretal amount to the present respondents Nos. 1 to 3/decree holders and in this connection he has prepared special attorney and has appointed Mr. Mohsin Ali as his attorney stating therein that in his absence the above named attorney will appear in the Executing Court and will record his statement in the executing court on his behalf in respect of execution of decree passed by the learned Executing Court on 19-10-2018 against the present petitioner/judgment debtor.

11. The attorney of the judgment debtor has also filed conceded reply to the execution petition on 04-3-2019, in presence of counsel for the petitioner/judgment debtor wherein he has stated that the judgment debtor/petitioner does not want to file objections under section 47, C.P.C. and he has no objection if attached/decretal property is sold through auction for satisfaction of decree passed by the learned executing court. Even otherwise the ex-parte decree dated 19.10.2018 passed by the learned Executing court has attained finality as the judgment debtor has not filed any appeal or revision against the above said ex-parte decree in any higher forum/court.

12. Thus the present petitioner/judgment debtor is estopped by his conduct and admission to file the instant revision in this court.

13. In view of above stated facts and circumstances we have come to the conclusion that the learned Executing Court has not committed any material illegality or irregularity while passing the impugned judgment/ order warranting interference by this court by invoking it's revisional jurisdiction.

14. The upshot of above discussion is that this civil revision petition has no merit which is hereby dismissed but no orders as to costs. File. SA/99/GB Petition dismissed.