2007 PLP 1681 (MLD)

MAULVI ANWARUL HAQ, J.

A suit filed by the respondent against Mukhtar Ahmad (son of appellant No.5 and brother of other appellants) for recovery of Rs.2,61,250 was decreed on 8-7-2003 by a learned A.D.J., M.B. Din, ex parte with costs and interest at the Bank rate with effect from the date of said institution. Execution petition was filed on 19-9-2003 the property mentioned in Fard Taleega was attached and then ordered to be sold in execution. On 5-11-2003 the appellants filed an application stating that they are the owners in possession of the said houses and without determining and separating the share of the judgment-debtor the auction cannot be made. In the same breath, it was pleaded that in a family partition/settlement the said properties came to the share of the legal heirs while another property came to the share of the judgment-debtor which he sold away although the other co-heirs joined in the sale by the amount was taken by him. The application was resisted. Vide order, dated 4-12-2003 it was dismissed by the learned A.D.J. M.B. Din. He, however, clarified that only the share of the judgment-debtor in the said properties shall be put to sale.

2. Learned counsel for the appellants contends that the matter could not have been decided without recording evidence as the claim of the appellants was that the properties have fallen to their share. Learned counsel for the respondent, on the other hand, contends that there is no material whatsoever on record to necessitate such an inquiry.

3. I have gone through the records of the learned Executing Court. I have reproduced above the contents of the said objection petition. It will be seen that it is stated in the objection itself that the appellants and the judgment-debtor are co-heirs and as such co-sharers in the said property. No particulars of the alleged family partition have been stated in the application. I called upon the learned counsel as to whether he can demonstrate from some material .that the property was partitioned. He has nothing to say. The reason is obvious that the properties are urban and even if co-heirs were to partition the same, it was to be effected by means of a registered document. The learned counsel then contents that the share of the said judgment-debtor could not be sold without getting it separated by partition. This contention is without any force. Every co-sharer has a right to dispose of his share subject to ultimate partition of the joint property. There would be no bar upon the sales through auction of the share of the judgment-debtor as clarified in the impugned order by the learned A.D.J. I do not find any force in this F.A.O.

4. I may note here that I had heard this case on 20-11-2006 and adjourned it for orders today as the appellant-lady present in Court (mother of the judgment-debtor) had prayed for time to consult her sons in the matter of payment to the decree-holder of the decretal amount. Today, on her instructions, the learned counsel has prayed that some time be granted for payment and in case the payment is not made within the said time, the attached property may be sold. I am inclined to grant this prayer. The appellants are given three months' time. They shall make the payment of the decretal amount to the decree-holder/respondent on or before 28-2-2006. In case they fail to do so, the learned Executing Court shall proceed with the sale forthwith. With these observations, this F.A.O. is dismissed without any orders as to costs.

5. A copy of this judgment be immediately remitted to the learned Executing Court along with the records. H.B.T./A-77/L Order accordingly.