1989 PLP 1433 (CLC)

TANZIL‑UR‑RAHMAN, J.‑This is an appeal against order dated 21‑4 1987 passed by a learned Single Judge of this Court on an application under Order 7, Rule 11, C.P.C. rejecting the plaint in Suit No.555/86, on the ground that the suit is barred under Order 21, Rule 62, C.P.C.

2. Brief facts, as stated in the plaint, are that the respondent /defendant filed Suit No.327/76 against M/s. Maker & Company and others including Kassim E. Chhapra for recovery of Rs.33,28,153.54 which was decreed by this Court on 10th February, 1977 in terms of the compromise, Kassim Chhapra is the husband of appellant No.l and father of appellant No.2. Respondent had also filed another Suit against M/s. H.M. Silk Mills Ltd. and Kassim Chhapra, which was also decreed on 10‑11‑1977 in terms of compromise. The respondent filed execution application No.103/80 for execution of decree passed in Suit No.327/76 by attachment and sale of a bungalow and movable properties, including household goods such as T.V., Refrigerator, Radio, electric appliances, furniture and fixtures etc. found in possession of the said Kassim Chhapra at 34 Alamgir Road, Karachi. Later on, the respondent filed an application for change of address of the judgment‑debtor as 23, Karachi Memon Cooperative Housing Society, Karachi, which was granted.

3. It was alleged in the said execution application that the said house was owned and belonged to appellant No.l, who had purchased the same out of her own resources from one Iqbal on 2‑2‑1983 through a registered sale‑deed. It was further alleged that all the movables sought to be attached and lying in the house were also the property of the appellant No.l exclusively. The appellants, thus, filed an application under Order 21, Rules 58 and 99, C.P.C. but the same was dismissed on 6‑7‑1986 on two grounds, namely, (i) that the appellants had not produced any evidence, prima facie of the ownership of the movable properties; and (ii) that the properties had not been attached in terms of Order 21, Rule 43, C.P.C. The appellant then filed Suit No.555/86, as aforesaid, for declaration that the movable properties lying in House No.23, Karachi Memon Cooperative Housing Society Ltd., Karachi are owned and belonged to the appellants. The respondent challenged the maintainability of the said suit by making an application under Order 7, Rule 11, C.P.C. on the ground that it was barred under Order 21, Rule 62, C.P.C. which was allowed by order dated 21‑4‑1987, which is impugned in this appeal.

4. The main question which has arisen in the appeal is whether the suit is barred or not under the provision of Order 21, Rule 62, C.P.C. The said provision reads as under:‑ "

62. Question relating to rights etc. of claimant in attached property to be decided by Court.‑‑All questions relating to the right, title or interest of claimant or objector in the attached property shall be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest." This rule is new and has been added by the Law Reforms Ordinance XII of 1972. In its terms, it is similar to section 47, in so far as it confers exclusive jurisdiction on the Executing Court to adjudicate and determine all questions relating to the title or interest of a claimant or objector, not necessarily to be, a judgment‑debtor or a person claiming through him bars a separate suit to establish such right, title or interest. Thus, the claimant or an objector, is obliged to file an objection as provided under Rule 58 of Order 21, CPC and remedy by way of suit is barred by Rule 62 of Order 21,: It is noticeable that by the same Ordinance XII of 1972, Rule 63 of Order 21, was omitted which provided that t where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such 'suit, if any, the order shall be conclusive.

5. Mr. Abul Inam, learned counsel for the appellant submitted that the property having not been attached, the provisions of Rule 62 of Order 21, C.P.C. are not attracted in the case. Reliance has been placed by him on the cases of Muhammad Ilyas v. Haroon Textile Mills and another PLD 1977 Karachi 681 and Muhammad Munshi v. Ghulam Habib and another 1980 CLC 1965. (i) In the first case PLD 1977 Karachi 681 the plaintiff/decree‑holder applied for execution of the decree against the judgment‑debtor by attachment and the sale of a car of the judgment‑debtor lying at his premises at 9 Overseas Housing Society, Farooq Cottage, Karachi, by attachment of household goods such as air‑conditioners, Television, radio, electric fans, fridge, furniture, fixtures, fittings, ornaments, utensils, carpets etc. and such other goods at the pointation of the representative of the Decree‑holder to the Bailiff of this Court lying at the residence of the judgment‑debtor No.2 at Block No.3, Hussaini Co operative Housing Society, Karachi. The intervenor filed an application under section 47, read with Order 21, Rules 26, 58, 60 and 62, C.P.C. and prayed that the listed movable properties are not liable to attachment in execution of the decree as the said property, amongst others, have already been gifted by judgment‑debtor No.2 to the intervenor on 1st December, 1973. Accordingly, the properties having already been gifted by judgment‑debtor No.2 prior to even filing of the suit cannot be attached. On the other side an objection as to the maintainability of the said application was raised and it was contended that the objection to attachment of property could be entertained after the property is attached and not before. Naimuddin, J. (as he then was) thus observed that "the provisions of rules 60 and 62, C.P.C. are attracted also to the attached property. However, even if I could entertain the objections prior to attachment of property and decide the same under my inherent powers (though I doubt that resort could be had in such a case to inherent powers) there should have been prima facie evidence to show that the movable properties ordered to be attached are owned by the intervenor but neither in the execution application nor in the objections filed by the intervenor, nor in the declaration of the gift full or any particulars of the properties‑ are given. Television, radio, transistors, electrical equipments can be identified by their make, number or models etc. but there is nothing on record before me to show that the properties which are ordered to be ‑attached and the properties which are claimed to be gifted are one and the same. Therefore, unless the properties are the same which are covered by the gift, it is not possible to hold that the properties belong to the intervenor." The application was thus dismissed, as premature. (ii) In the second case (1980 CLC 1965) Aftab Hussain, J. (as he then was) of the Lahore High Court on petitioner's objection petition under Order 21, Rule 58 dismissed in default, observed as under:‑ "I could understand this particular point if the matter had been regulated by the old law in which summary proceedings under Order XXI, rule 58 were made conclusive only subject to the right of the aggrieved party to establish the right which he claimed to the property in dispute. The objector thus had a right to file a regular civil suit despite the dismissal of the application under Order XXI, rule 58, but by the amendment introduced by the Law Reforms Ordinance, 1972 the executing Court has the exclusive jurisdiction to decide a question raised under Order XXI, Rule 58, C.P.C. and no civil suit in regard to such question is competent vide Order XXI, rule

62. C.P.C. By Order XLIII, rule 1 (ii) the power of appeal has been conferred upon the Court in regard to decision given by executing Court under the provisions of Order XXI, rule 62." It is thus manifest from the above decision that by virtue of amendment introduced by the Law Reforms Ordinance, 1972, the executing Court has the exclusive jurisdiction to decide a question as to the right, title or claim in the property m question and that no civil suit with regard to such question is competent. In this context it is also to be noted. that by Order XLII, Rule 1 (ii), the power of appeal has been conferred upon the Court in regard to decision given by executing Court under the provisions of Order XXI, rule 62.

6. On the other hand Mr. A.R. Akhtar, learned counsel for the respondents placed his reliance on the case of Mst.Kulsoom Bai v. Mst. Nargis Bano 1985 SCMR 1275 and the case of Mst. Khurshid Begum v. Ghulam Kubra 1982 SCMR 90. (i) In the first case 1985 SCMR 1275, the respondent being owner of a building situate at Saddar, Karachi, brought an ejectment application against her tenant, which was allowed ex parte by the learned Rent Controller. When execution proceedings were initiated, the petitioner intervened and filed objections under Order 21, Rule 99, C.P.C. in which. it was claimed that she was the lawful tenant in occupation of the premises and the order of ejectment was obtained by fraud. These objections were dismissed in default of appearance. No appeal was filed by the petitioner against the dismissal of her objections, but a fresh application raising the same objections was filed, which was, however, dismissed. The petitioner then filed a suit for declaration and injunction before the same Court on the grounds that the order obtained by the respondent in the Rent case was based on fraud. The learned Single Judge rejected the plaint under Order 7, Rule 11, C.P.C. on the ground that the suit was not maintainable by virtue of the provisions of Order XXI, rule .103 of the Code of Civil Procedure and section 56 of the Specific Relief Act. The petitioner challenged this order before the appellate Court but his appeal was dismissed. Finally the petitioner sought to challenge the orders passed by the Courts below by revision under section 115, C.P.C., which was also dismissed by a learned Single Judge of this Court. A petition for Special Leave to appeal against the judgment of this High Court was then filed. The Hon'ble Supreme Court while dismissing the said petition observed that:‑ "On plain reading of the aforesaid provision the right claimed by the petitioner as a tenant in the execution proceedings was to be adjudicate upon and determined by the Court in such proceedings and no separate suit was competent on any such question. If, therefore, the Code of Civil Procedure was applicable, manifestly the suit filed by the petitioner was barred under the aforesaid provision of law. The petitioner's remedy lay in filing an appeal from the order of the Civil Court dismissing her objections as such an order is now the effect of a decree by virtue of section 2(2) of the Code of Civil Procedure, therefore, an appeal could lie therefrom under section 96 of the Code of Civil Procedure. Admittedly no such appeal was filed by the petitioner. As to the second contention of the learned counsel it may first be pointed out that the petitioner had conceded before the High Court that her objections were covered by Order XXI, rule 100 of the Code of Civil Procedure and the High Court proceeded on the basis of this concession. The petitioner cannot be allowed to approbate and reprobate by raising the contention that the Code of Civil Procedure is not applicable. However, section 17 of the Urban Rent Restriction Ordinance clearly laid down that an order passed by the Rent Controller shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Manifestly, therefore, the execution proceedings in respect of the order of eviction were filed before the Civil Court and since such order had the effect of a decree passed under the Code of Civil Procedure the provisions of Order XXI of the Code of Civil Procedure were attracted." (ii) In the second case 1982 SCMR 90 it was held by the Hon'ble Supreme Court that the objection petition filed by a person in his own right and not claiming through the judgment‑debtor can be entertained by executing Court even before the physical dispossession from the property.

7. In another case reported as Malik Muhammad Shari v. Muhammad Saleem PLD 1982 Lahore 702, an order was passed by the Rent Controller on an application for ejectment. The said order was challenged by the petitioner by filing a civil suit on the ground that the decree was obtained by fraud. The plaint was, however, rejected by the Civil Judge, holding that the suit was barred by subsection (2) of section 12 of the Code of Civil Procedure and Order XXI, rule 103 of the said Code. An appeal was, therefore, taken by the petitioner to an Additional District Judge, but without success. He, therefore, filed a revision application in the High Court. The High Court held the plaint of the suit brought by the petitioner to have been rightly rejected under rule 103 of Order XXI of the C.P.C. Accordingly, the revision application was dismissed in limine, observing that:‑ by virtue of the provisions of section 17 of the said Ordinance, he will be deemed to be a Court and the order of ejectment, the person in whose favour it was made and the person against whom it was passed would be deemed to be decree, holder of a decree and "judgment‑debtor" respectively for the purpose of the provisions of Order XXI. Since in the instant case the petitioner is not the judgment‑debtor (person against whom the ejectment order was made) and he claims to be the owner of the property in question, which is an immovable property, he can, according to rule 100 of Order XXI, make an application to the Rent Controller for restoration of its possession and if he succeeds in establishing that he was in possession of the disputed property on his own account when he was dispossessed therefrom, the learned Rent Controller would be able to order restoration of possession under rule 101 of Order XXI.. It has been laid down in rule 103 of Order XXI that all questions arising as to the title, right or interest in, or possession of immovable property between an applicant under rule 100 and the opposite‑party shall be adjudicated upon and determined by the Court executing the decree and no separate suit shall lie for determination of any such matter. In view of section 17 of the said Ordinance read with rules 100, 101 and 103 of Order XXI of the Code of Civil Procedure, therefore, what the petitioner seeks to achieve by means of the suit brought by him can be awarded by the learned Rent Controller, who has executed the order of ejectment, on his (petitioner's) making an application to him (Rent Controller) and thus the suit filed by him was barred."

8. There is yet another case reported as Aijaz Ahmed Zubairi v. The Xth Civil Judge and Rent Controller, Karachi and 4 others 1984 CLC 3445. A Division Bench of this Court while reproducing the following observations of the Hon'ble Supreme Court (from 1982 SCMR 90) that; "It follows consistently from these decisions of this Court that an executing Court has the power to entertain and adjudicate an objection petition filed by persons not claiming through the judgment‑debtor, even before their physical dispossession from the property", declared the judgment of the Civil Court as void, on an application filed by the respondent for a declaration that an order dated 16th May, 1979 passed by the learned Rent Controller was illegal and also for restraining the petitioner from executing the order.

9. On the basis of the Supreme Court authority it seems to have been rightly argued by the learned counsel for the respondent that even before the order of attachment of the property, objections filed by the appellant were entertainable. In any case, if the order passed in the execution proceedings was wrong, the appellant had the remedy to file an appeal under Order 43, Rule 1 (ii), C.P.C. as an order passed by an executing Court on application under Order XXI, rule 62 has been held to be appealable. We are in agreement with the submission of the counsel for the respondent and are of the view that the words 'property attached' used in rule 62 of the Order XXI, C.P.C. include 'sought to be attached', as the word 'attached' is primarily meant for the purpose of identification of the property. In this connection, it is noticeable that under Rule 58 and 103, the words 'property attached' have been used as is the case with Rule 62, and the decisions of the Courts, as also referred to above, denote that the objections are entertainable before the property was attached. It also does not appeal to reason that the objector should wait till the property is attached and then to file his objections to it. The notice issued in the case in execution meant to show cause if there was any objection to the attachment.

10. We are clear in our mind that a suit under rule 63 was meant for purpose of establishing right claimed in the enquiry under rule 58, i.e. the liability or non liability of the property to be attached, which has now been done away with by omitting the same and bringing in rule 62, expressly barring a suit in respect of which an enquiry is to be made in execution proceeding on the application or objections filed by claimant who was not party to the suit in which decree has been passed and is sought to be executed. Such right may be asserted in resistance to the property being attached or sold and no separate suit being maintainable for the same, as specifically barred by rule 62 of Order XXI of Civil Procedure Code.

11. For the abovesaid reasons, the appeal is dismissed but, in the circumstance that the respondent's plea as to maintainability of objections under rule 62 of Order XXI, C.P.C. on the question of attachment of property being inconsistent, rather, juxtaposite to each other, there will be no order as to costs.

12. Before parting with the case, we would like to observe that looking from moral point of view to take two inconsistent legal pleas, in juxtaposition to each other, in two proceedings pertaining to the same subject‑matter by the, same counsel, as seen in the above case, to say the least; is not desirable. A.A./H‑140/K. Appeal dismissed.