Attachment of property

Appellant was aggrieved of order passed by Ombudsman attaching and sealing entire disputed property till the decision of complaint

Validity

There was an apparent disparity between Ss. 4 & 7 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019

Woman who was deprived of her ownership or possession of property could file a complaint under S. 4 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 to Ombudsperson if no proceedings in a court of law were pending regarding the property

Whereas in S. 7 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019, the Ombudsperson was given authority to entertain a complaint in respect of any dispute relating to property right of woman despite pendency of claim before competent court of law

Ombudsperson was authorized to conduct enquiry, investigation and probe through Deputy Commissioner and could conduct a summary enquiry

After conclusion of such enquiry, Ombudsperson could file a report in Court of law in which the case was already pending, recommending that the proceedings in Court could be terminated or put in abeyance unconditionally or subject to any Court order the Ombudsman be permitted by the Court to take further proceedings under the Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019

High Court referred the matter to Provincial Government for appropriate measures in the matter

Appeal was disposed of accordingly.

Subsequently, the immovable property of the petitioner mentioned in the surety bond was attached and put to auction for non-satisfaction of the decree

Objection petition filed by the petitioner was dismissed by the Executing and Appellate courts

Held: The Special Attorney on behalf of judgment debtor was neither impleaded as defendant in the suit nor the suit was decreed against him rather he appeared in the Court only in the capacity of Special Attorney on behalf of judgment-debtor

In absence of any decree against the Special Attorney or specific clause to this effect in Special Power-of-Attorney, the Executing Court could satisfy the decree only against judgment debtor but not against Special Attorney, who never appeared in suit in his personal capacity but only as Special Attorney of the judgment-debtor

In these circumstances, order for arrest of Special Attorney and sending him to civil prison for execution of decree was not warranted in law

Consequently, the surety bond by petitioner for release of Special Attorney was also neither required nor enforceable

No doubt the judgment debtor was bound to satisfy the decree either himself or through the attorney, however, in the present case it was not shown from the Special Power of Attorney that judgment debtor required Special Attorney to burden the liability for satisfaction of decree

There was no doubt that Special Attorney was not liable for execution of decree, consequently, the surety bond executed by petitioner for release of Special Attorney could not be made basis to attach his immoveable property for satisfaction of decree

Though the surety bond was also on behalf of judgment debtor besides the Special Attorney, however, when petitioner was not required in first place to execute the surety bond for release of Special Attorney, then whole superstructure on the basis of illegal detention order would crumble down and petitioner's property could not be auctioned merely because he mentioned the name of judgment debtor in his surety bond, which was not required to be executed in the first instance

Writ petition was allowed.

Attachment of property, under S. 9(5) of Anti-Money Laundering Act, 2010, ceases to have effect if on conclusion of trial of both the offences of money laundering and predicate offence the person concerned is acquitted.

Attachment of property, under S. 9(5) of Anti-Money Laundering Act, 2010, ceases to have effect if on conclusion of trial of both the offences of money laundering and predicate offence the person concerned is acquitted.

Attachment of property, under S. 9(5) of Anti-Money Laundering Act, 2010, ceases to have effect if on conclusion of trial of both the offences of money laundering and predicate offence the person concerned is acquitted.

Court issuing proclamation under S. 87, Cr.P.C., may at any time order attachment under S. 88, Cr.P.C., of any property movable or immovable or both belonging to proclaimed offender.

Suit filed by Bank was decreed and judgment debtor resisted execution of decree on grounds that property in question through inheritance from her husband which property could not be put to auction

Validity

Judgment debtor was trying to frustrate entire execution proceedings and any indulgence at such stage of proceedings could amount to frustrate implementation of decree which otherwise had attained finality

Interference, at such stage, could tantamount to interference in already decided matter which culminated by dismissal of objection petition filed by husband of judgment debtor

Claim of judgment debtor that transfer of property in her name through inheritance of her husband gave her fresh cause of action was without any basis and legal justification

Judgment debtor had stepped into shoes of her husband and could not claim better title or rights in property than her husband and such claim, being without any merit was repelled

High Court declined to interfere in order passed by Trial Court as judgment debtor had failed to point out any illegality, perversity or erroneous exercise of jurisdiction

Appeal was dismissed, in circumstances.

Suit filed by Bank was decreed and judgment-debtor resisted execution of decree on grounds that property in question through inheritance from her husband which property could not be put to auction

Validity

Judgment-debtor was trying to frustrate entire execution proceedings and any indulgence at such stage of proceedings could amount to frustrate implementation of decree which otherwise had attained finality

Interference, at such stage could tantamount to interference in already decided matter which culminated by dismissal of objection petition filed by husband of judgment-debtor

Claim of judgment-debtor that transfer of property in her name through inheritance of her husband gave her fresh cause of action was without any basis and legal justification

Judgment-debtor had stepped into shoes of her husband and could not claim better title or rights in property than her husband and such claim, being without any merit was repelled

High Court declined to interfere in order passed by Trial Court as judgment-debtor had failed to point out any illegality, perversity or erroneous exercise of jurisdiction

Appeal was dismissed, in circumstances.

Plaintiff filed application for appointment of receiver and attachment of property before judgment regarding suit property

Applications were allowed by Trial Court and order was maintained by Lower Appellate Court

Validity

Trial Court could not to appoint receiver so as to oust defendants from use, command and control, particularly when plaintiff had already assessed his reparable loss in terms of specific amount

Relief granted under order XXXVIII, R.5, C.P.C. or O.XXXIX, Rr.1 & 2, C.P.C. bore a similar analogy to that of appointment of receiver

O. XXXVIII, R.5, C.P.C. or O.XXXIX, Rr. 1 & 2, C.P.C. were essentially preventive in nature having common object insofar as they required to preserve subject matter till final disposal of lis

Receiver had no independent title to property thus it was sine qua non for court to ensure rights of owners of subject property

Though, in the present case, there were concurrent findings and court exercised restraint while interfering with such conclusion especially in Constitutional jurisdiction but such by itself was not rule of thumb

Any illegality or perversity in proceedings of court below offending rights of litigants neither could be protected nor perpetuated

Court could not shut its eyes only for reasons that unanimous orders were under challenge before it despite being illegal

High Court set aside orders passed by two courts below as appointment of receiver was passed without reasoning and lawful authority and was not liable to sustain

Constitutional petition was allowed in circumstances.

Plaintiff filed application under O.XXXIX, R.2(3), C.P.C. and Trial Court attached the disputed property but Revisional Court set aside the said order of attachment of property

Validity

Court while granting an injunction might order the property of a person guilty of such disobedience or breach to be attached and might order such person to be detained in the prison for a term not exceeding six months

Temporary injunction was granted in favour of plaintiff but defendants continued their construction

Order passed while entertaining an application under O.XXXIX, R.2(3), C.P.C. was an appealable order

Defendants filed revision petition against the order passed by the Trial Court which was not competent

No revision would lie where an appeal lay

Revision could only be converted into appeal when there was a specific application moved for the purpose

No such application was moved by the defendants in the present case

Revisional Court could not convert said revision into appeal as no notice under O.XXXIX, R.3, C.P.C. was given by the defendants which was a mandatory requirement

Revisional Court had wrongly entertained the revision in circumstances

Demarcation through local commission was yet to be finalized and report was to be considered by the Trial Court

Trial Court was perfect court to pass an appropriate order after examining the local commission report and of any objections if so filed by the parties

Impugned order passed by the Revisional Court was declared as illegal, without jurisdiction and premature which was set aside

Order passed by the Trial Court was restored

Constitutional petition was allowed in circumstances.

Jurisdiction of Civil Court as envisaged in S.9, C.P.C. had to be construed strictly and if it was found that government officials or authorities mentioned under particular statute, which was invoking statutory bar, had not acted fairly, justly and reasonably, then such bar could not be pressed into service

Procedure mentioned in S. 93 of Income Tax Ordinance, 1979, was never adhered to by income tax officials while passing attachment order in respect of suit property

Attachment order in respect of suit property was without any legal justification and was liable to be set at naught

High Court declared that suit property was owned by plaintiff company and income tax authorities illegally, wrongfully and by excessive use of power and authority had attached suit property

High Court directed government to initiate disciplinary proceedings against Income Tax officials forthwith and all officials were liable to pay damages to plaintiff company

Suit was decreed in circumstances.

If the material is not sufficient then property cannot be attached though Magistrate may hold an inquiry.

Jurisdiction of Civil Court as envisaged in S. 9, C.P.C. had to be construed strictly and if it was found that government officials or authorities mentioned under particular statute, which was invoking statutory bar, had not acted fairly, justly and reasonably, then such bar could not be pressed into service

Procedure mentioned in S. 93 of Income Tax Ordinance, 1979, was never adhered to by income tax officials while passing attachment order in respect of suit property

Attachment order in respect of suit property was without any legal justification and was liable to be set at naught

High Court declared that suit property was owned by plaintiff company and income tax authorities illegally, wrongfully and by excessive use of power and authority had attached suit property

High Court directed government to initiate disciplinary proceedings against income tax officials forthwith and all officials were liable to pay damages to plaintiff company

Suit was decreed in circumstances.

Contention of decree-holder Bank was that the property sought to be attached by Bank had been gifted/transferred by the judgment-debtor to his wife in order to defraud the decree-holder; therefore, he was liable to be arrested/detained per provisions of S.51, C.P.C.

Held, that property in question, at present, was not in the name of the judgment-debtor but the same was gifted/transferred by the judgment-debtor to his wife prior to the filing of the suit for recovery by the decree-holder Bank

Executing Court could not exercise powers under S.51, C.P.C. as the decree-holder had not been able to show any material whereby it could be said that the property in question was dishonestly transferred, gifted, and/or alienated by the judgment-debtor

Gift deed and the lease documents or the veracity of the same had not been challenged or dislodged independently nor the credibility and the authority of such documents had been disputed, which were legally executed

No case had been made out by the decree-holder whereby an order could be passed for the detention of the judgment-debtor, neither could the property in question be attached

Application under S.19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was dismissed, in circumstances.

Petitioner moved an application that property in question was owned by him but same was dismissed by the Executing Court

Validity

Order with regard to attachment of property had attained finality

Application filed by the petitioner to become party in the execution proceedings was rightly dismissed; he had not challenged any of the orders before the forum provided under the law

Petitioner had deposited the decretal amount when executing court was about to issue proclamation and thereafter challenged the order of deposit which was voluntarily made by him before the Executing Court

No good cause for interference with the order of executing court, by High Court had been made out

Petitioner had failed to give any plausible explanation for skipping the forum to challenge such orders and directly approaching the High Court

Constitutional petition was dismissed in circumstances.

Wife of proclaimed offender filed objection on the plea that property in question had been given to her as dower but Trial Court dismissed the objection

Validity

Wife of proclaimed offender filed objection petition to the effect that property in question had been given to her by her husband, hence she had interest in the property and as such it could not be sold

Wife of proclaimed offender also instituted suit before Family Court, which had been decreed, therefore, objection was not ignorable and needed consideration

High Court set aside the order and remanded the matter to Trial Court for decision afresh on objection petition filed by wife of proclaimed offender

Revision was allowed accordingly.

Powers vested in civil court under O.XL, C.P.C., were much wider and comprehensive than that of Magistrate under S.145, Cr.P.C.

Accused petitioner had been declared proclaimed offender in the case by Trial Court and his agricultural land measuring four Kanals had been attached under S.88, Cr.P.C.

Petitioner's application for the release of his attached property had been dismissed by Trial Court, vide impugned order

Object of attachment of property under S.88, Cr.P.C. is to procure attendance of accused and this object had already been achieved

Property of the petitioner was simply attached and no further proceedings had been conducted so far

Petitioner had appeared before Trial Court within seven days of declaring him as proclaimed offender, then there was no legal justification for keeping his property under attachment for an indefinite period

Impugned order was not in accordance with law and the same was set aside

Property of accused was released accordingly by accepting the petition.