Execution of decree

Respondent / tenant claimed to be director of the company who had participated in auction and since he was the highest bidder therefore, he was not under any obligation to pay rent until and unless his bid was refused conclusively by High Court where appeal was pending

Validity

It may not be fair to comment as to whether respondent / tenant was under obligation or not to pay rent on account of pendency of appeal as the relationship was yet to be decided by Rent Controller

Courts below in fact had misdirected themselves when they got influenced by an order of status quo which order under no circumstances could influence rent proceedings which were independent in nature as governed by Special Law and were to be taken to its logical end, as required under the law, until and unless a title was bestowed upon respondent / tenant by a Court of competent jurisdiction

Supreme Court set aside the orders and remanded the matter to Rent Controller where ejectment petition was deemed to be pending

Supreme Court directed that Rent Controller, was under an obligation to decide applications for leave to appear and defend first and thereafter issue of relationship between the petitioner / landlord and respondent / tenant be decided, irrespective of pendency of appeal, where auction proceedings were pending

Appeal was disposed of.

No evidence was led by petitioners / judgment-debtors before Executing Court therefore, they could not set up a new case at the stage of execution

No such situation of nullity or in-executability of any severable part was demonstrated; instead, the Executing Court embarked upon a fresh inquiry into title on collateral revenue papers

Since the decree stood, therefore, execution must proceed to the extent of it recognizing respondent / decree holder's entitlement in the estate of deceased and nothing more

High Court's intervention merely restored such legal boundaries rather than reappraising the evidence which was already brought on record before Trial Court

Executing Court exceeded from its limit by calling for revenue record, and effectively sitting in appeal over the judgment and decree

In execution proceedings matters which had attained finality could not be re-opened or re-adjudicated

Judgment passed by High Court was well-reasoned, based on proper appreciation of facts and law

Supreme Court declined to interfere in judgment passed by High Court, as petitioners / judgment debtors failed to point out any illegality, perversity, or misreading and non-reading of evidence in judgment passed by High Court

High Court rightly set aside orders of Executing Court as well as Lower Appellate Court

Petition for leave to appeal was dismissed and leave to appeal was refused.

Briefly, a suit for specific performance of an agreement to sell was instituted by the respondent/plaintiff against the vendor (mother of the petitioners), which was decreed, subject to payment of the remaining sale consideration

The appeal against the decree was dismissed for non-prosecution, and the restoration application was also dismissed

Thereafter, the decree-holder filed an execution petition

Objections to execution were filed by the judgment-debtors which were dismissed, and the appeal against that order was also dismissed

The matter before the High Court in present civil revision petition concerned "whether the execution petition was barred by limitation and whether the objections to execution had been rightly dismissed by the courts below?"

Held: There was no specific Article of Limitation Act, 1908 which regulated the filing of execution petition in the matter of decree for specific performance or a preemption matter and the residuary Art.181 of the said Act applied which provided a period of three years from the date when the right to apply accrued and if decree holder was in possession of property having paid or deposited the sale price he would not have been required to file execution petition and right to apply in the matter would have arisen had the judgment debtor refused to perform his part

In the present case the findings of the Trial Court were to the effect that the decree-holder was in possession of the property and had paid the earnest money while the balance sale price was deposited in terms of the decree of the court, as such, respondent No.1 could legally proceed with the execution of decree

As to the objection viz. balance sale consideration not being deposited in court within time, it was observed that decree was silent and did not stipulate the period during which balance sale consideration was to be deposited and, therefore, respondent could not suffer due to act or fault of court which passed the decree and that the respondent having deposited the amount on vacation of injunctive order passed in appeal, could not be made to suffer adversely

Even otherwise the Executing Court had to execute the decree as it was and could not question validity of the same on the ground which could have been raised in appeal against the decree

Another factor in the present case was that the suit was decreed on 10.12.2012 against which an appeal was filed on 02.1.2013 and on 02.1.2013 status quo was ordered to be maintained with the result that execution petition could not be filed and that the appeal was dismissed for non-prosecution

On 29.4.2016 an application for restoration was filed which also remained pending for a considerable time and thereafter same was dismissed on 01.3.2017, while the execution petition was filed on 28.2.2020 which was within three years from the date of actual date of termination of proceedings

Impugned order was just, fair and legal and called for no interference

Civil revision petition was dismissed, in circumstances.

Compliant with Article 166 of First Schedule to the Limitation Act, 1908, only thirty days' time was provided for making any application for setting aside a sale in execution of decree, including any such application filed by judgment debtor

Petitioners filed their objection petition to sale after more than three years, and thus, the same was time barred

Supreme Court declined to interfere in order passed by High Court as there was no illegality in it

Petition for leave to appeal was dismissed and leave was refused.

Executing Court repeatedly directed appellant / judgment debtor to deposit decretal amount in installments but it was all in vain

Executing Court ordered auction of mortgaged property of appellant / judgment debtor

Validity

Decree of Court is mere declaration of right unless through the process of execution such determination is transformed into actual realization

Without execution, a decree is an expression of recognition of right of relief

When decree gets executed through the process of law, it then culminates into attainment of dispensation of justice in actual and palpable terms

When decree is executed successfully, it is called satisfaction of decree

High Court declined to interfere in execution proceedings

Appeal was dismissed, in circumstances.

While provision of O. XXI, R. 23-A, C.P.C. essentially states that if a judgment debtor wants to raise objection against execution of a decree, he must first deposit decretal amount in Court or provide security for its payment before his objections can be considered, meaning they cannot simply object without first providing financial assurance to Court

Provision of O. XXI, R. 23-A, C.P.C. applies when a judgment debtor wishes to dispute execution of a decree against him

High Court declined to interfere in execution proceedings

Appeal was dismissed, in circumstances.

Executing court cannot go beyond the decree and must execute it in its letter and spirit.

Executing court cannot go beyond the decree and must execute it in its letter and spirit.

Petitioner repeatedly changed his stance, firstly, he objected to conduct of auction and secondly, he made request to treat his application as under O. XXI, R. 89, C.P.C.

Petitioner once again resiled from the same and raised challenge to terms of auction

Such frequent shifts and developments were hit by principle of approbate and reprobate

Petitioner could not be permitted to adopt one stance and to resile from the same before fora below and then to file Constitutional petition before High Court permitting him once again to take a somersault

Petitioner did not make any request for permission to deposit any amount under O. XXI, R. 89, C.P.C. and even time period provided by law had elapsed

Constitutional petition was filed much after the period for filing an appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Limitation period was prescribed by Financial Institutions (Recovery of Finances) Ordinance, 2001, which was a special law to which provisions of S. 5 of Limitation Act, 1908 were not applicable

Petitioner did not make any request nor application to condone the delay was made

No question had arisen to convert Constitutional petition into appeal

High Court declined to interfere in the orders passed by Banking Court which were in consonance with law

Constitutional petition was dismissed, in circumstances.

The vested/third party rights accrue in favour of a bidder when the auction-sale become complete i.e. when the court confirms the auction sale

However, such vested rights are defeatable and would not take away the right of the mortgagor/judgment debtor to redeem his property if he brings his case within the parameters of Order XII, Rule 89, 91 or 91 of C.P.C.

However, position of the auction purchaser is different when the court confirms the auction sale in favour of the auction purchaser

Once sale has been effected, a third party interest intervenes which cannot be disregarded.

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.

Plea raised by appellant / judgment debtor was that sale price was neither supported by any independent evaluation or any offer of any prospective buyer, whereas inspite of repeated attempts none come forward to offer any bid whatsoever for subject mill

Validity

Court sale is a forced sale and contains certain elements of risk with a chance of litigation and for such reasons properties auctioned by Court do not usually fetch reasonable price as per market value, which it otherwise could fetch between two private persons

In respect of sale by Court there is no straight jacket formula for determination of sale price

Relevant laws of execution of decree provide maximum opportunities to mortgagor to redeem property and discourage any clog against equity of redemption but do not provide undue favour to prolong execution or auction proceedings on flimsy grounds to a chronic defaulter who fails to make payment of admitted liability pursuant to compromise decree inspite of long period of time provided by Court

Once auction is conducted successfully the auctioneer's report must be taken up in Court for orders at the earliest, if not on the next day accepting or rejecting the sale

In the present case sale was confirmed after adopting all required legal formalities as provided under O. XXI C.P.C. and relevant rules

High Court declined to interfere in auction proceedings as there was no illegality, infirmity, misreading or non-reading of facts by Executing Court

Appeal was dismissed in circumstances.

Plaintiffs filed a suit challenging the action of the defendant (Karachi Development Authority/KDA) cancelling the plots allotted to them (plaintiffs), which suit was decreed as prayed for and was maintained upto High Court

Later, the Executing Court declined the plea of execution petitioners (Plaintiffs/decree-holders) for restoration of possession in respect of the suit-property

Only factor which weighed with the Executing Court for disallowing the prayer of possession of the petitioners, was that specific plea of possession was not sought in the suit, and the Executing Court cannot go beyond the decree

Revisional Court maintained the said order

Validity

High Court being a court of record with powers of supervision and correction of the orders passed by the inferior Courts cannot be said to be helpless in appropriate cases to pass such orders in order to do substantial justice and advance the cause of justice

In the present case, both the Courts had failed to observe or consider that the petitioners/plaintiffs were successful throughout in their prolonged and exhausting litigation spreading over three decades with the respondent/KDA, up to this (High) Court

Judgment and decree was handed down after a full dress trial, which had its own value, giving birth to right and interest in favour of decree holders

In such circumstances, if the relief of possession would have been given, it could not be said that the Executing Court had travelled beyond the judgment and decree

Secondly, in terms of S. 47 of the Civil Procedure Code, 1908 , an Executing Court is empowered to decide all questions relating to the execution

Thirdly, an implied objective of law is to ensure an orderly behaviour in a society and if on one hand some act is left unattended on the basis of certain technicalities and on the other hand a victim of wrongful act is left to run from pillar to post, then in due course of time, an orderly system of a society would be diminished and will be replaced by a disorderly and intolerant behaviour as well as lawlessness

High Court set-aside both impugned decisions passed by Revisional/District Court as well as Executing Court, and directed the respondents (Karachi Development Authority) to handover the peaceful physical possession of the subject-property forthwith to the petitioners

Constitutional petition was allowed accordingly.

Plaintiffs filed a suit challenging the action of the defendant (Karachi Development Authority/KDA) cancelling the plots allotted to them (plaintiffs), which suit was decreed as prayed for, and said decree was maintained upto High Court

Later, the Executing Court declined the plea of execution petitioners (plaintiffs/decree-holders) for restoration of possession in respect of the suit-property

Only reason/factor weighed with the Executing Court for disallowing the prayer of possession of the petitioners, was that specific plea of possession was not sought in the suit, and Executing Court could not go beyond the decree

Revisional Court maintained the said order

Validity

Since valuable rights and interest had accrued to the petitioners and rights being proprietary rights were protected by the Art. 24 of the Constitution thus, the relief of possession should have been granted by the Courts below which had not properly exercised the jurisdiction vested in them, resulting in hardship and injustice to the petitioners, which could be corrected in the constitutional jurisdiction

High Court set-aside both impugned decisions passed by Revisional/District Court as well as Executing Court and directed the respondents (Karachi Development Authority) to handover the peaceful physical possession of the subject-property forthwith to the petitioners

Constitutional petition, was allowed accordingly.

Petitioner (one of the legal heirs) filed objections on the report submitted by the Court Auctioneer, but the same was dismissed on account of petitioner's failure to deposit the 20% (twenty percent) of the sum realized at the sale

Petitioner preferred an appeal against the said order before the High Court which also met the fate of dismissal

Plea of petitioner was that his objection application was made under Order XXI, Rule 84 of the Code of Civil Procedure, 1908 ("C.P.C.") but it was decided within the limits of Order XXI, Rule 90

Validity

Such plea of petitioner was not tenable in eyes of law

It is clear from a bare reading of Order XXI, Rule 84, C.P.C. that the purchaser is required by law to immediately pay twenty-five percent of purchase money and there is no word that suggests objections to auction proceedings may be filed by the owner/legal heirs of the owner of the subject property under this rule

Moreover, petitioner in this case, was not a purchaser but his predecessors in interest were the owner of the subject property, hence, he could not have invoked Order XXI, Rule 84, C.P.C.

Trial Court deemed the objections filed by petitioner as an application under Order XXI, Rule 90, C.P.C.

Trial Court directed the petitioner to deposit twenty percent of the sale proceeds but he failed to do so

Neither he made any application for an extension of time nor showed any willingness to deposit such an amount

Trial Court has rightly observed that there had been an inordinate delay in the execution of the decree and six years had already elapsed

Petition was dismissed and leave to appeal was refused.

Sale may be set aside on the grounds of material irregularity or fraud under Order XXI, Rule 90, C.P.C. wherein the applicant has to establish substantial injury sustained by him owing to such material irregularity or fraud in the sale by public auction

Additionally, applicant has to comply with the second proviso to this rule by depositing twenty percent of the sum realized at the sale

Rationale behind the second proviso is to discourage frivolous objections frustrating the execution of the decree.

Condition stipulated in the second proviso for entertaining the application ensures that the rule is not misused to delay the completion of the sale and expeditious conclusion of the execution proceedings, and that the objections are made only by bona fide persons on valid grounds

If upon adjudication the application is found frivolous, the amount deposited or the security furnished, as the case may be, by the applicant is to be appropriated for awarding costs to the person(s) who suffer from the delay in completing the sale due to the filing of the application

Therefore, in determining the amount required to be deposited, the executing court should consider various factors such as the decretal amount, the time elapsed since filing the execution petition, the sale amount and the applicant's previous conduct, etc., and fix an amount reflective of the costs likely to be awarded to the affected party in case of dismissal of the application.

Effect of clauses (a) and (b) of Section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance 2001 ("Ordinance") on the provisions of Rule 90 of Order XXI, C.P.C., particularly the second proviso thereof

Clauses (a) and (b) of Section 19(7) of the Ordinance are not comprehensive provisions regarding objections to the sale of property in the execution of a decree; they do not specify who can make objections or the grounds on which objections can be made

Therefore, these clauses cannot function independently of Rule 90 of Order XXI, C.P.C., regarding objections to the sale of property in the execution of a decree

It is worth noting that since Section 141, C.P.C., does not apply to applications under Rule 90 of Order XXI, C.P.C., 11 the procedure for investigating objections made under this rule is also summary, as provided in clause (a) of Section 19(7) of the Ordinance

Latter provision merely further prescribes a period of 30 days to complete the investigation of objections through a summary procedure

Clause (b) of Section 19(7) of the Ordinance provides for imposing a penalty of up to twenty percent of the sale price of the property if objections are found by the Banking Court to be malafide or aimed at delaying the sale of the property

This penalty amount, is to be deposited by the applicant, or its security furnished, as per the second proviso to Rule 90 of Order XXI, C.P.C., before the court entertains the application to set aside the sale

Thus, there is no conflict between the two provisions; clauses (a) and (b) of Section 19(7) of the Ordinance are only complementary to the provisions of Rule 90 of Order XXI, C.P.C., for the execution of decrees under the Ordinance

Banking Court is therefore bound to follow both the provisions in the matter of objections made to the sale of property in the execution of a decree.

Deposit of the amount, which is required under the second proviso, is not to be made by the applicant along with the application but rather it is to be made on the direction of the court.

Deposit of the amount, which is required under the second proviso, is not to be made by the applicant along with the application but rather it is to be made on the direction of the court.

Condition stipulated in the second proviso for entertaining the application ensures that the rule is not misused to delay the completion of the sale and expeditious conclusion of the execution proceedings, and that the objections are made only by bona fide persons on valid grounds

If upon adjudication the application is found frivolous, the amount deposited or the security furnished, as the case may be, by the applicant is to be appropriated for awarding costs to the person(s) who suffer from the delay in completing the sale due to the filing of the application

Therefore, in determining the amount required to be deposited, the executing court should consider various factors such as the decretal amount, the time elapsed since filing the execution petition, the sale amount and the applicant's previous conduct, etc., and fix an amount reflective of the costs likely to be awarded to the affected party in case of dismissal of the application.

Effect of clauses (a) and (b) of Section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance 2001 ("Ordinance") on the provisions of Rule 90 of Order XXI, C.P.C., particularly the second proviso thereof

Clauses (a) and (b) of Section 19(7) of the Ordinance are not comprehensive provisions regarding objections to the sale of property in the execution of a decree; they do not specify who can make objections or the grounds on which objections can be made

Therefore, these clauses cannot function independently of Rule 90 of Order XXI, C.P.C., regarding objections to the sale of property in the execution of a decree

It is worth noting that since Section 141, C.P.C., does not apply to applications under Rule 90 of Order XXI, C.P.C., 11 the procedure for investigating objections made under this rule is also summary, as provided in clause (a) of Section 19(7) of the Ordinance

Latter provision merely further prescribes a period of 30 days to complete the investigation of objections through a summary procedure

Clause (b) of Section 19(7) of the Ordinance provides for imposing a penalty of up to twenty percent of the sale price of the property if objections are found by the Banking Court to be malafide or aimed at delaying the sale of the property

This penalty amount, is to be deposited by the applicant, or its security furnished, as per the second proviso to Rule 90 of Order XXI, C.P.C., before the court entertains the application to set aside the sale

Thus, there is no conflict between the two provisions; clauses (a) and (b) of Section 19(7) of the Ordinance are only complementary to the provisions of Rule 90 of Order XXI, C.P.C., for the execution of decrees under the Ordinance

Banking Court is therefore bound to follow both the provisions in the matter of objections made to the sale of property in the execution of a decree.

Plea raised by petitioners was that in view of principle of res judicata, second execution proceedings were not maintainable

Validity

Respondent filed execution application and sought execution of order and decree, whereas first execution application had already been disposed of and no one from contesting parties had challenged the same before higher forum and that order took finality

Respondent's execution application had come under the purview of res judicata

Doctrine of res judicata is a well-settled rule in nearly all judicial systems, which empowers the Court to put at rest the litigation at some terminating point

Provision of S.11, C.P.C., embodies such rule of conclusiveness of judgment

Principle of res judicata enacts that once a matter is finally decided by competent Court, no party can be permitted to reopen it in subsequent litigation

To bring an end to litigation and to save parties from constant troubles, harassment and expenses, the rule of res judicata was made in Civil Procedure Code, 1908

To bring finality of judgment, such rule is applied, which is a rule of universal application and almost in every civilized legal system, this rule is being followed

Concept of res judicata evolved from common law system and it rests on the overriding concept of judicial economy, consistency and finality of a civil action

It has roots in Roman law also where a defendant could successfully contest a suit under the plea of excaptio res judicata, meaning that "one suit and one decision is enough for any single dispute"

Doctrine of res judicata is conceived in general interest of public policy, which requires that all litigation must come to an end at a point of time

Principle of res judicata is also founded on justice, equity and good conscience, which requires that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving same issue

High Court in exercise of revisional jurisdiction dismissed execution proceedings filed by respondent and order passed by Lower Appellate Court was set aside

Revision was allowed accordingly.

Plaintiffs instituted suit primarily against a defendant alleging that he used forged power of attorney qua suit-property ('real defendant') while the petitioner was one of those defendants upon whom some of the area/ownership regarding suit-property had been transferred

Case among the parties was finally disposed of by the Supreme Court on the basis of the statement of the plaintiff/decree-holder that they, from the suit-property, would be entitled to the extent of only 01-Kanal 01-Marla left by the deceased (original-owner)

Before the Executing Court, the petitioner filed an application for clarification of warrant of possession(proper measurement and determination of shares) in wake of the said statement of the decree-holder

Executing Court dismissed said application, which order was maintained by the Appellate Court

Contention of the petitioner was that order of the Executing Court for handing over possession without proper measurement and determination of shares of all the parties would not only be against the spirit of decree but was also exercise of power not so vested in it (Executing Court)

Validity

Record revealed that the deceased was indisputably the owner of 01-Kanal and 01-Marla comprising in two Khasra Numbers (No. 5753 and 5760), but the third Khasra No. 5754 ('disputed/third Khasra') was made disputed (and remained root-cause of the litigation among the parties and though High Court did not want to comment upon the legal aspect of the case, since it had already been decided), however, for the purpose of execution, Executing Court would have to consider as to whether all the three Khasra numbers were contiguous to each other and if so in which particular Khasra number or numbers disputed house was constructed

It was because during the trial of the case a document , prepared by one Bailiff of the Court, was duly exhibited, while another Bailiff of the Court was also directed by the Trial Court to proceed to the spot and submit his report

Said report as well as exhibited document showed total area of the constructed house as 8190 square feet equal to 30.110 Marla whereas the total shares of the deceased in the house were 01-Kanal and 01-Marla

Once a statement was given on the basis of which the Supreme Court disposed of matter the decree-holders had restricted their rights to the extent of specific portion, i.e., 01-Kanal and 01-Marla and now neither they could claim more than that nor could retain it

Irrespective of the fact that real defendant or for that matter the petitioner or anyone else was in possession of the house and whatever might be his status, the decree-holder would get executed the decree to the extent of 01-Kanal and 01-Marla

Determination of said particular aspects i.e., the location of the house and handing over the possession was a question which was required to be decided by the Executing Court

No doubt Executing Court could not go beyond the scope of decree which did not mean that Executing Court was to exercise its powers as per whims, wishes and desire of any person/party

Section 47 and O. XXI, R. 103 of the Code of Civil Procedure, 1908, on one hand had put a embargo to file a fresh suit against the lis already decided but on the other hand had provided a vast power to the Executing Court not only for the decree-holders but also for the person who had got any right in the subject matter of the decreed property

Both the Courts below committed an illegality, without determining the specific location of the house, the determination of the share of decree holder, i.e., 01-Kanals and 01-Marla, the co-sharer ship of real defendant in disputed Khasra, and to determine as to whether the petitioner was co-sharer in the decreed house, which he had purchased from the real defendant

High Court directed the Executing Court to determine the proper location of the house i.e., the contiguity of three Khasra Numbers and then to determine whether any portion of the house was in disputed Khasra Number and in such an eventuality the provision of O. XXI, R. 35, Sub Rule 2 of the Code of Civil Procedure, 1908, would obviously come into play; similarly, if the house was constructed in two Khasra numbers then the decree holder would retain the possession of 01-Kanal 01-Marla and the rest of the possession shall be restored to the person from whom it was taken in consonance with O. XXI, Rr. 100 & 101, C.P.C. in juxtaposition with the statement of decree holders recorded before the Supreme Court

Said questions were to be dealt by the Executing Court within the purview of S. 47 of the Civil Procedure Code, 1908

High Court set-aside the impugned orders and judgments passed by both the Courts below and remanded the matter to the Executing Court

Revision was disposed of accordingly.

Dispute was with regard to transfer of proceedings from one District to another to execute decree passed by Family Court

Held, that Family Courts Act, 1964 is silent on the subject but in such circumstances Executing Court may take recourse to the provisions of C.P.C.

Execution proceedings can be transferred by the Family Court and can well be executed by the Transferee Court under the relevant provisions of C.P.C. (regulating such proceedings for transferred execution petitions)

Procedure of C.P.C. shall be borrowed and accordingly an alternate mechanism would be deemed to be provided not only for transfer of the decree but also for regulating the proceedings of such transferred execution petitions

High Court directed the appellant to move respective Executing Court for transfer of execution proceedings/ petition

Constitutional petition was allowed accordingly.

Question of determination of voidness of allotment, upon satisfaction of decree, fell outside the jurisdiction of Banking Court and S. 23(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, had no application

Once decree stood satisfied, effect of attachment order disappeared

Lessor, lessee and allottee each were at liberty to plead, raise or agitate their respective claims before Courts having general jurisdiction

Possession of suit property was taken from lessee and delivered to decree holder bank in terms of order of 08-01-2004, and lessee was entitled to have possession upon redemption of lease hold rights

Such arrangement was subject to terms of lease deed and determination of legality of order of cancellation of lease

Rights claimed by appellant was subject to determination of issue of legality of order of cancellation of lease

High Court set aside declaration of voidness of allotment in favour of appellant and lessor, with the lessee and allottee at liberty to seek remedies available in law for enforcement of respective claims

High Court directed that process of redemption of property would be completed and possession of property be delivered to lessee

Appeal was allowed accordingly.

In terms of R. 22 of the Family Courts Rules, 1965, an appeal under S. 14 of the Family Courts Act, 1964, shall be preferred within a period of 30 days of the passing of the decree or decision but appellate Court is vested with the power to condone any delay in filing the appeal on showing sufficient cause by the appellant

From perusal of record it appeared that respondent No.3 along with her appeal moved an application for extension of time/condonation of delay, and provided sufficient explanation which resulted into the delayed appeal

Said application was supported by an affidavit and no counter affidavit was filed by the petitioner in its rebuttal, therefore, the grounds urged in the application had gone unchallenged, hence, the contents of affidavit, having gone unchallenged, were deemed to be true

Constitutional petition was dismissed.

No specific period of limitation for implementation of decree of dower couldbe fixed and whenever wife moved the legal forum for satisfaction of her right, husband was under legal obligation to satisfy such decree

Postponement of recovery of dower for any consideration during subsistence of marriage would not deprive the wife from execution of the decree being barred by time

Admittedly, marriage subsisted between the parties and the nature of dower was prompt dower, which was duly recognized by the Court

Prompt dower was recoverable during subsistence of marriage on demand

Thus, no specific period of limitation for implementation of decree of such nature could be fixed

Due to subsistence of marriage, the judgment debtor, i.e. the husband acknowledged the right of his wife and he is deemed to remain under a legal obligation to satisfy the decree whenever the decree holder/wife had moved the legal forum for satisfaction of her right

Valuable rights accrued to respondent after decree of her suit for recovery of dower, therefore, it was not fair to deprive her from the benefits of decree

One who succeeded in a litigation unjustly must not retain the benefit

After acceptance of Nikah in lieu of dower and enjoying its blessings, it did not suit a husband/judgment debtor/petitioner to question the maintainability of the execution petition on the point of limitation

Constitutional petition was dismissed.

There were only words against words; it was only in response to S.12(2), C.P.C. application that Banking Court found that the instruments were not genuine and fake

Thus required trial, more particularly when registered instruments were obtained and/or executed much before equitable and registered mortgage of year 2003

Sub-leases of appellants were registered in the year 1998 and application under S. 12(2), C.P.C., could not have been dismissed summarily via order under appeal

Division Bench of High Court set aside order in question and remanded the case to Banking Court to allow parties who might record their respective evidence, if they so desired

Appeal was allowed accordingly.

Even acceptance of offer was not a vested right which had to pass through the rigorous of O. XXI, Rr. 89/90, C.P.C. etc.

Merely on the strength of a highest bid, appellant cannot insist for acceptance of its offer and/or confirmation when material available before the court was sufficient to justify order of re-auction of properties both moveable and immoveable which had been ordered to fetch the maximum amount

Unless and until bid was confirmed and sale certificates were issued the absolute rights of highest bidder could not surface

High Court declined to interfere in the matter

Appeal was dismissed, in circumstances.

Appellants/Judgment Debtors failed to identify any illegalities in proclamation of sale, its publication and the conduct of sale in execution

Appellants/Judgment Debtors, including other members of their family, did not bring anything on record to assail auction proceedings

No cogent reason was advanced by appellants/judgment debtors or their family to set aside sale on the grounds of irregularity or fraud

High Court declined to set aside the sale on the plea that suit property was a residential bungalow occupied by members of the family and it should not be sold

Appellants/Judgment Debtors did not justify setting aside the sale to the detriment of auction-purchaser

Auction-Purchaser consistently obeyed the orders of Executing Court and had successfully achieved all the milestones during auction proceedings, including, depositing of entire enhanced/increased purchase-price pursuant to O. XXI, R. 85, C.P.C.

Court could not be prejudiced against a party that had obeyed them

Auction-Purchaser acquired legal rights and interest in the purchased Banking Suit Property

High Court declined to interfere in the order passed by Executing Court as no legal grounds were urged to set aside sale of suit property and the order was passed on proper appreciation of facts and law

Appeal was dismissed, in circumstances.

Appellant/intervener to execution proceedings sought setting aside of judgment and decree by filing application under S. 12(2), C.P.C., but Trial Court dismissed the application

Validity

If fraud was alleged in application filed under S. 12(2), C.P.C., its necessary ingredients must be pleaded, so as to subsequently prove the same

General and bald allegations of fraud and misrepresentation could not form basis to upset a decree, validly passed by a court of competent jurisdiction

Appellant was required to prove that fraud and misrepresentation was done during proceedings in Court; that alleged fraud was due to false statement and concealment of facts and that judgment and decree was collusively obtained on the basis of forged documents, which in the present case were missing

Active concealment and suppression of facts in words and deeds was essential ingredient of fraud, which could not be inferred by mere assertion, rather it was to be proved through strong, independent, clear and convincing evidence and burden was heavier in the cases in which a decree or judgment had been passed by Court of competent jurisdiction under which valuable rights were accrued in favour of opposite-party

Without bringing essential facts on record and evidence in proof of fraud, plea of ignorance and lack of knowledge simpliciter was not sufficient to constitute fraud and dislodge sanctity attached with official acts and judicial proceedings

It was not incumbent on Court to frame issues on every application filed under S. 12(2), C.P.C., especially when particulars of fraud and misrepresentation were missing but it depended upon facts and circumstances of each case

During execution proceedings subject property was auctioned and auction purchaser, pursuant to the directions of Court, deposited entire sale consideration

Right and interest of auction purchaser was created irrespective of the fact that order of confirmation for sale had been passed or not, such right of auction purchaser could not be taken away, as sanctity was attached to judicial sale

High Court declined to interfere in order passed by Banking Court as there was no illegality and/or infirmity in the order

Appeal was dismissed, in circumstances.

Though vast powers were given to Executing Court but it was also legislative intention to protect citizen from personal humiliation in the capacity of a judgment debtor

Law provided mode of execution of decrees by way of issuing warrants of arrest but the same was subject to issuance of notice to judgment debtor

Executing Court without issuance of notice to petitioner to explain his position issued his warrants of arrest, which was against mandate of such provision of law

There was nothing on record to show that petitioner was ever served with such notice as contemplated in S. 51, C.P.C. read with O. XXI, R. 37, C.P.C. and had also failed to fulfill requirements of O. XXI, R. 66, C.P.C. for simple reason that no notice was issued to petitioner prior to issuance of his warrants of arrest

Executing Court committed serious illegality and material irregularity while passing order in question, which was not permissible under the law

High Court directed Executing Court to proceed in accordance with the provision of S. 51, C.P.C. read with O. XXI, R. 37, C.P.C., and set aside order of arrest of petitioner passed by Executing Court

Constitutional petition was allowed accordingly.

Though vast powers were given to Executing Court but it was also legislative intention to protect citizen from personal humiliation in the capacity of a judgment debtor

Law provided mode of execution of decrees by way of issuing warrants of arrest but the same was subject to issuance of notice to judgment debtor

Executing Court without issuance of notice to petitioner to explain his position issued his warrants of arrest, which was against mandate of such provision of law

There was nothing on record to show that petitioner was ever served with such notice as contemplated in S. 51, C.P.C. read with O. XXI, R. 37, C.P.C. and had also failed to fulfill requirements of O. XXI, R. 66, C.P.C. for simple reason that no notice was issued to petitioner prior to issuance of his warrants of arrest

Executing Court committed serious illegality and material irregularity while passing order in question, which was not permissible under the law

High Court directed Executing Court to proceed in accordance with the provision of S. 51, C.P.C. read with O. XXI, R. 37, C.P.C., and set aside order of arrest of petitioner passed by Executing Court

Constitutional petition was allowed accordingly.

Respondents/decree holders were aggrieved of their dispossession and encroachment made by petitioners/judgment debtors over suit property

Held, that where holder of decree for injunction was dispossessed by judgment debtor or his possession was interfered with by encroachment or otherwise, the holder of such decree could apply to Executing Court for restoration of his possession or removal of encroachment from suit land

Such decree holder could not be asked to go and institute a fresh suit for restoration of possession etc.

Trial Court, Lower Appellate Court and High Court in exercise of revisional jurisdiction held that respondents/decree holders were in possession of suit land

Petitioners/judgment debtors dumped construction material upon suit land of respondents/decree holders and Executing Court had rightly directed for removal of the same

Decree of injunction was not just a piece of paper, rather had same legal force and effect as any other decree

Decree holder of an injunctive decree, if dispossessed by judgment debtor could have applied to the Court on the strength of same decree for restoration of his position under S. 151, C.P.C., which provision could also be pressed into service for restoration of possession of a decree holder of perpetual injunction

High Court declined to interfere in concurrent orders passed by two Courts below

Revision was dismissed, in circumstances.

No decree can be executed against a person who is not a part to the proceedings.

Petitioner was aggrieved of award made rule of the Court and assailed execution proceedings on the plea that those were barred by limitation

Validity

Limitation for filing of first execution petition was governed by Art. 181 of Limitation Act, 1908 and not by S.48, C.P.C.

Respondent had filed execution petition within time from the date of judgment of High Court

High Court declined to interfere in concurrent findings of two Courts below and petitioner failed to point out any illegality or infirmity committed by the two Courts

Revision was dismissed, in circumstances.

Provision of S. 15 of Limitation Act, 1908, has been made expressly applicable to application for execution of decree and it controls S. 48, C.P.C.

Period of limitation of six years has been provided in S. 48, C.P.C.

Period during which decree of Trial Court remains suspended through any injunctive order, that period must be excluded in computing period of limitation under S.48, C.P.C.

Executing court cannot go beyond the decree and it has to execute the decree in terms in which it has been passed.

Defendants contested the suit and the Trial Court ultimately passed a decree in favor of the plaintiff for a 1/5th share

Plaintiff then applied to the Executing Court for execution of the decree, which was granted

However, one of the defendants, the petitioner, also filed an application for execution of the decree on the ground that he was the legal heir of the deceased and entitled to benefit from the decree as the plaintiff had been

Validity

Plaintiff's 1/5th share had been decreed, but no finding had been recorded regarding the remaining 4/5th share, for which the petitioner sought execution

Neither the judgment nor the decree provided any executable rights for the petitioner

While the petitioner had the option to approach the civil court for an identical decree, the Executing Court was bound to execute the decree as it was passed and could not alter, amend or add to it

Courts below were correct in denying the relief sought by the petitioner

Revision petition was dismissed.

Duty to raise such objection at the initial stage is cast on judgment debtor.

In execution proceedings involving Court Auctioneer, sale of immovable property became complete when bid was accepted by Court

For the purpose of Art. 166 of Limitation Act, 1908 time was to start to run from the date the highest offer was accepted by Court

Objection petition filed by appellants/judgment debtors was not barred by limitation as it was filed on 18-10-2016 i.e. 30th day of the auction held on 08-09-2016

Reserve price of property was fixed at Rs. 108,171,850/- and to ensure proper publicity, Executing Court had to have exercised authority vested in it under R. 67(2), C.P.C. to order proclamation to be published in at least one widely circulated daily newspaper

Such failure caused injustice to appellants/judgment debtors

Only respondent/decree holder participated in auction and it provided a convenient walkover to respondent/decree holder to purchase the property at reserve price

Division Bench of High Court set aside the sale and remanded the matter to Executing Court to proceed with execution of decree in accordance with law

Appeal was allowed, in circumstances.

Appellant/judgment-debtor was aggrieved of order passed by Executing Court issuing warrants of arrest to recover decretal amount

Validity

Warrants of arrest of judgment-debtor could only be issued in cases where Court was satisfied that in order to obstruct or delay execution of decree, judgment-debtor was likely to abscond or leave limits of Court or had, after institution of suit in which decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property, or judgment-debtor has, or had means to pay the amount of decree or some substantial part thereof and refuses or neglects or had refused or neglected to pay the same, or decree was for a sum for which judgment-debtor was bound in a fiduciary capacity to account for

Without satisfaction of such pre-conditions no mechanical order for detention in prison could be passed against appellant/judgment-debtor

Order whereby warrants of arrest of appellant/judgment-debtor were issued was not sustainable and serious attempt for sale of mortgaged property through open auction was required to be made so that outstanding decretal amount could be recovered from appellant/judgment-debtor without straightaway adopting process of issuance of warrants of arrest against him for execution of decree through arrest and detention

High Court set aside the order issuing warrants of arrest against appellant/judgment-debtor

High Court directed Executing Court to proceed further with execution proceedings by holding auction of mortgaged property, in accordance with law

Appeal was allowed, in circumstances.

At the time of passing decree in question Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997, was in force

Harshness of previous law permitted award of continuous mark-up beyond contracted mark-up

Executing Court could not extend benefit of new law by replacing mark-up awarded by Banking Court under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997, with the award of cost of funds permitted under Financial Institutions (Recovery of Finances) Ordinance, 2001

This would amount to empowering Executing Court to amend the decree

High Court declined to interfere in the order passed by Executing Court

Appeal was dismissed, in circumstances.

Appellant/judgment debtor assailed reserve price of mortgaged property on the plea of Executing court fixing the same on lesser side

Validity

Nothing stopped judgment debtor to locate and bring forward a buyer of her choice either in auction or before the Court prior to sale if property was to be sold for a price which in the estimation of judgment debtor was on the lower side

Sales under O. XXI, R. 83, C.P.C., could be postponed to enable a judgment debtor for raising money through private sale of the property

Judgment debtor could not be allowed to derail auction process by submitting evaluation report prepared at his instance instead of arranging a buyer for the properties to be auctioned

Condition of confirmation of sale by Court also operated as the biggest safeguard against the property which was sold at inadequate price irrespective of the fact whether any irregularity or fraud in conduct of sale was committed or not

Banking Court rightly dismissed application of appellant / judgment debtor as there was no illegality or perversity in orders which were passed in accordance with law

High Court applying doctrine of "Limine Control" declined to interfere in the order passed by Executing Court

Appeal was dismissed, in circumstances.

Respondent/Bank filed suit for recovery of Rs. 109.460 million and after passing of consent decree, amount claimed by decree-holder bank was reduced to Rs. 64.900 million

Applicant/judgment debtor sought transfer of Execution Proceedings to Banking Court on the plea of lack of pecuniary jurisdiction of High Court

Validity

Applicant/judgment debtor on one hand accepted concession of easy installments along with conditional waiving off the claims regarding amounts of costs of funds, charges, markups etc. while not objecting to original decree despite the same being less than Rs. 100 million and not even at subsequent stage of modified agreement while taking further concessions

Applicant/judgment debtor on the other hand took a totally different plea of lack of pecuniary jurisdiction at much belated stage

Such transfer application seemed to be an attempt to avoid scheduled and agreed upon payments/installments

If stance of applicant/judgment debtor was to be accepted as correct then as a necessary consequence initial consent decree was also liable to be set aside on the sole ground of being coram non judice and in that case applicant/judgment debtor was bound to pay Rs. 109.460 million claim of respondent/Bank

High Court declined to transfer execution proceedings to Banking Court on the ground of pecuniary jurisdiction

Application was dismissed, in circumstances.

Banking Court instead of settling down terms and conditions of auction in the language of Court or granting specific approval as required under O. XXI, R. 66(1), C.P.C., the same was left at discretion of Court Auctioneer leading to manifold and major mistakes

Proclamation was published in two newspapers without fixing any reserved price of suit property

Publication reflected date of auction as 19-6-1999 at 10:00 a.m. and stipulated venue of auction at the site

Report of auction showed that auction was adjourned to 26-6-1999 and site venue was abruptly changed to the office of the decree-holder without fresh publication or proper circulation of change of date and venue

When auction was challenged on the ground of fraud in publication and conduct of sale, time could only run against victim upon gaining clear and definite knowledge of facts which had constituted fraud

High Court set aside order passed by Banking Court confirming sale through auction

Appeal was allowed in circumstances.

Appellants were legal representatives of deceased judgment-debtor who after confirmation of sale filed objections under O. XXI, R. 89, C.P.C. which were dismissed by Banking Court

Plea raised by appellants was that after death of judgment-debtor sale could not have been confirmed without notice to legal heirs

Validity

Application under O. XXI, R. 90, C.P.C. was dismissed in the life time of deceased judgment-debtor, who failed to exercise his right under O. XXI, R. 89, C.P.C., within permissible time by depositing amount as stipulated in O. XXI, R. 89(1)(a) & (b), C.P.C. read with O. XXI, R. 92(2), C.P.C.

Deceased judgment-debtor was left with no interest that could be affected or which could have been passed on to legal representatives

High Court declined to interfere in order passed by Banking Court

Appeal was dismissed in circumstances.

Highest and second highest bidders failed to deposit 25% of bid money resultantly decree holder Bank was declared successful bidder

Validity

Decree holder Bank filed application under provisions of O. XXI, R. 72, C.P.C.

Permission granted by High Court contained an implied dispensation from requirement of deposit under O. XXI, R. 84(2), C.P.C.

Auction proceedings were conducted by court auctioneer in accordance with law and there was no element of irregularity in conducting sale

Objection of judgment debtor had already been dismissed for want of deposit of 25% of amount realized at sale

High Court approved auction in favour of decree holder, subject to undertaking by decree holder committing itself to make payment of requisite amount to any other bank having charge on property in question

Bid money of decree holder was accordingly set off against decree in question

High Court directed the office to prepare necessary sales certificate, after receiving necessary amount of stamp duty from decree holder Bank

High Court directed bailiff of court to put decree holder in possession of mortgage property

Execution application was disposed of accordingly.