PLJ 2022 Lahore 149
Civil Procedure Code, 1908 (V of 1908)--
----O.XXI R. 58 & XXXVII--Suit for recovery was ex-parte decreed--Execution petition--Objection petition for recalling of order for attachment of suit property--Dismissed--Suit for specific performance filed by appellant was already decreed before filing of objection petition--Possession of suit property was also handed over--Respondent was no more owner of suit property--Challenge to--Appellant filed suit for specific performance on basis of sell agreement on 13.07.2010 which was decreed on 06.04.2012--As per record of suit for specific performance filed by appellant, possession of suit property was handed over to appellant Thereafter, appellant filed execution petition for registration of sale deed etc.--Respondent No. 1, as per judgment & decree of a competent Court of jurisdiction, was no more owner of same, as such, attachment order could not be made--Executing Court, should have acted lawfully by recalling attachment order but executing Court erred in law to dismiss same--Agreement to sell in favour of appellant was prior in time i.e. 21.04.2009--Respondent No. 1 filed petition under Section 12(2), C.P.C. in suit for specific performance of agreement to sell of appellant against Respondent No. 2 which petition was dismissed by Civil Judge--Appeal of Respondent No. 1 was also dismissed by AD&J and similarly civil revision filed by Respondent No. 1 was also dismissed by this Court--Above said decisions were not challenged any further which has attained finality--Executing Court illegally and unlawfully dismissed objection petition of appellant which order is liable to be set aside--Appeal allowed.
[Pp. 151 & 152] A, B, C, D & E
Mr. Zafar Iqbal Mangan, Advocate for Appellant.
Mr. Qamar Pervaiz Zia, Advocate for Respondent No. 1
Respondent No. 2 ex-parte vide order dated 09.05.2016.
Date of hearing: 15.11.2021.
PLJ 2022 Lahore 149
Present: Ch. Muhammad Iqbal, J.
AMIR MANZOOR--Appellant
versus
NAEEM JAVED etc.--Respondents
E.F.A. No. 760 of 2013, heard on 15.11.2021.
Judgment
Through this appeal, the appellant challenged the validity of an order dated 21.06.2013 passed by the learned executing Court/Additional District Judge, Lahore whereby the objection petition filed by the appellant was dismissed.
2. Brief facts of the case are that the Respondent No. 1, Naeem Javed, filed a suit for recovery of Rs. 10 Million (1 Crore) under Order XXXVII, C.P.C. against the Respondent No. 2, Nayyar Ahmad Malik. The said suit was ex-parte decreed on 29.11.2010. The Respondent
No. 1 filed execution petition for satisfaction of the decree wherein the suit property was attached by the learned executing Court vide order dated 20.06.2012.
The appellant during the pendency of the aforesaid execution petition, filed an objection petition for recalling of the attachment order dated 20.06.2012 on the ground that the appellant entered
into an agreement to sell with Respondent No. 2 regarding Plot
No. 53 Block-U, Phase-II, DHA Lahore against consideration of
Rs. 5,56,00,000/- out of which Rs. 2,25,60,000/-were paid as earnest money and remaining consideration was to be paid at the time of registration of sale deed. The Respondent No. 2 failed to perform his part of the agreement which resulted into filing of a suit for specific performance against Respondent No. 2 on 13.07.2010. On the conceding statement of the attorney of Respondent No. 2 the said suit was decreed on 06.04.2012. The appellant filed execution petition of the decree and during the pendency of the execution petition, the appellant came to know that the suit property had been attached in execution petition filed by Respondent No. 1 in a suit for recovery under Order XXXVII, C.P.C.
The appellant filed objection petition to the execution petition of respondent for de-attachment of the property. The said objections were dismissed by the learned executing Court vide impugned order dated 21.06.2013. Hence, this appeal.
3. I have heard the arguments of learned counsels for the parties and have gone through the- record with their able assistance.
4. In execution of the decree dated 13.07.2010 passed in a suit under Order XXXVII, CPC, the learned executing Court attached the suit property on 20.06.2012 and later on put the said property to auction. The appellant filed objection petition on 09.08.2012 under Order XXI Rule 58, C.P.C. on the ground that his suit for specific performance qua the suit land had also been decreed vide judgment & decree dated 06.04.2012 and judgment debtor of the respondent remained no more owner of the attached property which is liable to be de-attached.
6. On the other hand, the Respondent No. 1, during the pendency of the suit for recovery under Order XXXVII, C.P.C., did not file any application under Order XXXVIII Rule 5, C.P.C. for attachment of the suit property. The suit property was attached in June, 2012 whereas the suit for specific performance qua the suit property filed by the appellant had already decreed on 06.04.2012. Thus, the Respondent No. 1, as per the judgment & decree of a competent Court of jurisdiction, was no more owner of the same, as such, the attachment order could not be made. The learned executing Court, after coming to know the aforesaid facts through the objection petition of the appellant, should have acted lawfully by recalling the attachment order but the learned executing Court erred in law to dismiss the same.
10. Resultantly, this appeal is allowed, the order dated 21.06.2013 passed by the learned executing Court, dismissing the objection petition of the appellant is hereby set aside and the objection petition filed by the appellant is accepted. Learned executing Court shall proceed further in accordance with law.
(Y.A.) Appeal allowed
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