اجراء کے دوران مدیون کی طرف سے فروختگی جائیداد

 PLJ 2022 Lahore 667
Present: Muhammad Shan Gul, J.
NAEEM SHEHZAD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, ARIFWALA and 2 others--Respondents
W.P. No. 208019 of 2018, heard on 23.6.2022.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 13(3)--Suit for dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles--Execution proceedings--Attachment of property--Objection petition--Dismissed--Sale of property by judgment debtor during pendency of execution proceedings--Purchaser of property was defence witness of judgment-debtor--Shame transaction--Concurrent findings--Relationship between judgment debtor and petitioner--Delay of more than 12 years in execution of decree on basis of an inapplicable objection cannot under principles of equity, justice and fair play be allowed to defeat decree under execution--Sale transaction in present matter reeks of an audacious and unembarrassed attempt to push already marginalized and persecuted into further misery and thereby dampen liberation and emancipation of women in Pakistan--Judgment debtor only alienated his inherited property to frustrate judgment and decree passed against him much prior to sale deed and entire exercise was nothing but a shabby and synthetic attempt to frustrate judgment and decree passed by family Court--Petition dismissed.

[P. 674 & 675] C, D & F

1990 CLC 686 ref.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 13(3)--Execution proceedings--Section 13(3) of West Pakistan Family Courts Act, 1964 empowered Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. [P. 673] A

2002 SCMR 1950 & 2015 CLC 667 ref.

Constitution of Pakistan, 1973--

----Art. 199--Jurisdiction--Judicial power-- The jurisdiction and judicial power emanating out of Article 199 of Constitution is conditioned upon principles of equity and fairness. [P. 674] B

Constitution of Pakistan, 1973--

----Art. 25--Right of equal protection--In a written constitutional set up such as ours Courts are custodians and guardians of social contract between State and its citizens--The Constitution and right of equal protection of law as also command for affirmative action in favour of women (Article 25 refers) would become illusory if defeated litigants or those who claim under them are allowed to navigate through technical shelters and deprive decree holder of her just desserts. [P. 674] E

(1872) 14 Moor’s Indian Appeals 612 & (1973) 89 ITR 190 ref.

Nemo for Petitioner.

Mr. Tariq Hussain, Advocate for Respondents.

Date of hearing 23.6.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

2. The question confronting the Court pertains to the status of a property sold by a judgment debtor during the pendency of an execution petition emanating out of a family suit in order to avoid and frustrate enforcement of a judgment and decree.

3. The petitioner before this Court is the real biological brother of judgment debtor Zainul Abidin. It is this aspect of the matter which makes the reading ahead even more interesting.

4. Facts in brief are that a family suit titled “Nazia Aziz etc v. Zainul Abidin etc” was filed on 10.06.2014 and through this suit dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles and payment of delivery expenses was claimed. Since preliminary reconciliation efforts failed the marriage was dissolved on the basis of “Khula”, while vide judgment and decree dated 06.05.2016 the Respondent Nazia Aziz and minor Zainab Bibi were granted maintenance allowance as also delivery expenses.

5. An appeal filed against the said judgment by Respondent Nazia Aziz was allowed and the impugned judgment and decree was modified and the maintenance allowance granted by the trial Court was enhanced from Rs. 3000/-per month to Rs. 6000/-per month. Thereafter Respondent Nazia Aziz filed an execution petition since her former husband Zainul Abidin was not willing to respect and comply with the judgments and decrees in question. Respondent Nazia Aziz filed an execution petition on 17.09.2016.

6. During execution proceedings Respondent Nazia Aziz moved an application to attach property consisting of land measuring 0-marla and 5-sarsai situated in Chawk No. 61-EB Tehsil Arifwala. This application was allowed by the learned executing Court vide order dated 10.02.2017 and the said property was ordered to be attached. This led the petitioner before this Court to file an objection petition maintaining that he had purchased the said property from his real brother Zainul Abidin (judgment debtor) vide registered sale deed dated 06.09.2016 bearing Mutation No. 20807 and that he was in possession of said property and therefore prayed for the order of attachment dated 10.02.2017 to be recalled. Respondent Nazia Aziz contested this application on the ground that the sale deed resulted out of a sham transaction and since the property was sold after a decree had been obtained by Respondent Nazia Aziz so as to frustrate execution proceedings with respect thereto, the objection petition merited to be dismissed.

7. The executing Court vide order dated 05.01.2018 dismissed this objection petition by relying on the fact that the objection petitioner Muhammad Naeem Shahzad was cited as a witness on behalf of his brother Zainul Abidin, the judgment debtor, in the family suit and he was well aware of the proceedings in the main suit. The executing Court noted that the main suit was decreed on 06.05.2016 and an appeal against the same was dismissed on 23.08.2016 and consequently an execution petition was filed on 17.09.2016. That, interestingly on 03.09.2016 judgment debtor Zainul Abidin acquired the disputed property i.e. 5 Sarsai through inheritance mutation No. 20593 and thereafter within three days i.e. on 06.09.2016 he transferred the disputed property through a registered sale deed dated 06.09.2016. The executing Court noted that since the present petitioner before this Court was a witness on behalf of the judgment debtor and had knowledge of the judgment and decree passed in the main suit, he was therefore well aware of the judgment and decree passed against the judgment debtor and having knowledge about such a decree and being well familiar with the recalcitrance of the judgment debtor in not playing ball it was evident that the sale deed in question was an artificial transaction and had only been executed to frustrate the process of the Court as also to cheat the Court. The executing Court, therefore, dismissed the objection petition and ordered for the registered deed to be cancelled.

8. This led the petitioner Muhammad Naeem Shahzad to file an appeal before the District Court Arifwala and the appellate Court dismissed the appeal by noting as follows:-

Record reveals that respondent Mst. Nazia Aziz instituted suit on 10.06.2014. Said suit was contested by the judgment debtor Zain-ul-Abideen and he submitted list of witnesses and Appellant Naeem Shehzad was mentioned as witness in the said list of witnesses. Said suit was decreed by the learned trial Court on 06.05.2016 thereafter appeal was preferred against the said judgment and decree dated 06.05.2016 in the Court of learned Additional District Judge Arifwala which decided the appeal on 23.08.2016. Thereafter execution petition was filed by the Respondent Nazia Aziz on 17.09.2016. Property in question was acquired by the judgment debtor Zain-ul-Abideen through mutation of inheritance No. 20593 on 03.09.2016 and judgment debtor transferred the said property in name of Appellant Naeem Shehzad who is his real brother on 06.09.2016. The judgment debtor and appellant was fully aware of the decree in execution and it is established that judgment debtor transferred his property to his brother Naeem Shehzad, the appellant, after passing the decree in execution which has not been assailed before any honourable competent Court as per available record as such same has attained finality. It is further held that judgment debtor transferred the said property in the name of his brother just to defeat the execution of decree and process of law. So in these circumstances learned trial Court did not commit any illegality while dismissing the objection petition.

9. This, in turn led the petitioner to file the present constitutional petition which is sought to be decided.

10. Leaned counsel for the petitioner was not present on the last date of hearing i.e. 08.04.2021 and has chosen to absent himself even today despite the fact that his name stands reflected conspicuously in the cause list. There is no intimation available about reasons for his absence. However, since the present constitutional petition has been listed in the red list, it has been taken up to be adjudicated on the basis of the available record and the grounds taken in the constitutional petition.

11. The grounds taken in the petition reveal as follows: That the petitioner is neither a judgment debtor nor party to the execution proceedings and even then his property was not only attached but the sale deed on the basis of which he become owner of the property was declared to be of no legal effect. That it is only the property of a competing party that can be attached for the satisfaction of decree or even a property in dispute can be attached but in his case a stranger’s property has been attached and taken away.

12. In response, learned counsel for the respondents states that since the petitioner is the real biological brother of the judgment debtor who was cited as a witness in the family suit on behalf of the judgment debtor and who allegedly bought the property in issue after the passage of a judgment and decree in favour of Respondent Nazia Aziz, the orders under challenge were unexceptionable and needed no interference.

13. Hence the question before the Court as to the status of a property sold by a judgment debtor during the course of execution proceedings but after the passage of a judgment and decree.

14. Had the judgment debtor sold the property in question to a stranger or to somebody who was not related to him the grounds taken in the petition may have been appealing. However, the relationship between the judgment debtor Zainul Abidin and the present petitioner and the undue haste with which the property in issue was alienated by the judgment debtor i.e. within three days of having inherited the property read with the fact that the property was sold after the passage of the judgment and decree against the judgment debtor restrains this Court from subscribing to the stance taken by the petitioner. What makes the sale deed dated 06.09.2016 even more questionable is the fact that the petitioner was cited as a defence witness by the judgment debtor in the family suit and therefore had adequate knowledge about the passage of the judgment and decree against the judgment debtor and who being his real biological brother was also not in the dark about his brother’s precarious financial condition.

15. These factors noted above can only lead the Court to one conclusion and which is that the transaction of sale was a sham transaction between two real brothers meant only to frustrate the judgment and decree passed by a family Court and only to allow the judgment debtor to wriggle out of the liability legally imposed on him. The relationship between the judgment debtor and the petitioner does not allow this Court to reach any other conclusion.

16. In (2015 SCMR 128) “Amjad Iqbal v. Mst. Nida Sohail and others” in which the respondent had filed a suit for maintenance against her father and which suit was decreed on 18.04.1998 and an appeal against which was dismissed and where the respondent filed an execution petition and where the judgment debtor failed to honour the decree and was detained in civil prison and upon his release made Hibah of his residential house in favour of his second wife and where the successful respondent moved an application for recovery of decretal amount by means of sale of residential house so gifted by stating that the Hibah had only been made to avoid the decree and was thus a fraudulent transaction and where the executing Court declared the said Hibah to be unlawful and proceeded to attach the house, it was held at para 6 as follows:

The Executing Court through its order dated 14-5-2011 declared such Hiba to be unlawful and such order of the Executing Court appears to have been maintained by the revisional Court. Once the Hiba itself was declared to be unlawful, any further transaction on the basis of the said Hiba could only be a nullity in the eye of law for that the donee of the Hiba did not have legal title to the house to sell the same to the petitioner. Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of Respondent No. 2's own minor daughter. Unfortunately, the Respondent No. 2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the Respondent No. 2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the Respondent No. 2.

Description: A17. The honourable Supreme Court of Pakistan went on to hold that the technical trappings of execution provided in the Code of Civil Procedure were not strictly applicable to execution proceedings before a Family Court and that Section 13(3) of the West Pakistan Family Courts Act, 1964 empowered the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue.

18. That, likewise, in (2002 SCMR 1950) “Muhammad Sadiq v. Dr. Sabir Sultana” where an agreement to sell and subsequently a sale deed was executed to frustrate a judgment and decree passed by a Family Court, the sale deed was declared to be invalid and it was held that the sale deed was invalid having been effectuated only to frustrate the judgment and decree of the Family Court and was thus a fraudulent transaction.

19. Similarly in (2015 CLC 667) “Saima Perveen and 2 others v. Naeem Ahmad Nasir and 3 others” in which an agreement to sell dated 08.08.2007 and which agreement to sell had been judicially approved vide judgment and decree dated 28.12.2008 was in issue with such transactions taking place subsequent to the decree of maintenance passed in favour of the estranged wife and minor children of the seller who was also the judgment debtor and where the respondents were close relatives, it was held at paragraph 7 as follows:

Undeniably, the alleged agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of Respondent No. 1 are all subsequent events to the decree of maintenance allowance passed in favour of the petitioner. I am of the considered opinion that Respondents Nos. 1 and 2, closely related, in connivance with each other have tried to frustrate the decree of maintenance allowance passed in favour of the petitioner. Any agreement to sell executed by the judgment debtor regarding his property after the decree passed against him is illegal and unlawful and does not create any right in favour of the subsequent/alleged purchaser.

20. Seen even from a different perspective it is obvious that the dictates of equity and fairness also compel this Court to not to perpetuate the case of the petitioner because the significance of never being oblivious of what would constitute fairness in a situation has been stressed upon by jurists since centuries and in the words of Allahabad High Court in (1973) 89 ITR 190, “even when the Courts step into the world of legal fantasy the principles of equity and justice cannot be lost sight of.”

Description: BDescription: C21. The jurisdiction and judicial power emanating out of Article 199 of the Constitution is conditioned upon principles of equity and fairness. Furthermore, according to the Hon‟ble Supreme Court of Pakistan in “Haji Muhammad Nawaz v. Samina Kanwal and others” (2017 SCMR 321), “in terms of law, the proceedings of the learned Family Court, whether as a trial Court or an executing Court, are governed by the general principles of equity, justice and fair play. The circumstances of the present case, namely, delay of more than 12 years in the execution of the decree on the basis of an inapplicable objection cannot under the principles of equity, justice and fair play be allowed to defeat the decree under execution.”

Description: D22. The sale transaction in the present matter reeks of an audacious and unembarrassed attempt to push the already marginalized and persecuted into further misery and thereby dampen liberation and emancipation of women in Pakistan. As the Hon’ble Sindh High Court has observed in “Abdur Rehman and 2 others v. CityBank N.A.” (1990 CLC 686) in the context of a case where innocence is claimed by a party causing loss to the other, “the rule of equity which applies to an innocent person signifies that the one who could prevent the loss must suffer and not the other who was powerless to do so.”

Description: E23. In a written constitutional set up such as ours the Courts are the custodians and guardians of the social contract between the State and its citizens. The Constitution and the right of equal protection of law as also the command for affirmative action in favour of women (Article 25 refers) would become illusory if defeated litigants or those who claim under them are allowed to navigate through technical shelters and deprive the decree holder of her just desserts. Endorsing such a course would tantamount to doing what the Privy Council warned against in (General Manager of the Raj Darbhanga v.

Moharaj Coomar Rampus Singh, (1872) 14 Moor’s Indian Appeals 612), “the difficulties of a litigant in India would begin when he has obtained a decree. …….”

Description: F24. Having considered the matter from all perspectives it is evident that judgment debtor Zainul Abidin only alienated his inherited property to frustrate the judgment and decree passed against him much prior to the sale deed and therefore the entire exercise was nothing but a shabby and synthetic attempt to frustrate the judgment and decree passed by the family Court.

25. In view of what has been noted above, the concurrent findings of the Courts below are unexceptionable and not susceptible to any correction or modification. The same are upheld and this constitutional petition is dismissed.

(Y.A.) Petition dismissedاجراء کے دوران مدعیون کی طرف سے بیچے گئی جائیداد کا سٹسس کیا ہوگا ۔۔۔۔ جانیے اس فیصلے کی روشنی میں

PLJ 2022 Lahore 667

Present: Muhammad Shan Gul, J.

NAEEM SHEHZAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, ARIFWALA and 2 others--Respondents

W.P. No. 208019 of 2018, heard on 23.6.2022.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 13(3)--Suit for dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles--Execution proceedings--Attachment of property--Objection petition--Dismissed--Sale of property by judgment debtor during pendency of execution proceedings--Purchaser of property was defence witness of judgment-debtor--Shame transaction--Concurrent findings--Relationship between judgment debtor and petitioner--Delay of more than 12 years in execution of decree on basis of an inapplicable objection cannot under principles of equity, justice and fair play be allowed to defeat decree under execution--Sale transaction in present matter reeks of an audacious and unembarrassed attempt to push already marginalized and persecuted into further misery and thereby dampen liberation and emancipation of women in Pakistan--Judgment debtor only alienated his inherited property to frustrate judgment and decree passed against him much prior to sale deed and entire exercise was nothing but a shabby and synthetic attempt to frustrate judgment and decree passed by family Court--Petition dismissed.

[P. 674 & 675] C, D & F

1990 CLC 686 ref.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 13(3)--Execution proceedings--Section 13(3) of West Pakistan Family Courts Act, 1964 empowered Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. [P. 673] A

2002 SCMR 1950 & 2015 CLC 667 ref.

Constitution of Pakistan, 1973--

----Art. 199--Jurisdiction--Judicial power-- The jurisdiction and judicial power emanating out of Article 199 of Constitution is conditioned upon principles of equity and fairness. [P. 674] B

Constitution of Pakistan, 1973--

----Art. 25--Right of equal protection--In a written constitutional set up such as ours Courts are custodians and guardians of social contract between State and its citizens--The Constitution and right of equal protection of law as also command for affirmative action in favour of women (Article 25 refers) would become illusory if defeated litigants or those who claim under them are allowed to navigate through technical shelters and deprive decree holder of her just desserts. [P. 674] E

(1872) 14 Moor’s Indian Appeals 612 & (1973) 89 ITR 190 ref.

Nemo for Petitioner.

Mr. Tariq Hussain, Advocate for Respondents.

Date of hearing 23.6.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

2. The question confronting the Court pertains to the status of a property sold by a judgment debtor during the pendency of an execution petition emanating out of a family suit in order to avoid and frustrate enforcement of a judgment and decree.

3. The petitioner before this Court is the real biological brother of judgment debtor Zainul Abidin. It is this aspect of the matter which makes the reading ahead even more interesting.

4. Facts in brief are that a family suit titled “Nazia Aziz etc v. Zainul Abidin etc” was filed on 10.06.2014 and through this suit dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles and payment of delivery expenses was claimed. Since preliminary reconciliation efforts failed the marriage was dissolved on the basis of “Khula”, while vide judgment and decree dated 06.05.2016 the Respondent Nazia Aziz and minor Zainab Bibi were granted maintenance allowance as also delivery expenses.

5. An appeal filed against the said judgment by Respondent Nazia Aziz was allowed and the impugned judgment and decree was modified and the maintenance allowance granted by the trial Court was enhanced from Rs. 3000/-per month to Rs. 6000/-per month. Thereafter Respondent Nazia Aziz filed an execution petition since her former husband Zainul Abidin was not willing to respect and comply with the judgments and decrees in question. Respondent Nazia Aziz filed an execution petition on 17.09.2016.

6. During execution proceedings Respondent Nazia Aziz moved an application to attach property consisting of land measuring 0-marla and 5-sarsai situated in Chawk No. 61-EB Tehsil Arifwala. This application was allowed by the learned executing Court vide order dated 10.02.2017 and the said property was ordered to be attached. This led the petitioner before this Court to file an objection petition maintaining that he had purchased the said property from his real brother Zainul Abidin (judgment debtor) vide registered sale deed dated 06.09.2016 bearing Mutation No. 20807 and that he was in possession of said property and therefore prayed for the order of attachment dated 10.02.2017 to be recalled. Respondent Nazia Aziz contested this application on the ground that the sale deed resulted out of a sham transaction and since the property was sold after a decree had been obtained by Respondent Nazia Aziz so as to frustrate execution proceedings with respect thereto, the objection petition merited to be dismissed.

7. The executing Court vide order dated 05.01.2018 dismissed this objection petition by relying on the fact that the objection petitioner Muhammad Naeem Shahzad was cited as a witness on behalf of his brother Zainul Abidin, the judgment debtor, in the family suit and he was well aware of the proceedings in the main suit. The executing Court noted that the main suit was decreed on 06.05.2016 and an appeal against the same was dismissed on 23.08.2016 and consequently an execution petition was filed on 17.09.2016. That, interestingly on 03.09.2016 judgment debtor Zainul Abidin acquired the disputed property i.e. 5 Sarsai through inheritance mutation No. 20593 and thereafter within three days i.e. on 06.09.2016 he transferred the disputed property through a registered sale deed dated 06.09.2016. The executing Court noted that since the present petitioner before this Court was a witness on behalf of the judgment debtor and had knowledge of the judgment and decree passed in the main suit, he was therefore well aware of the judgment and decree passed against the judgment debtor and having knowledge about such a decree and being well familiar with the recalcitrance of the judgment debtor in not playing ball it was evident that the sale deed in question was an artificial transaction and had only been executed to frustrate the process of the Court as also to cheat the Court. The executing Court, therefore, dismissed the objection petition and ordered for the registered deed to be cancelled.

8. This led the petitioner Muhammad Naeem Shahzad to file an appeal before the District Court Arifwala and the appellate Court dismissed the appeal by noting as follows:-

Record reveals that respondent Mst. Nazia Aziz instituted suit on 10.06.2014. Said suit was contested by the judgment debtor Zain-ul-Abideen and he submitted list of witnesses and Appellant Naeem Shehzad was mentioned as witness in the said list of witnesses. Said suit was decreed by the learned trial Court on 06.05.2016 thereafter appeal was preferred against the said judgment and decree dated 06.05.2016 in the Court of learned Additional District Judge Arifwala which decided the appeal on 23.08.2016. Thereafter execution petition was filed by the Respondent Nazia Aziz on 17.09.2016. Property in question was acquired by the judgment debtor Zain-ul-Abideen through mutation of inheritance No. 20593 on 03.09.2016 and judgment debtor transferred the said property in name of Appellant Naeem Shehzad who is his real brother on 06.09.2016. The judgment debtor and appellant was fully aware of the decree in execution and it is established that judgment debtor transferred his property to his brother Naeem Shehzad, the appellant, after passing the decree in execution which has not been assailed before any honourable competent Court as per available record as such same has attained finality. It is further held that judgment debtor transferred the said property in the name of his brother just to defeat the execution of decree and process of law. So in these circumstances learned trial Court did not commit any illegality while dismissing the objection petition.

9. This, in turn led the petitioner to file the present constitutional petition which is sought to be decided.

10. Leaned counsel for the petitioner was not present on the last date of hearing i.e. 08.04.2021 and has chosen to absent himself even today despite the fact that his name stands reflected conspicuously in the cause list. There is no intimation available about reasons for his absence. However, since the present constitutional petition has been listed in the red list, it has been taken up to be adjudicated on the basis of the available record and the grounds taken in the constitutional petition.

11. The grounds taken in the petition reveal as follows: That the petitioner is neither a judgment debtor nor party to the execution proceedings and even then his property was not only attached but the sale deed on the basis of which he become owner of the property was declared to be of no legal effect. That it is only the property of a competing party that can be attached for the satisfaction of decree or even a property in dispute can be attached but in his case a stranger’s property has been attached and taken away.

12. In response, learned counsel for the respondents states that since the petitioner is the real biological brother of the judgment debtor who was cited as a witness in the family suit on behalf of the judgment debtor and who allegedly bought the property in issue after the passage of a judgment and decree in favour of Respondent Nazia Aziz, the orders under challenge were unexceptionable and needed no interference.

13. Hence the question before the Court as to the status of a property sold by a judgment debtor during the course of execution proceedings but after the passage of a judgment and decree.

14. Had the judgment debtor sold the property in question to a stranger or to somebody who was not related to him the grounds taken in the petition may have been appealing. However, the relationship between the judgment debtor Zainul Abidin and the present petitioner and the undue haste with which the property in issue was alienated by the judgment debtor i.e. within three days of having inherited the property read with the fact that the property was sold after the passage of the judgment and decree against the judgment debtor restrains this Court from subscribing to the stance taken by the petitioner. What makes the sale deed dated 06.09.2016 even more questionable is the fact that the petitioner was cited as a defence witness by the judgment debtor in the family suit and therefore had adequate knowledge about the passage of the judgment and decree against the judgment debtor and who being his real biological brother was also not in the dark about his brother’s precarious financial condition.

15. These factors noted above can only lead the Court to one conclusion and which is that the transaction of sale was a sham transaction between two real brothers meant only to frustrate the judgment and decree passed by a family Court and only to allow the judgment debtor to wriggle out of the liability legally imposed on him. The relationship between the judgment debtor and the petitioner does not allow this Court to reach any other conclusion.

16. In (2015 SCMR 128) “Amjad Iqbal v. Mst. Nida Sohail and others” in which the respondent had filed a suit for maintenance against her father and which suit was decreed on 18.04.1998 and an appeal against which was dismissed and where the respondent filed an execution petition and where the judgment debtor failed to honour the decree and was detained in civil prison and upon his release made Hibah of his residential house in favour of his second wife and where the successful respondent moved an application for recovery of decretal amount by means of sale of residential house so gifted by stating that the Hibah had only been made to avoid the decree and was thus a fraudulent transaction and where the executing Court declared the said Hibah to be unlawful and proceeded to attach the house, it was held at para 6 as follows:

The Executing Court through its order dated 14-5-2011 declared such Hiba to be unlawful and such order of the Executing Court appears to have been maintained by the revisional Court. Once the Hiba itself was declared to be unlawful, any further transaction on the basis of the said Hiba could only be a nullity in the eye of law for that the donee of the Hiba did not have legal title to the house to sell the same to the petitioner. Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of Respondent No. 2's own minor daughter. Unfortunately, the Respondent No. 2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the Respondent No. 2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the Respondent No. 2.

Description: A17. The honourable Supreme Court of Pakistan went on to hold that the technical trappings of execution provided in the Code of Civil Procedure were not strictly applicable to execution proceedings before a Family Court and that Section 13(3) of the West Pakistan Family Courts Act, 1964 empowered the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue.

18. That, likewise, in (2002 SCMR 1950) “Muhammad Sadiq v. Dr. Sabir Sultana” where an agreement to sell and subsequently a sale deed was executed to frustrate a judgment and decree passed by a Family Court, the sale deed was declared to be invalid and it was held that the sale deed was invalid having been effectuated only to frustrate the judgment and decree of the Family Court and was thus a fraudulent transaction.

19. Similarly in (2015 CLC 667) “Saima Perveen and 2 others v. Naeem Ahmad Nasir and 3 others” in which an agreement to sell dated 08.08.2007 and which agreement to sell had been judicially approved vide judgment and decree dated 28.12.2008 was in issue with such transactions taking place subsequent to the decree of maintenance passed in favour of the estranged wife and minor children of the seller who was also the judgment debtor and where the respondents were close relatives, it was held at paragraph 7 as follows:

Undeniably, the alleged agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of Respondent No. 1 are all subsequent events to the decree of maintenance allowance passed in favour of the petitioner. I am of the considered opinion that Respondents Nos. 1 and 2, closely related, in connivance with each other have tried to frustrate the decree of maintenance allowance passed in favour of the petitioner. Any agreement to sell executed by the judgment debtor regarding his property after the decree passed against him is illegal and unlawful and does not create any right in favour of the subsequent/alleged purchaser.

20. Seen even from a different perspective it is obvious that the dictates of equity and fairness also compel this Court to not to perpetuate the case of the petitioner because the significance of never being oblivious of what would constitute fairness in a situation has been stressed upon by jurists since centuries and in the words of Allahabad High Court in (1973) 89 ITR 190, “even when the Courts step into the world of legal fantasy the principles of equity and justice cannot be lost sight of.”

Description: BDescription: C21. The jurisdiction and judicial power emanating out of Article 199 of the Constitution is conditioned upon principles of equity and fairness. Furthermore, according to the Hon‟ble Supreme Court of Pakistan in “Haji Muhammad Nawaz v. Samina Kanwal and others” (2017 SCMR 321), “in terms of law, the proceedings of the learned Family Court, whether as a trial Court or an executing Court, are governed by the general principles of equity, justice and fair play. The circumstances of the present case, namely, delay of more than 12 years in the execution of the decree on the basis of an inapplicable objection cannot under the principles of equity, justice and fair play be allowed to defeat the decree under execution.”

Description: D22. The sale transaction in the present matter reeks of an audacious and unembarrassed attempt to push the already marginalized and persecuted into further misery and thereby dampen liberation and emancipation of women in Pakistan. As the Hon’ble Sindh High Court has observed in “Abdur Rehman and 2 others v. CityBank N.A.” (1990 CLC 686) in the context of a case where innocence is claimed by a party causing loss to the other, “the rule of equity which applies to an innocent person signifies that the one who could prevent the loss must suffer and not the other who was powerless to do so.”

Description: E23. In a written constitutional set up such as ours the Courts are the custodians and guardians of the social contract between the State and its citizens. The Constitution and the right of equal protection of law as also the command for affirmative action in favour of women (Article 25 refers) would become illusory if defeated litigants or those who claim under them are allowed to navigate through technical shelters and deprive the decree holder of her just desserts. Endorsing such a course would tantamount to doing what the Privy Council warned against in (General Manager of the Raj Darbhanga v.

Moharaj Coomar Rampus Singh, (1872) 14 Moor’s Indian Appeals 612), “the difficulties of a litigant in India would begin when he has obtained a decree. …….”

Description: F24. Having considered the matter from all perspectives it is evident that judgment debtor Zainul Abidin only alienated his inherited property to frustrate the judgment and decree passed against him much prior to the sale deed and therefore the entire exercise was nothing but a shabby and synthetic attempt to frustrate the judgment and decree passed by the family Court.

25. In view of what has been noted above, the concurrent findings of the Courts below are unexceptionable and not susceptible to any correction or modification. The same are upheld and this constitutional petition is dismissed.

(Y.A.) Petition dismissedاجراء کے دوران مدیون کی طرف سے فروختگی جائیداد

PLJ 2022 Lahore 667

Present: Muhammad Shan Gul, J.

NAEEM SHEHZAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, ARIFWALA and 2 others--Respondents

W.P. No. 208019 of 2018, heard on 23.6.2022.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 13(3)--Suit for dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles--Execution proceedings--Attachment of property--Objection petition--Dismissed--Sale of property by judgment debtor during pendency of execution proceedings--Purchaser of property was defence witness of judgment-debtor--Shame transaction--Concurrent findings--Relationship between judgment debtor and petitioner--Delay of more than 12 years in execution of decree on basis of an inapplicable objection cannot under principles of equity, justice and fair play be allowed to defeat decree under execution--Sale transaction in present matter reeks of an audacious and unembarrassed attempt to push already marginalized and persecuted into further misery and thereby dampen liberation and emancipation of women in Pakistan--Judgment debtor only alienated his inherited property to frustrate judgment and decree passed against him much prior to sale deed and entire exercise was nothing but a shabby and synthetic attempt to frustrate judgment and decree passed by family Court--Petition dismissed.

[P. 674 & 675] C, D & F

1990 CLC 686 ref.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 13(3)--Execution proceedings--Section 13(3) of West Pakistan Family Courts Act, 1964 empowered Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. [P. 673] A

2002 SCMR 1950 & 2015 CLC 667 ref.

Constitution of Pakistan, 1973--

----Art. 199--Jurisdiction--Judicial power-- The jurisdiction and judicial power emanating out of Article 199 of Constitution is conditioned upon principles of equity and fairness. [P. 674] B

Constitution of Pakistan, 1973--

----Art. 25--Right of equal protection--In a written constitutional set up such as ours Courts are custodians and guardians of social contract between State and its citizens--The Constitution and right of equal protection of law as also command for affirmative action in favour of women (Article 25 refers) would become illusory if defeated litigants or those who claim under them are allowed to navigate through technical shelters and deprive decree holder of her just desserts. [P. 674] E

(1872) 14 Moor’s Indian Appeals 612 & (1973) 89 ITR 190 ref.

Nemo for Petitioner.

Mr. Tariq Hussain, Advocate for Respondents.

Date of hearing 23.6.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

2. The question confronting the Court pertains to the status of a property sold by a judgment debtor during the pendency of an execution petition emanating out of a family suit in order to avoid and frustrate enforcement of a judgment and decree.

3. The petitioner before this Court is the real biological brother of judgment debtor Zainul Abidin. It is this aspect of the matter which makes the reading ahead even more interesting.

4. Facts in brief are that a family suit titled “Nazia Aziz etc v. Zainul Abidin etc” was filed on 10.06.2014 and through this suit dissolution of marriage, recovery of maintenance allowance, recovery of dowry articles and payment of delivery expenses was claimed. Since preliminary reconciliation efforts failed the marriage was dissolved on the basis of “Khula”, while vide judgment and decree dated 06.05.2016 the Respondent Nazia Aziz and minor Zainab Bibi were granted maintenance allowance as also delivery expenses.

5. An appeal filed against the said judgment by Respondent Nazia Aziz was allowed and the impugned judgment and decree was modified and the maintenance allowance granted by the trial Court was enhanced from Rs. 3000/-per month to Rs. 6000/-per month. Thereafter Respondent Nazia Aziz filed an execution petition since her former husband Zainul Abidin was not willing to respect and comply with the judgments and decrees in question. Respondent Nazia Aziz filed an execution petition on 17.09.2016.

6. During execution proceedings Respondent Nazia Aziz moved an application to attach property consisting of land measuring 0-marla and 5-sarsai situated in Chawk No. 61-EB Tehsil Arifwala. This application was allowed by the learned executing Court vide order dated 10.02.2017 and the said property was ordered to be attached. This led the petitioner before this Court to file an objection petition maintaining that he had purchased the said property from his real brother Zainul Abidin (judgment debtor) vide registered sale deed dated 06.09.2016 bearing Mutation No. 20807 and that he was in possession of said property and therefore prayed for the order of attachment dated 10.02.2017 to be recalled. Respondent Nazia Aziz contested this application on the ground that the sale deed resulted out of a sham transaction and since the property was sold after a decree had been obtained by Respondent Nazia Aziz so as to frustrate execution proceedings with respect thereto, the objection petition merited to be dismissed.

7. The executing Court vide order dated 05.01.2018 dismissed this objection petition by relying on the fact that the objection petitioner Muhammad Naeem Shahzad was cited as a witness on behalf of his brother Zainul Abidin, the judgment debtor, in the family suit and he was well aware of the proceedings in the main suit. The executing Court noted that the main suit was decreed on 06.05.2016 and an appeal against the same was dismissed on 23.08.2016 and consequently an execution petition was filed on 17.09.2016. That, interestingly on 03.09.2016 judgment debtor Zainul Abidin acquired the disputed property i.e. 5 Sarsai through inheritance mutation No. 20593 and thereafter within three days i.e. on 06.09.2016 he transferred the disputed property through a registered sale deed dated 06.09.2016. The executing Court noted that since the present petitioner before this Court was a witness on behalf of the judgment debtor and had knowledge of the judgment and decree passed in the main suit, he was therefore well aware of the judgment and decree passed against the judgment debtor and having knowledge about such a decree and being well familiar with the recalcitrance of the judgment debtor in not playing ball it was evident that the sale deed in question was an artificial transaction and had only been executed to frustrate the process of the Court as also to cheat the Court. The executing Court, therefore, dismissed the objection petition and ordered for the registered deed to be cancelled.

8. This led the petitioner Muhammad Naeem Shahzad to file an appeal before the District Court Arifwala and the appellate Court dismissed the appeal by noting as follows:-

Record reveals that respondent Mst. Nazia Aziz instituted suit on 10.06.2014. Said suit was contested by the judgment debtor Zain-ul-Abideen and he submitted list of witnesses and Appellant Naeem Shehzad was mentioned as witness in the said list of witnesses. Said suit was decreed by the learned trial Court on 06.05.2016 thereafter appeal was preferred against the said judgment and decree dated 06.05.2016 in the Court of learned Additional District Judge Arifwala which decided the appeal on 23.08.2016. Thereafter execution petition was filed by the Respondent Nazia Aziz on 17.09.2016. Property in question was acquired by the judgment debtor Zain-ul-Abideen through mutation of inheritance No. 20593 on 03.09.2016 and judgment debtor transferred the said property in name of Appellant Naeem Shehzad who is his real brother on 06.09.2016. The judgment debtor and appellant was fully aware of the decree in execution and it is established that judgment debtor transferred his property to his brother Naeem Shehzad, the appellant, after passing the decree in execution which has not been assailed before any honourable competent Court as per available record as such same has attained finality. It is further held that judgment debtor transferred the said property in the name of his brother just to defeat the execution of decree and process of law. So in these circumstances learned trial Court did not commit any illegality while dismissing the objection petition.

9. This, in turn led the petitioner to file the present constitutional petition which is sought to be decided.

10. Leaned counsel for the petitioner was not present on the last date of hearing i.e. 08.04.2021 and has chosen to absent himself even today despite the fact that his name stands reflected conspicuously in the cause list. There is no intimation available about reasons for his absence. However, since the present constitutional petition has been listed in the red list, it has been taken up to be adjudicated on the basis of the available record and the grounds taken in the constitutional petition.

11. The grounds taken in the petition reveal as follows: That the petitioner is neither a judgment debtor nor party to the execution proceedings and even then his property was not only attached but the sale deed on the basis of which he become owner of the property was declared to be of no legal effect. That it is only the property of a competing party that can be attached for the satisfaction of decree or even a property in dispute can be attached but in his case a stranger’s property has been attached and taken away.

12. In response, learned counsel for the respondents states that since the petitioner is the real biological brother of the judgment debtor who was cited as a witness in the family suit on behalf of the judgment debtor and who allegedly bought the property in issue after the passage of a judgment and decree in favour of Respondent Nazia Aziz, the orders under challenge were unexceptionable and needed no interference.

13. Hence the question before the Court as to the status of a property sold by a judgment debtor during the course of execution proceedings but after the passage of a judgment and decree.

14. Had the judgment debtor sold the property in question to a stranger or to somebody who was not related to him the grounds taken in the petition may have been appealing. However, the relationship between the judgment debtor Zainul Abidin and the present petitioner and the undue haste with which the property in issue was alienated by the judgment debtor i.e. within three days of having inherited the property read with the fact that the property was sold after the passage of the judgment and decree against the judgment debtor restrains this Court from subscribing to the stance taken by the petitioner. What makes the sale deed dated 06.09.2016 even more questionable is the fact that the petitioner was cited as a defence witness by the judgment debtor in the family suit and therefore had adequate knowledge about the passage of the judgment and decree against the judgment debtor and who being his real biological brother was also not in the dark about his brother’s precarious financial condition.

15. These factors noted above can only lead the Court to one conclusion and which is that the transaction of sale was a sham transaction between two real brothers meant only to.