2010 C L C 1 293
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABDUL NASIR and 12 others ---Petitioners
Versus
BIBI JANATORA and 10 others ---Respondents
Civil Revision 164 of 2003, decided on 18th May, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Suit for declaration and injunction ---Claim of plaintiffs was that they were
owners of 3/4 share of property in question; that remaining 1/4 share thereof was owned by
their close relatives and that said two share -holders of 1/4 share having died issueless, their
share devolved upon the plaintiffs being close relatives --Defendants denied said claim of the
plaintiffs and claimed that property in question had been mutated in the name of grandson of
one of said owner and through him same h ad been devolved upon the defendants through
mutations ---Suit filed by the plaintiffs had concurrently been dismissed by the two courts
below ---Validity ---Burden lay on the plaintiffs to establish that two owners of 1/4 share of
the property in question ha d died issueless, but they could not establish the same as they
failed to produce specific evidence in that respect and also failed to specifically describe
relationship between them and said two deceased owners of property in question ---
Defendants also co uld not produce any evidence to prove their relationship with the two
deceased owners ---Revenue record produced before the Trial Court had revealed that no
entry after names of the deceased describing their legal heirs existed ---Courts below, in
circumstan ces, had rightly decided that deceased owners of property in question had died
issueless as nothing could be brought to the contrary ---Said deceased owners died nearly 100
years ago, but despite that mutation of alleged inheritance was effected thereafter, while
nothing was mentioned that on whose instance said entry was made in record ---Courts below
had rightly found that said entries in record were result of fraud and misrepresentation,
however, despite that both the courts below had found that as the pla intiffs had failed to
establish their title, said mutation entries could not be cancelled ---View taken by both the
courts below was erroneous ---Even on cancellation of said mutation entries, the property in
question was not required to be recorded in the n ames of the plaintiffs as no title devolved on
them ---Plaintiffs having completely failed to make out any case in their favour, they were not
entitled for any relief ---Previous entries in the names of said two owners stood restored and
authorities were dir ected to examine the matter from the very initial stage, whereafter make
appropriate orders and take steps thereon strictly in accordance with law.
Naeem Akhtar Afghan for Petitioners.
Abdul Hadi Tareen for Respondents.
Date of hearing : 11th D ecember, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioners being aggrieved of judgments dated
24-10-2001 made by Senior Civil Judge, Pishin and dated 8 -3-2003 made by Additional
District Judge, Pishin, whereby suit and appeal filed b y them were dismissed contrary to law
and facts. They preferred present petition with contention that both the courts failed to
appreciate the pleadings of the parties, evidence produced by them and revenue record, as
such the concurrent findings are based on misreading and misappreciation of material present
on record. Further, both the courts through their findings perpetuated an illegality, irregularity
and forgery committed by the respondents in executing mutation entries in respect of
property in quest ion the mutations which were liable to be cancelled, but instead of the same
the suit was dismissed. As such on coming to findings that gift made by respondent No.1 in
favour of respondent No.2 is invalid, the relevant mutation entry was also not ordered t o be
cancelled. Further, they have proved their possession; it was wrongly held that they have not
succeeded to establish their claim. They have prayed for setting aside of impugned judgments
while the suit be decreed in their favour.
As per record the petitioners/ plaintiffs filed a suit for declaration to the effect that they be
declared owners of property in question being sole legal heirs of previous owners namely
Sufi and Mandak, who died issueless. Further, mutation entries Nos.26, 27, 28, 31, 32, 33, 34
and 35 Mohal Hisko, Mouza Takhoi Khan Muhammad, Tappa Behram, Tehsil and District
Pishin be declared to be made with fraud and misrepresentation, thus liable to be cancelled.
Furthermore, the gift made by predecessor in interest of respondents Nos. 1 to 11/defendants
Nos.1 to 11 in favour of respondent No.12/defendant No.12 be declared invalid. Further,
sought injunction to the effect that the suit property be entered in their name, while
respondents/ defendants be restrained from interfering in thei r possession, also restrained
from alienating, transferring and disposing of disputed property. It is their case that property
bearing khewat No.4 Khatooni Nos.11 to 13 measuring 95 rods and 34 poles plus 4
Shabanaroz water in Mohal Hisko, Mouza Takhoi Kha n Muhammad, Tappa Behram, Tehsil
and District Pishin consist of four shares, out of which they are owners of 3/4 share along
with 3 Shabanaroz water, while the remaining 1/4 share was owned by Sufi & Mandak son of
Saleho with water. As both Sufi and Mandak died issueless, therefore, the property devolved
upon them (petitioners) being their. close relatives, as such they are in possession of the land
in question. It is further their case that as in year 1992 the predecessor in interest of
respondents Nos.1 t o 11/ defendants Nos.1 to 11 and respondent No.12 tried to interfere in
their possession, whereupon this fact came into their knowledge that the property in question
had been mutated in name of one Din Muhammad, shown as son of Mandak, while on getting
copy of mutation, on 14 -10-1992 it further revealed that both the mutations were effected on
18-5-1989, while through mutation No.34 the property in question was attested in name of
predecessor in interest of respondents Nos.1 to 11/ defendants Nos.1 to 11 na mely Fazal
Karam as sole heir of said Din Muhammad. Further, mutation No.35 was also effected on 18 -
5-1989 whereby. 1/2 share of property in question was gifted in favour of respondent No.12/
defendant No.12 by Fazai Karam predecessor in interest of respon dents Nos.1 to 11. Thus
during course of trial they for the first time get knowledge that mutations Nos.26, 27, 28, 31
and 32 Mohal Hisko, Mouza Takhoi Khan Muhammad, Tappa Behram Tehsil and District
Pishin were fraudulently entered in name of the responde nts/ defendants. Furthermore, these
revenue entries were effected by respondent No.14/ defendant No.14 in connivance with
remaining respondents/ defendants only in order to deprive them from their legal right. They
further claimed to be in possession of pr operty in question. They have prayed accordingly.
In their joint reply the respondents/ defendants strongly denied the title of the petitioners/
plaintiffs. According to them Fazal Karam is son of Din Muhammad, .who was son of
Mandak. Further, the peti tioners/ plaintiffs admitted this fact in their previously filed suit
whereby Din Muhammad was arrayed as a party, now they cannot deny the same. It is
further, their contention that as per practice in the area the mutations are not entered on basis
of inh eritance unless and until required, as such the position in present case, when necessity
arise they approached Revenue Authorities for effecting of mutation on basis of inheritance,
as such property in question was at first instance mutated in name of Din Muhammad son of
Mandak and from his name to the name of Fazal Karam on basis of Fatwa issued by a
Moulvi. They further denied the possession of petitioners/plaintiffs; according to them the
property in question is lying vacant and barren. They strongly den ied status of the
petitioners/plaintiffs of being the legal heirs of deceased Mandak and Sufi, the recorded
owners of property in question.
Issues were framed, while evidence from both the sides were called on completion the suit
was decided through ju dgment made on 24 -10-2001 by Senior Civil Judge, Pishin, holding
therein that: --
"as the plaintiffs utterly failed to establish their claim to being legal heirs of said Sufi and
Mandak and after their death, their property devolved upon them. Therefore , they are not
entitled to any relief claimed for. Resultantly, the suit filed by the plaintiffs is dismissed, but
there shall be no order as to cost."
The appeal filed by the petitioners/ plaintiffs was decided by the appellate court through
judgment dated 8 -3-2003, while dismissing the appeal the appellate court held that: --
"The perusal of these mutations shows that mutations were attested in favour of respondents
without adopting the procedure and formalities, however, the mutations would have b een
attested in favour of respondents, if the respondents first have been able to establish that they
are the legal heirs of said Sufi and Mandak. As far as its cancellation is concerned, the same
cannot be cancelled from the names of respondents, as the a ppellants have failed to establish
that they are the legal heirs of Sufi and Mandak. It was also the claim of appellants that Fazal
Karam who is father of respondents Nos.1 to 11 changed his name from Fazal Muhammad to
Fazal Kareem during the pendency of t his case. It may be observed here that this contention
is not helpful to the appellants, as they have not established their claim of being the close
relatives of Sufi and Mandak.
The perusal of record also shows that the gift made by the respondent No. 1 in favour of
respondent No.2 is illegal and invalid for the reasons that the same has not been made
according to the provision of Muhammadan Law.
The appellants have not succeeded to establish their claim to be the legal heirs of Sufi and
Mandak, so they are not entitled for any relief claimed for. Therefore, in view of above
discussions, the learned Senior Civil Judge, Pishin has rightly dismissed the suit of
appellants/plaintiffs and I find no merits in the appeal, which is consequently dismissed wi th
no order as to costs."
Through same order the appellate court also rejected the cross objections filed by respondents
Nos.1, 2, 4 and 5.
In present case the petitioners/ plaintiffs claimed their right of ownership in respect of
property in quest ion on basis that they being the close relatives of Mandak and Sufi sons of
Saleho, as both of them died issueless, thus right of inheritance devolved on them. On basis
of the same they also claimed to be in physical possession of property in question. Fur ther, as
they being sole survivors of previous owners they claimed that the mutation entries are
required to be made in their favour, while the entries made in record in favour of
respondents/defendants as effected through fraud and misrepresentation, thus liable to be set
aside. On the other hand the respondents not only denied the title of the petitioners/ plaintiffs,
but also denied the fact of having possession of property in question by them (petitioners).
According to them Sufi and Mandak survived by his son Din Muhammad, whose sole legal
heir was Fazal Karam, the predecessor in interest of respondents Nos.1 to 11. Respondent
No.12 is the person in whose favour said Fazal Karam gifted half of the property in question,
while respondent No.13 is the pers on who identified said Din Muhammad and also Fazal
Karam before Revenue Authorities, while entries in questions were also effected in record on
his attestation.
Keeping in view these assertions and facts at the first instance the burden lies on the,
petitioners/plaintiffs to establish that said Sufi and Mandak died issueless, while being close
relatives they were survived by the petitioners. Though several witnesses were produced, but
no specific evidence has come on record specifically describing the r elationship existed
between the petitioners and Sufi and Mandak. Their entitlement starts from very existence of
this relationship, which they failed to establish. Both the courts come to correct conclusion to
this effect.
As far as the fact of existen ce of legal heirs of Sufi and Mandak are concerned, though the
respondents asserted that Sufi was survived by his brother Mandak, who survived by Din
Muhammad, his son, while he survived by Fazal Karam being his son. Specific evidence in
same respect has a lso not come on record. The witnesses appeared from both the sides given
only formal statements. No such documents were placed on record to prove the existence of
relationship between Mandak, Din Muhammad and Fazal Karam. The Revenue record
Pedigree Table, produced before the trial court, reveals that there is no entry after names of
Sufi and Mandak, describing their legal heirs. The courts below have rightly decided that Sufi
and Mandak both died issueless as nothing contrary has come on record.
The di sputed entries, which are present on record, were got exhibited during course of trial,
while perusal of the same reveals that the property in question was entered in name of
Mandak from the name of Sufi through mutation effected on 8 -8-1982 being entry ma de on
basis of inheritance. It is to be noted that as per parties said Sufi and Mandak died nearly 100
years ago despite the same the mutation was effected in 1982, while nothing is mentioned in
the report that on whose instance the said entry was made in record. While on 8 -8-1982
another mutation was effected whereby the property in question was got recorded in favour of
Din Muhammad asserted to be son of Mandak, it is also inteqal -e-warasat. As per report of
office present on the same the said entry was m ade in presence and on verification of one
Malik Abdul Qayyum son of Abdul Hameed. The Property was whereafter entered in name
of Fazal Karam son of Din Muhammad on same date i.e. 8 -8-1982; this is also mutation on
basis of inheritance. The office report p resent thereon reveals that the same was also attested
on verification made by one Malik Abdul Qayyum son of Abdul Hameed. Thereafter, in
respect of same property another entry was recorded in record of rights on 18 -4-1989,
whereby the property from the na me of Mandak was transferred in name of Din Muhammad
son of Mandak, while as per report present thereon the legal heirs were verified by one Jalat
Khan i.e. respondent No.13 in present petition. This property was again transferred from the
name of Din Muha mmad to Fazal Karam, being his legal heir on 18 -5-1989; this entry was
also effected on instance of Jalat Khan, respondent No.13. On the same date another mutation
entry was made in record in favour of Abdul Wali (respondent No.12) by Fazal Karam,
predeces sor-in-interest of respondents Nos. 1 to 11 whereby property was transferred in his
name on basis of Hiba made in his favour, while Haji Jalat Khan was shown to be present to
identify them as per office report. The record further reveals that as per mutati on entry No.31
the property in question was transferred from name of Sufi son of Saleho to Muhammad
Khair alias Laloo shown as son of Sufi this mutation was also effected on 18 -5-1989. While
on the same date i.e. 18 -5-1989 mutation No.32 was effected where by from the name of
Muhammad Khair the property is transferred on the name of Abdul Wali, respondent No.12.
Both these entries are also recorded on instance of Haji Jalat Khan respondent No.13, who
appeared before the Authorities and made verification. An order of Deputy Commissioner/
Collector Pishin dated 25 -1-1999 is also present on record, wherein all these facts in relation
to these entries, are mentioned and the irregularities and illegalities are also pointed out.
From this set of evidence the tr ial as well as appellate court observed the flaws and defects
present in these entries thereby rightly held that these are result of fraud and
misrepresentation. Despite the same both the courts held that as the plaintiffs have failed to
establish their ti tle, therefore, mutation entries cannot be cancelled. The view taken by both
the courts are erroneous: From material present on record as discussed above it can safely be
presumed that due to the fact that said Sufi and Mandak died issueless, the parties a re trying
hard to get hold of property in question one way or the other. Respondent No.13 along with
respondent No.12 and predecessor of respondents Nos.1 to 11 namely Fazal Karam managed
to get transferred the property in question in their names, while re spondent No.13 in his
statement has admitted that he has purchased property in question from Fazal Karam. He is
the main and most interested person and behind all these acts. The conduct of concerned
Authorities/officials are also objectionable as they acc ommodated the parties and permit all
the process to be go on. The Authorities have to look after the interest of the true owner.
The trial as well as appellate court when once comes to the conclusion that the mutation
entries in question are result of fraud and misrepresentation they were required to cancel the
same, irrespective of the findings that the petitioners have failed to establish their title being
legal heirs of Sufi and Mandak. As it is to be kept in sight that on cancellation of mutation
entries in question the property was not required to be recorded in name of petitioners, as no
title devolves on them, nor they able to prove legal title in their favour.
In view of above discussion as the petitioners have completely failed to make out a ny case in
their favour, therefore, they are not entitled for any relief. But as it has been established that
mutation entries bearing Nos.26, 27, 28, 31, 32, 33, 34 and 35 Mohal Hisko, Mouza Takhoi
Khan Muhammad, Tappa Behram Tehsil and District Pishin be ing disputed in present case
are result of fraud and misrepresentation, therefore, they are hereby cancelled. The previous
entries in names of Sufi and Mandak son of Saleho stand restored. In the circumstances it will
be just and proper to direct the conce rned Authorities to examine the matter from very initial
stage, whereafter, make appropriate orders and take steps thereon strictly in accordance with
law. Further, the Authority shall also take legal steps and actions against the persons/ officials
who fo und involved in this matter. Petition is disposed of in above terms.
No orders as to costs.
H.B.T./34/Q Order accordingly.
K.M.Z./5 /Q Petition dismissed.
H.B.T./143/Q Petition accepte
Civil Revision No.225 of 2010, decided on 21st December, 2012.
Civil Procedure Code (V of 1908) ---
----Ss.2(11), 47(3) & 50 ---Execution of decree against legal representat ives of deceased
judgment debtor ---Duty of court ---Scope ---Term "representative" as used in S.47(3), C.P.C.
would include legal representative as defined in S.2(11) thereof as well as any person being
representative -in-interest of a party to suit ---Court w ould firstly determine that who would be
legal representative of deceased judgment debtor and then would proceed against such
representative ---Decree could be executed to the extent of property of deceased judgment
debtor having come into hands of a legal representative ---Principles.
Rauf Hashmi for Petitioner.
Miss Iram Mahmood and Amanullah Tareen, Additional Advocate General for
Respondents Nos. 2 and 3.
Date of hearing: 8th May, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petition er Irfan Bashir feeling
aggrieved of the order dated 30th April, 2010 of District Judge, Quetta, whereby his
application under section 12(2) Civil Procedure Code (C.P.C.) was dismissed, filed the
instant petition contending therein that the trial court arr ived to an incorrect conclusion,
thereby held that the property of the deceased judgment debtor namely Shaukat Bashir was
transferred in favour of his legal heirs, including him (petitioner). It was contention of the
petitioner that there was no concept of surety in an execution proceedings, but the court
below while treating him as surety, and erroneously proceeded with the matter, thereby
committed illegality. Furthermore, the execution of decree was sought by the decree
holder/respondent No.1 against a d ead person, that too, even without bringing his legal heirs
on record, and in absence thereof the decree was not executable. It was further contended that
the brothers of the deceased judgment debtors were pressurized, and he (petitioner) being one
of them , and an employee of a Government Department, was blackmailed, and in compelling
circumstances he (petitioner) deposited an amount of Rs.150,000 (Rupees one lac and fifty
thousand only). It was further contention of the petitioner that according to Christi an Law he
(petitioner) was not liable to pay the debt amount of his deceased brother not being his legal
heir, as such the decree cannot be executed against him. The petitioner contended that
through misrepresentation, and fraud respondent No.1 obtained th e decree behind the back of
a deceased person, and also filed application for execution of decree against a dead person.
But, these aspects of the case were remained unattended. He prayed for setting aside of the
order dated 30th April 2010, with further p rayer of acceptance of the application filed under
section 12(2), C.P.C.
2. The learned counsel for the parties were heard at length. The learned counsel for the
petitioner strongly criticized the order of the court below, while contending that initially
through judgment dated 26th December, 2005 the suit was partly decreed only to the extent
of Shaukat Bashir, but the appellate court on appeal preferred by respondent No.1 altered the
judgment, and thereby the respondent No.4 Sohan Masih was also stood li able to pay the
decretal amount. The learned counsel contended that the execution proceedings were held on
the application filed by respondent No.1, thereby the petitioner was compelled to pay the
decretal amount in sheer violation of law. Further, the app lication filed by the petitioner
under section 12(2), C.P.C. was not properly considered, and the request made was declined.
Further, the court below failed to consider that the petitioner was neither party to the suit, nor
any notice was served on him. Fu rther, in case of death of the judgment debtor his legal heirs
were required to be made party to the proceedings, but it was not done. In absence thereof no
proceedings pertaining to execution of decree can be held, nor it can be satisfied. Further, the
requirements of Order XXI, Rule 16, C.P.C. were not fulfilled, therefore, the all proceedings
were of no legal effect. The learned counsel further contended that the petitioner was not
legal heir of deceased Shaukat Bashir under the Christian Law, therefore, not liable to pay the
decretal amount. Further, the execution application was filed against a dead person, and
without even issuing process for the second judgment debtor, therefore, of no legal effect. It
was contended that the court below was required t o frame issues, and call for evidence for
determination of the matter with context to the application filed under section 12 subsection
(2), C.P.C., but it was not done, which resulted in an erroneous decision, therefore, liable to
be set aside.
3. In reply thereof the learned counsel for respondent No.1 contended that the petitioner
being not covered by the term aggrieved person, therefore, not entitled to file an application
under section 12(2), C.P.C. The learned counsel further contended that the pet itioner himself
undertook to pay the decretal amount, thereby submitted a surety to the effect before the
court, therefore, he was liable to pay the decretal amount, and the proceedings were rightly
held against him. It was further contended that an applic ation for depositing of decretal
amount through installments was also filed by him (petitioner), therefore, in view of section
145, C.P.C. he was liable to pay the decretal amount. The learned Additional Advocate
General representing respondents Nos.2 and 3 only contended that as no decree existed
against the Government, therefore, they were unnecessarily made party to these proceedings.
4. The papers annexed with the instant petition were not found sufficient to decide the
real controversy, therefore, t he record pertaining to execution proceedings, and the
application under section 12(2), C.P.C. were called for perusal. The record revealed that
initially the suit was filed for recovery of an amount of Rs.3,49,772 (Rupees three lacs, forty
nine thousand, seven hundred and seventy two only) along with interest by the present
respondent No.1 Singer Pakistan Limited against the Government of Balochistan, through
Secretary Population Department, Shaukat Bashir, and Sohan Masih. The suit was tried, and
decided through judgment dated 26th December, 2005, whereby the trial court only decreed
the suit to the extent of defendant No.3 Shaukat Bashir, found him liable to pay the decretal
amount. The appeal preferred by the plaintiff/decree holder, was decided vide jud gment dated
29th November, 2006 by Additional District Judge -III, Quetta, whereby the decree was
upheld, but with alteration that respondent No.4 Sohan Masih was also decided to be liable
for payment of the outstanding amount, thereby ordered that both the judgment debtors were
severally and jointly liable to pay the decretal amount.
5. The decree holder/present respondent No.1 Singer Pakistan Limited filed an
application bearing No.13 of 2009 on 29th July, 2009 for execution of the decree, which was
entertained. The perusal of the application reveals that in its title only name of Shaukat
Bashir, and others appeared, but the contents of the application failed to disclose the fact that
the judgment debtor Shaukat Bashir had since been died. Rather, it was written therein that
according to the Church Certificate Mrs. Shaukat Bashir is the only legal heir/successor of
the deceased. The details of the property asserted to be owned by Shaukat Bashir were also
mentioned in the application. While the decree hold er prayed for execution of the decree in
terms: --
"It is, therefore, humbly prayed that execution of decree may please be made by
issuance of warrants of arrest and detention in prison of judgment debtors as well as
attachment, sale and auction of prope rties of judgment debtors, in the interest of justice."
6. The perusal of the case file pertaining to the execution application further reveals that
during course the decree holder moved another application with contention that Mrs. Shaukat
Bashir had be en made party as successor in interest of the deceased judgment debtor. But, the
name of the said lady no where reflected from the record. Neither, she was ever associated
with the proceedings, nor any notice was issued in her name. The order sheets main tained
from 29th June, 2009 till 10th August, 2009, on this application were written by the Senior
Civil Judge -II, Quetta in his own hand writing, which are not readable, therefore, hard to
understand what these orders contained.
7. However, the perusa l of the case file pertaining to the execution application further
reveals that power of Mr. Munir Hashmi, Advocate was available, but it failed to disclose for
whom it was filed. But, by comparison it appeared that the power was filed on behalf of the
present petitioner. Further, the second judgment debtor Sohan Masih, was represented by
Syed Ayaz Zahoor, Advocate, who filed his power on 28th October, 2009. Furthermore, an
application bearing date 28th October, 2009, with a request for payment of decretal amount in
fixed installments, available in the case file. But, as no name appeared in the application,
therefore, it was not certain who was the applicant. But, in reply thereof the decree holder
asserted that the application was filed by the widow of dece ased judgment debtor. But, the
order sheets maintained by Senior Civil Judge -II, Quetta failed to disclose the name of the
person, who moved the mentioned application. It is painfully observed that all the diary
sheets maintained by Senior Civil Judge -II, Quetta, the names of the counsel appearing for
decree holder, and judgment debtor were not disclosed. Even there was no distinction that
who was appearing for which of the parties. Rather only D/H describe the decree holder, and
J/D for judgment debtor. Th e order sheets also unable to make distinction in the counsel
appearing for respondent No.4 the judgment debtor, and for the present petitioner Irfan
Bashir. This reflects the negligent conduct, and incompetence of the Judge, a serious note of
it is to be taken.
8. The record further reveals that the application filed for fixation of payment of the
decretal amount in installments was allowed on 9th October, 2009, in pursuance thereof an
amount of Rs.150,000 was paid in the court by Irfan Bashir being desc ribed as ( )
judgment debtor in the relevant order sheet. Thereafter, no further amount was paid in the
court. But, the court below while proceeding with the execution process also issued bailable
warrants of the surety described as Irfan Bashir, and further ordered for attachment of the
salary of the surety i.e. Irfan Bashir. In compliance thereof process for attachment of the
salary was issued. It was recorded in the order sheet dated 7th June, 2010, that last one
recorded in execution application, that one Mushtaq Ahmed, described as decree holder, filed
an undertaking that he has received total amount of the decree dated 26th December, 2005 on
behalf of the Company. On basis of this statement the execution application was disposed of.
9. The peti tioner feeling aggrieved of the situation meanwhile approached the court
below by way of filing an application under section 12(2), C.P.C., thereby raised objection
on legality of the decree on the grounds that no notice was ever served on Shaukat Bashir,
and Sohan Masih, defendants Nos.3 and 4, in the suit. It was due to the reason that Shaukat
Bashir was permanent resident of United Kingdom (UK), and no summon was issued to him
on the address at UK. Therefore, without being properly served no decree can be passed
against him (deceased). Furthermore, Shaukat Bashir died in United Kingdom on 31st May,
2009 leaving behind no issue, therefore, the decree cannot be executed against a dead person.
The petitioner contended that the decree holder only pressurize d the brothers of the deceased
judgment debtor for payment of the decretal amount, and started blackmailing one of them,
the petitioner, who was a Government employee, thereby managed to recover an amount of
Rs.150,000 from him (present petitioner). It was contended that as the judgment debtor
belonged to the Christian Community, therefore, he (petitioner) was not liable to pay the
amount of debt of the deceased being not his legal heir. There was a prayer for setting aside
of the judgment, and decree and dismissal of the suit. This application was replied by
respondent No.1, being the decree holder, while raising several legal objections on its
maintainability, the application was strongly contested on merits also.
10. The District Judge, Quetta vide or der dated 30th April, 2010 dismissed the application
while arrived to the conclusion that the applicant (present petitioner) was neither judgment
debtor, nor an aggrieved person, therefore, not entitled to seek a relief for setting aside of the
judgment. I t was also held that the application being time barred, and condonation of delay
was not prayed, therefore, not maintainable. The petitioner feeling aggrieved of the order
filed the instant petition for redressal of his grievance.
11. The facts as narrat ed hereinabove disclosed that the decree was obtained by
respondent No.1 against two of the defendants i.e. Shaukat Bashir, and Sohan, and they were
held liable to pay an amount of Rs.3,49,772 vide decree dated 26th December, 2005 and 29th
November, 2006. It was noted that the appellate court while deciding the appeal mentioned
the decretal amount as Rs.4,39,772 (Rupees four lacs, thirty nine thousand, seven hundred
and seventy two only), which is an error, and liable to be rectified. Certain other facts al so
appeared from the material on the record. The judgment debtor Shaukat Bashir was alive
when the suit was decided by the trial court, but, before filing of the execution application he
died. But, this fact was not properly described in the contents of th e execution application,
rather a vague statement was given. Keeping in view the fact that the execution application
was filed in the year, 2009, a notice was required to be issued to the judgment debtors before
proceeding with the matter. Further, in pres ent case one of the judgment debtors was dead,
and this fact was in knowledge of the decree holder, therefore, the details of legal heirs might
have been disclosed, and they were required to be served. But, the perusal of the execution
application reveals that neither the details of the legal heirs were provided, nor notices were
ever issued to them. Even the second judgment debtor Sohan Masih was not get served. But,
fortunately he become aware of the fact as a counsel made appearance on his behalf. But, d ue
to the aforementioned facts there was no representation on behalf of the legal heirs of
Shaukat Bashir during course of execution proceedings. Instead of the legal heirs the
petitioner remained present before the court below during the proceedings. It w as further
observed that during course of execution of decree no order was made, nor any process was
issued for recovery of the amount against second judgment debtor Sohan Masih. Rather Irfan
Bashir (present petitioner) was focused, and all the execution p roceedings were held against
him. In these circumstances an amount of Rs.150,000 was recovered fThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.