2013 C L C 1395
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Syed ZIA -UD-DIN and another ----Appellants
Versus
SHABIR AHMED and others ----Respondents
Civil Miscellaneous Appeals Nos.26 of 2005 and 3 of 2006, decided on 30th April, 2013.
(a) Specific Relief Act (I of 1877) ---
----S. 12 ---Civil Procedure Code (V of 1908), O. XXI, Rr.30, 40, 47 & 59 ---Suit for specific
performance of agreement to sell vehicle ---Plaintiff claimed recovery of balance sale price of
vehicle from defendant -vend ee and his surety ---Ex parte decree passed against defendant and his
surety for recovery of such balance price, while restraining Excise and Taxation Authority from
transferring vehicle from name of decree -holder to any body else ---Execution proceedings ---
Custody of vehicle taken by Police in compliance of order of Executing Court ---Custody of
vehicle later on restored by Executing Court to intervener on superdagi after dismissing his
application claiming to be its bona fide purchaser ---Validity ---Vehicle w as not subject -matter of
suit except its balance sale price ---Trial Court while decreeing suit had not ordered for specific
performance of agreement, rather had passed decree for recovery of balance sale price ---Decree
had not restrained sale and purchase of vehicle ---Executing Court had not adopted proper
procedure laid down in O.XXI, R.30, C.P.C. for execution of money decree ---Duty of Executing
Court might attach and sell property owned by judgment -debtors or arrest them ---Vehicle though
existed in decre e-holder's name, but had been recovered from possession of intervener, who was
neither judgment -debtor nor alleged to be in its possession on behalf of judgment -debtors ---
Executing Court had taken custody of vehicle in absence of order of its attachment ---Taking over
possession of vehicle by Police would neither serve the purpose nor of any legal effect nor
amount to an order for its attachment ---Executing Court had rightly restored possession of
vehicle to the intervener ---Decree -holder could pursue his ex ecution application within terms of
decree in which same was passed ---High Court disposed of both appeals filed by decree -holder
and intervener in above terms.
(b) Civil Procedure Code (V of 1908) ---
----S. 51, O. XXI, Rr.10 & 11 ---Execution of decree ---Powers of Executing Court ---Scope ---
Executing Court could not go beyond decree, rather would have to remain within its ambit, adopt
procedure prescribed under law and satisfy same in terms in which same was passed.
(c) Administration of justice ---
----No order could be made in contravention of law and prescribed procedure.
Munir Agha and Qahir Shah for Appellants (in Civil Miscellaneous No.26 of 2005).
M. Munir Langove for Respondent (in Civil Miscellaneous No.26 of 2005).
M. Munir Langove for Appellants (in Civil Miscellaneous Appeal No.3 of 2006).
Munir Agha and Qahir Shah for Respondents (in Civil Miscellaneous Appeal No.3 of
2006).
Date of hearing: 6th November, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The above titled a ppeals arising from the same
proceedings, though separate orders were questioned thereby, but as the matter in issue was the
same, and decision of one would have bearings on the other, therefore, to avoid any conflict in
findings, it deemed appropriate to decide both the appeals by this common order.
2. Brief facts of the case as appeared from perusal of the record are that Syed Zia -ud-Din
the appellant in Appeal No.26 of 2005/respondent No.1 in the Appeal No.3 of 2006, filed a suit
against Muhammad Akbar Siddiqui, Jamil -ul-Hassan Siddiqui and Excise and Taxation Officer,
whose names appeared as respondents Nos.2 to 4 in Civil Appeal No.3 of 2006 thereby sought
specific performance of the agreement dated 17th March, 2001. It was his case that a sale
transa ction in respect of a vehicle, details whereof provided as Toyota Corolla bearing
Registration No.QAK -876, Chassis No.CE -80.6031637 Engine No.0426829, was held between
him (Zia -ud-Din), and defendant No.1 (Muhammad Akbar Siddiqui) in consideration of
Rs.70 0,000/ - (Rupees Seven Lac only). During course an amount of Rs.50,000/ - (Rupees Fifty
Thousand only) was paid at time of transaction. While for the remaining amount of Rs.6,50,000/ -
(Rupees 6 lac fifty thousand only), it was agreed between the parties that it would be paid after a
period of two years. And for the purpose defendant No.2 (Jamil -ul-Hassan Siddiqui) stood surety
with an undertaking that if defendant No.1 (Akbar Siddiqui) failed to pay the remaining amount
he (Jamil -ul-Hassan Siddiqui) would pay the same. And for the purpose he agreed to sell his
house situated at Sarhad Colony, Muhammad Rauf Town, Karachi. It was further agreed that in
case of failure an amount of Rs.200,000/ - (Rupees two lac only) would be paid as fine. In result
thereof the ve hicle was handed over to the purchaser Muhammad Akbar Siddiqui, while the
documents of the said property were handed over to the plaintiff Syed Zia -ud-Din. But, despite
demands the remaining amount was not paid in the agreed period, nor thereafter, which r esulted
in filing of the suit.
3. The perusal of the case files reveals that in both the appeals all the relevant documents
were found missing, even the plaint, and written statements were not filed, therefore, it was hard
to determine what was the plea of the parties taken before the trial Court. But, from perusal of
the judgment of the trial court dated 15th September, 2005 the fact revealed that defendants
Nos.1 and 2/present respondents Nos.2 and 3 failed to appear, therefore, the proceedings against
them were held ex parte. The trial Court passed the decree in terms: ---
"The present Civil Suit No.10 of 2005 is decreed as ex parte and the defendants Nos.1
and 2 are severally and jointly directed to pay the sale transaction amount of Rs.6,50,000/ - along
with Rs.2,00,000/ - as fine to plaintiff forthwith and defendant No.3 is restrained from
transferring the vehicle from the name of plaintiff on the name of defendant or anyone else."
4. The decree -holder Syed Zia -ud-Din filed an application seeking ex ecution of the decree,
which was entertained by the court below. It appeared that during course of execution an
application under section 151, Civil Procedure Code (C.P.C.) read with section 47, C.P.C. was
filed by the decree -holder to the effect that the questioned car had been sold, and being utilized,
thereby its custody be obtained through police, to satisfy the decree. This application was
allowed, and in compliance of the order, made by the executing court for the purpose, the
custody of the vehicle i n question was obtained by the Police from Shabbir Ahmed/the present
appellant. Feeling aggrieved of the situation an application within the meanings of subsection (2)
of section 12, C.P.C. was filed by the appellant (Shabbir Ahmed) with a request that he may be
made party to proceedings, being purchaser of the vehicle from One Muhammad Ali in
consideration of Rs.4,10,000/ - in December, 2003. It was his contention that the fact of sale, and
purchase between him, and Muhammad Ali was within the knowledge of the plaintiff (Zia -ud-
Din) prior to filing of the suit, which was with mala fides. Further, the decree was obtained ex
parte through fraud, and misrepresentation, therefore, the judgment dated 15th September, 2005,
deserved to be set aside. In addition the reto it was requested that he be made party to the
proceedings, and the matter be decided afresh with restoration of possession of the vehicle to
him.
5. The decree -holder/present respondent No.1 opposed the application with contention that
the intervene r (present appellant) failed to produce any document to establish his ownership of
the vehicle, and having its possession. Further, till date the vehicle in question existed in his
(present respondent No.1) own name.
6. The record further revealed the fact that during hearing of the application, the
appellant/intervener Shabbir Ahmed requested for delivery of possession of the vehicle to him,
this application, though contested, but allowed by the court below vide order dated 5th
December, 2015. Feeling aggrieved the decree -holder Syed Zia -ud-Din questioned the order by
filing Civil Miscellaneous Appeal No.26 of 2005, the instant appeal, contending therein that the
questioned vehicle till date existed in his name in the relevant record, and also subject -matter of
the Suit No.10 of 2005. It was his contention that the only intention behind filing of the
application was to frustrate the decree, and to deprive him (Syed Zia -ad-Din) of his right. He
further denied existence of any legal right in favour of Bash ir Ahmed, who being in league with
the judgment -debtors intended to defeat the decree. Setting side of the order was requested.
7. The record further reveals that the application filed under section 12(2), C.P.C. by the
appellant Bashir Ahmed was rejecte d by the trial Court vide order dated 6th February, 2006, with
an order for revival of the execution proceedings. This order was questioned by the appellant
(Bashir Ahmed) by way of filing Civil Miscellaneous Appeal No.3 of 2006. It was his contention
that he was in physical possession of the vehicle in question, obtained through a valid sale
between him, and one Muhammad Ali in 2003. It was further contended that as no restriction
was imposed on respondents Nos.2 and 3 (Muhammad Akbar Siddiqui, and Jamil -ul-Hassan
Siddiqui) to enter into any transaction in respect of the questioned vehicle by virtue of the
agreement dated 17th March, 2001, therefore, in view of the facts no liability rests on the
questioned vehicle. Furthermore, the trial Court lacks jurisd iction in the matter, as the questioned
property was situated at Karachi. But, the court below failed to consider these material aspects of
the case. The prayer was for setting aside of the order, and the decree dated 15th September,
2005, with a further p rayer that he be arrayed as party to the suit for a decision on merits of the
case.
8. Learned counsel for the contesting parties i.e. the appellants Zia -ud-Din and Bashir
Ahmed were heard. The remaining parties never appeared to contest the proceedings. The
learned counsel for the appellant Bashir Ahmed argued his case with contention that the suit was
for specific performance of the agreement dated 17th March, 2001, but the document was neither
properly tendered, nor made part of the record, therefore, not proved as per legal requirement.
Furthermore, the questioned vehicle was taken into custody without any reasons, from him on
request of the decree -holder by the trial Court ignoring the fact that the decree was in terms of
recovery of money, therefore, the act was beyond the terms of the decree, therefore, not
sustainable. The learned counsel referred to Order XXI, Rules 47 and 59, C.P.C., thereby
contended that the legal procedure was not adopted, therefore, the orders made were nullity in
the eyes of law.
9. The learned counsel for respondent No.1/decree -holder/appellant in Appeal No.26 of
2005 rebutted the contention raised from the other side. It was his contention that he being the
decree -holder empowered, and entitled by force of law to adopt any mode for execution of a
decree in his favour for its satisfaction. Further, the vehicle in question till date existed in the
name of the decree -holder (Zia -ad-Din), and as the judgment -debtors failed to fulfil the liability
on them as per the agreed terms , therefore, the mode adopted was appropriate in the
circumstances. Therefore, the order passed for return of the vehicle was neither legal, nor just,
and liable to be withdrawn. The learned counsel stated that the order amounts to deprive the
decree -holde r from his right available to him on basis of a decree, which is still in field.
10. The papers annexed with the appeals were perused, and perusal whereof reveals that the
alleged sale transaction, the basis of the litigation, was between Zia -ud-Din, and Muhammad
Akbar Siddiqui, while Jamil -ul-Hassan Siddiqui was surety to the transaction. The agreement,
specific performance whereof prayed, was executed between Syed Zia -ud-Din, and Muhammad
Akbar Siddiqui, while Jamil -ul-Hassan Siddiqui signed it as suret y. Further, the contents of the
plaint as described in the judgment dated 15th September, 2005, contained the fact that
possession of the vehicle was handed over to Muhammad Akbar Siddiqui being the purchaser on
execution of the agreement, while some part of the agreed sale price was paid at the relevant
time. Though the suit was titled as of specific performance, but the decree was in terms of
payment of money, as it directed payment of the sale consideration of Rs.6,50,000/ - along with
fine of Rs.200,000/ - to the plaintiff (Zia -ud-Din) by the defendants Nos.1 and 2 (Akbar Siddiqui,
and Jamil -ul-Hassan). In addition thereto permanent injunction was issued thereby defendant
No.3 Excise and Taxation Officer was restrained from transferring the vehicle from th e name of
the plaintiff (Zia -ud-Din) in the name of any one else.
11. This decree remained unchallenged on part of the judgment -debtors, thereby attained
finality. But, during course of its execution, in response to an order, whereby custody of the
vehic le was taken by the police, the appellant Shabbir Ahmed appeared before the court below
with a claim of being a bona fide purchaser, and last possessor the questioned vehicle, and by
way of filing an application under section 12(2), C.P.C., he not only cha llenged the order of
taking the vehicle in custody by the police, but also questioned the judgment and decree dated
5th September, 2005. But, during course the vehicle was released on surety in his (Shabbir
Ahmed's) favour. As mentioned hereinabove this ap plication filed under section 12(2), C.P.C.
was rejected vide order dated 6th March, 2006. But, he (Shabbir Ahmed) was allowed for the
custody of vehicle vide order dated 5th December, 2005. Both the parties feeling aggrieved of
the orders approached this court by filing the instant appeals.
12. The agreement dated 17th March, 2001 was the main document, on which the case of the
plaintiff rests. While going through the same the facts were evident that the questioned vehicle
was agreed to be sold by the ow ner Zia -ud-Din in consideration of Rs.700,000/ -, and an amount
of Rs.50,000/ - was paid as an advance money. While the remaining amount was agreed to be
paid within two years. But, it was further agreed between the parties that if the purchaser
(Muhammad Ak bar Siddiqui) failed to make the payment, the property owned by Jamil -ul-
Hassan Siddiqui (surety) would be sold, and the remaining amount would be paid to the
appellant/decree -holder by the surety, and in case of failure the surety was bound to pay an
amou nt of Rs.200,000/ - as damages. This fact also noted down in the agreement that the title
documents of the referred property were also handed over to the seller (Zia -ud-Din). The trial
Court while deciding the suit made no order for specific performance of the agreement, rather the
decree was in terms of payment of the sale price along with fine, and both the defendants i.e.
Muhammad Akbar Siddiqui, and Jamil -ul-Hassan Siddiqui were held liable for making the
payment severally and jointly.
13. The pape rs annexed with memo of appeal revealed that the execution application filed for
the purpose failed to disclose the mode of execution of the decree, required to be proposed by the
decree -holder. But, during course by way of filing an application the decree -holder succeeded to
get hold of the vehicle in question through Police Authorities, with an assertion that it would
provide a help in execution of the decree. It appeared that some process was issued to the Police
Authorities, but not found in the case fi le. The report submitted by the Station House Officer
(S.H.O.) Police Station Sariab, Quetta, in compliance thereof reported that the vehicle was taken
into custody; and placed in the Police Station. The court below proceeded ahead with the
execution proce edings, but meanwhile rejected the application under section 12(2), C.P.C., but
prior to passing of the order handed over custody of the vehicle to the appellant Bashir Ahmed
on supardagi .
14. The way in which the proceedings were held by the court belo w were in complete
violation of the provided procedure. The court below failed to observe that the subject vehicle
was not subject -matter of the suit. Though the agreement was for sale of the vehicle, but the
terms in which the decree was passed failed to speak that in case of failure on part of the
judgment -debtors in payment of the decretal amount, custody of the questioned vehicle would be
restored to the decree -holder. Rather the decree only declared him (Zia -ud-Din) to be entitled for
recovery of money , the remaining of the sale price, and the fine. In addition thereto though the
concerned authorities i.e. defendant No.3 was restrained from effecting of transfer of the
question vehicle from the name of the decree -holder to any one else, but there was no order
restraining the sale, and purchase of the questioned vehicle. In view thereof while observing the
established principle that a decree be executed, and satisfied in the terms in which it was passed.
Therefore, the court below while executing the decr ee must remain within the ambit of the
decree, and cannot go beyond it.
15. In case in hand the appellant (Shabbir Ahmed) claimed to have purchased the vehicle in
year 2003, while the suit was decreed in year 2005, therefore, during the intervening perio d from
2001 to 2005, if any transaction was held, it cannot be declared as null and void in grab of the
decree, nor he can be deprived of his right. Further, no relief to the extent was claimed in the
suit. Nor the agreement, specific performance whereof w as claimed, contain any clause to the
effect that if the sale price was not paid as agreed, the possession of the vehicle would be
restored in favour of the seller (Zia -ud-Din). Therefore, the decree is to be executed within the
ambit of the order, and the decree made by the court. Though a court while entertaining an
application filed for the purpose of execution of decree can adopt any mode provided in the Civil
Procedure Code, on the request of decree -holder to satisfy a decree, the choice rests with a
decree -holder. But, no order can be made in contravention of the law, and the provided
procedure.
16. Order XXI, C.P.C. provides complete procedure required to be adopted by a court, while
dealing with an application filed for execution of a decree. But, in present case court below failed
to adopt the procedure provided therein, rather seemed to be bent upon to satisfy the decree in
either way without even going through the relevant provisions of law. In present case the decree
was in terms of money, there fore, the Order XXI, Rule 30, C.P.C. will he relevant, which
describe the mode of execution of such a decree. It reads as under: ---
"Order XXI Rule 30. Decree of payment of Money ---Every decree for the payment of
money, including a decree for the payment of money as the alternative to some other relief, may
be executed by the detention in prison of the judgment -debtor, or by the attachment and sale of
his property, or by both."
Order XXI, Rule 32 describes the mode for execution of decree for sp ecific performance,
which reads as under: ---
"Order XXI, Rule 32, C.P.C. Decree for specific performance, for restitution of conjugal
rights, or for an injunction. --- (1) Where the party against whom a decree for the specific
performance of a contract, or for restitution of conjugal rights, or for an injunction, has been
passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the
decree may be enforced in the case of a decree for restitution of conjugal rights by the
attachment of his property or, in the case of a decree for the specific performance of a contract or
for an injunction by his detention in prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific perfor mance or for an injunction has
been passed is a corporation, the decree may be enforced by the attachment of the property of the
corporation or with the leave of the Court, by the detention in prison of the directors or other
principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub -rule (1) or sub -rule(2) has remained in force for one
year if the judgment -debtor has not obeyed the decree and the decree -holder has applied to have
the attached property sold, such p roperty may be sold; and out of the proceeds the Court may
award to the decree -holder such compensation as it thinks fit, and shall pay the balance (if any),
to the judgment -debtor on his application.
(4) Where the judgment -debtor has obeyed the decree a nd paid all costs of executing the
same which he is bound to pay, or where, at the end of one year from the date of the attachment,
no application to have the property sold has been made, or if made has been refused, the
attachment shall cease.
(5) Where decree for the specific performance of a contract or for an injunction has not been
obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that
the act required to be done may be done so far as practicable by the decree -holder or some other
person appointed by the Court. At the cost of the judgment -debtor, and upon the act being done
the expenses incurred may be ascertained in such manner as the Court may direct and may be
recovered as if they were included in the decree."
17. In addition thereto section 60, C.P.C. described the properties, which can be attached, and
sold during course of execution of a decree. Therefore, the mentioned Rules, and the section are
to be read cojointly.
18. In present case the cou rt below without going into the relevant provision, adopted the
course, which was not in conformity with the given procedure, thereby committed an error. In
case in hand the trial court may have put on notice the judgment -debtors for performance of their
part, or take steps for attachment and sale of the property owned by them (judgment -debtors) or
may have arrested them. But, it was not done, rather only an order was made for taking into
custody of the vehicle. No order for attachment was made, nor any pro cess to the effect was
issued. Furthermore, before issuing any process for attachment, and sale of a property, the court
must satisfy itself that the property which was made subject to the execution must belong to a
judgment -debtor or over which he has pow er to dispose it of, or which is held in the name of
judgment -debtor, or with any other person in trust for him, or on his behalf. Therefore, only
those properties covered within the described categories shall be made subject to execution for
purpose of at tachment, and sale. Further, the procedure provided in Order XXI, C.P.C. required
to be adopted for attachment of property, and for its sale during course of execution .
19. But, in present case the vehicle, which was taken in custody though existed in t he name
of the decree -holder, but was in possession of a person admittedly not a judgment -debtor in the
proceedings. Further, the fact was neither established, nor even asserted by the decree -holder that
the appellant Shabbir Ahmed was in custody of the ve hicle on behalf of the judgment -debtors.
Above all, the trial Court though ordered for taking the vehicle into custody, but there was no
order for attachment of the vehicle for purpose of execution. The court below treating the matter
as of criminal, order ed for confiscation of the vehicle, which was not only improper, but an
illegality on its part. Rather, in the circumstances a proper order for attachment of the property as
required by Rule 40 of Order XXI, C.P.C. was to be made, thereby the vehicle can b e attached
for purpose of execution of the decree. But it was not done. Therefore, in view of the narrated
facts as there was no order for attachment of the vehicle, therefore, only taking over possession
of the vehicle by the Police would not serve the pu rpose, nor amounts to an order for attachment
of property. Rather, it only amounts to deprive the appellant (Bashir Ahmed) from his right to
remain in possession of the vehicle, as he was neither the judgment -debtor, nor he was bound by
the agreement for r estoration of its possession.
20. The court below conducted proceedings without adopting the due course, thereby
committed illegality, therefore, the orders made in contravention of law are of no legal effect.
Therefore, the restoration of possession of the vehicle to the appellant Shabbir Ahmed was not
against the law in the circumstances.
21. As far as the application under section 12(2), C.P.C. is concerned the appellant Shabbir
Ahmed though not party to the suit, but can avail the remedy provided in the section being
included in the term "person". But, he failed to make out a ground of fraud or misrepresentation
or want of jurisdiction, because he was only aggrieved from taking of custody of the vehicle
from him, in fact he had not questioned the tra nsaction held between the decree -holder, and the
judgment -debtors. Further, he was not claiming any right accrued to him during the course, but
affected by the judgment and decree passed in the questioned transaction. Therefore, filing of the
application w ithin the meaning of section 12(2), C.P.C. was not the remedy available to him in
the circumstances. Rather, he can approach the court executing the decree by way of filing
objections under Rules 58 to 72 of Order XXI, C.P.C. In view of the same the applic ation filed
by him was rightly rejected by the court below, but with wrong reasons.
22. In view of the above discussion, as there was no order for attachment of the vehicle,
therefore, mere taking into custody of the vehicle by the Police was of no legal effect. The
possession was rightly restored to the appellant Shabbir Ahmed. The decree -holder Zia -ud-Din
can pursue with his application for execution of decree within the terms in which decree stands.
Both the orders dated 5th December, 2005 and 6th Marc h, 2006 passed by Civil Judge -II, Quetta,
need no interference of this court, with above observations.
23. But, it is noted with concern that the way in which the proceedings were dealt with by the
court below was in complete negation of the provided procedure. It is advisable for the court
below to educate itself with the relevant law, and while dealing with a n application for execution
of decree adopt the procedure provided under Order XXI, C.P.C., and also kept in sight the
provisions of sections 36 to 74, C.P.C., and adopt the course permitted in the circumstances. A
decree -holder is entitled for execution o f decree in his favour, but while dealing with the matter
no order be made beyond the terms in which the decree stands. Same would be the case in the
present case, the decree in field is to be executed, and satisfied in terms in which it stand, but by
adop ting the procedure, and the course provided for the purpose in the law.
Both the appeals i.e. Civil Miscellaneous Appeal No.26 of 2005 and Civil Miscellaneous
Appeal No.3 of 2006 are hereby disposed of in the above terms, with no order as to costs.
SAK/52/Q Order accordingly.This 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,
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