The respondent has filed a suit for maintenance against her husband, Dawood Abdul Khaliq on 25- 3-1997 which had been decreed by the learned Judge, Family Court on 23-12-1998. After passing the decree the respondent had filed an execution petition in trial Court on 18-1-1999 and on 14-4- 1999, the learned Executing Court passed an interim order for attachment of the property of the judgment-debtor and in compliance of the order of the Executing Court, the Property No.36, Khayaban-e- Faisal Colony, Airport Link Road, Chaklala, Rawalpindi had been attached by the bailiff on 28-4-1999 on a warrant of attachment issued by the learned Executing Court on 23-4-1999. The Executing Court had passed the order for auction of the attached property measuring 2 Kanals, 8 Marlas out of 2 Kanals, 15 Marlas situated in Khayaban-e-Faisal, Airport Link Road, Chaklala, Rawalpindi vide his order dated 12-5-2000 under the impression that the attached property belonging to the judgment-debtor Dawood Abdul Khaliq.
2. The petitioner when came to know about the auction of the property in execution of the decree of Family Court, had filed an objection petition on 19-5-2000 before the Executing Court alleging therein that Dawood Abdul Khaliq had entered into an agreement to sell regarding the property measuring 2 Kanals, 15 Marlas on 10-10-1996 with one Muhammad Ashraf for a consideration of Rs.18,00,000 and the possession of the property had been delivered to the vendee after receipt of the whole consideration amount. Subsequently, Muhammad Ashraf had made an agreement to sell of the said property with the present petitioner on 30-6-1998 for a consideration of Rs.22,00,000.
The whole consideration had been paid by the petitioner to Muhammad Ashraf and the possession of the property in dispute had been delivered to the petitioner on the same day. The only formality left behind was the execution and registration of formal sale-deed which was promised to be executed by Muhammad Ashraf within six months i.e. till 31-12-1998 after obtaining the power of attorney from Dawood Abdul Khaliq who is residing in England.
3. Muhammad Ashraf had not executed the sale-deed in favour of the petitioner within the stipulated time due to one reason or the other and the petitioner had filed a suit for specific performance against Muhammad Ashraf and Dawood Abdul Khaliq on 2-3-1999 in the Court of Civil Judge 1st Class, Rawalpindi and the learned trial Court vide order, dated 3-3-1999 issued an injunctive order restraining the respondents from transferring the subject-matter of the suit. During the pendency of the suit, Muhammad Ashraf had obtained power of attorney from Dawood Abdul Khaliq and executed the sale-deed in favour of the petitioner on 2-6-1999 and thereafter the suit filed by him became infructuous.
4. The objection petition filed by the petitioner had been dismissed by the Executing Court on 31-7- 2000 observing that the sale-deed dated, 2-6-1999 was void as it had been executed after the date of attachment. The said order of the Executing Court had been challenged by the petitioner through an appeal which came up for hearing before Additional District Judge, Rawalpindi and the Appellate Court vide its judgment dated 4-11-2000 dismissed the appeal. Thereafter, the Executing Court had announced the schedule of auction of the property in dispute. Both the order of Executing as well as Appellate Court has been assailed through the instant revision petition by the petitioner.
5. Learned counsel for the petitioner contended that the judgment-debtor had transferred his property to Muhammad Ashraf vide agreement to sell and thereafter Muhammad Ashraf had sold the property vide agreement to sell to the petitioner and the judgment-debtor had ceased to be the owner of the attached property. Further contended that the Executing Court while attaching the property has violated the provision of Order 21, rule 54, C.P.C. Further contended that no copy of the attachment order had been affixed on a conspicuous part of property or on the conspicuous part of the Court. He contended that without performing the provisions of Order 21, rule 54, C.P.C, the attachment of property by the Executing Court is illegal. Reliance is placed on the case of Noor Muhammad v. Mst. Zainab Bibi and others 1992 CLC 1470; Monoharlal Banerjee v. Bengal Immunity Co. Ltd. and another AIR 1945 Cal. 308; T.K.P.L.M. Muthiah Chetti v. Palanippa Chetti and others AIR 1928 PC 139, Lakhmichand v. Amirchand AIR 1932 Sind 164, Mohiuddin Molla v. The Province of East Pakistan and others PLD 1962 SC 119. Further contended that the contract of sale with regard to the attached property, the suit for specific performance of contract did not effect the rights acquired.
Reliance is placed on the case of Madan Mohan De Sarkar and others v. Rebati Mohan Poddar and others AIR 1916 Cal. 927.
6. On the other hand, the arguments of the learned counsel for the petitioner have been opposed vehemently by learned counsel for the respondents by contending that attachment of property had been made on 28-4-1999 and the agreement to sell in favour of Muhammad. Sadiq present petitioner on behalf of Muhammad Ashraf had been executed on 30-6-1998 and that agreement to sell dated 10-10-1996 on behalf of Dawood Abdul Khaliq judgment-debtor in favour of Muhammad Ashraf is ante-dated because at that time the judgment-debtor was out of country and resident of U.K. Further contended that the whole story narrated by the petitioner has been maneuvered just to deprive of the decree-holder, the respondents of the fruits of the decree. He further contended that the property in dispute was registered after the attachment of the property.
Therefore, it has no effect on the attachment by the Court. He further contended that the bailiff had performed the requirement of Order 21, rule 54, C.P.C. and if the office copy of notice did not indicate that proclamation was made by beating of drum but merely because there was no beating of drums would not render the attachment invalid. Reliance is placed on the case of Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation and another 1992 CLC 1323. The judgment-debtor did not turn up to Pakistan during the pendency of the suit and execution proceedings. The only object of rule 54 providing attachment is to give notice not only to the judgment-debtor but also to public not to accept any alienation from him. The petitioner when came to know about the attachment of the property and again for sale of the same had approached the Executing Court. Further contended that the petitioner has not been able to prove on record by producing the copies of the interim order of the Executing Court to substantiate his objection for non-compliance of the Order .21, rule 54, C.P.C. He further contended that the provisions prescribed in rule 54 are not mandatory and their breach does not vitiate the sale.
Reliance is placed on the case of State Life Insurance Corporation of Pakistan v. Dr. A.M.J. Shirazee and 9 others PLD 1983 Kar. 112, Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337. He further contended that there is a concurrent finding of fact which cannot be challenged in revision.
Reliance is placed on the case of Chiranji Lal and others v. Ramji Lal and another AIR 1939 Lah. 285, Lachman Singh v. Firm Dasuandhi Ram Babu Ram AIR 1938 Lah. 16 and Muhammad Akbar Khan v.
Mian Musharaf Shah and another AIR 1934 PC 217. He further contended that the present petitioner is real brother of the judgment-debtor and Muhammad Ashraf is also brother-in-law and sale of disputed property by judgment-debtor amounted to dishonest transfer of property to save it from imminent attachment and sale. Reliance is placed on the case of Zeal Pak Cement Factory Ltd. and another v. Farid Enterprises and 3 others 1993 M LD 654. He further contended that the objector during the proceedings has not proved that he has acquired the title in good faith for consideration. He further contended that the transfer was collusive and was made to deprive the decree-holder from the recovery of decretal amount. Reliance is placed on the case of Habib Bank Limited v. Messrs Ajma Corporation and others 2000 CLC 1425; Messrs Ashrafi (Private) Ltd. through Managing Director Sharafat Ali Abbasi v. Abdul Majeed Bawany through L.Rs. 1991 M LD 1101 and Messrs Ashrafi (Pvt.) Ltd. and another v. Messrs Karachi Transport Syndicate Ltd., Karachi and another PLD 1973 Note 119 at p.184.
7.
7. I have heard the arguments of the learned counsel for the parties and perused the record. It is an admitted position that the judgment-debtor Dawood Abdul Khaliq, the husband of decree- holder is residing out of Pakistan and he did not appear in the Court during the proceedings in a suit for maintenance allowance. His real brother Muhammad Sadiq present petitioner had been pursuing the suit and he himself appeared as D.W.2 in the Court. It means that the proceedings of the suit for