JUDGMENT SYED SAJJAD HASSAN SHAH, J.---Saeed Ahmed, the petitioner has challenged the judgment and order dated: 29-3-2006 passed by learned Additional District Judge-VI Peshawar, whereby, the appeal filed by respondent against the judgment and order passed by learned Civil Judge/Executing Court Peshawar dated 24-3-2005 accepted the appeal and the proceeding of execution of decree was terminated.
2. Brief facts of the case are that the respondent Muhammad Farooq filed the Suit No.123/1 of 1994 seeking for the recovery of Rs.100,000, same was decreed with cost to the tune of Rs.5000. The respondent/decree holder filed the execution petition, the objection petition was filed against the execution of decree on 20-5-2005 prayed for the recovery of the decretal amount through sale or auction of the share of the judgment debtor in a house jointly owned by the parties. Learned Executing Court allowed the objection petition to recover the decretal amount from the sale proceed to be received by the auction of half of the share of the judgment debtor, however, the learned appellate Court accepted the appeal by way of impugned order set aside the judgment and order of the learned Executing Court, hence the present revision petition.
3. The learned counsel appearing on behalf of the petitioner contended that the learned appellate Court, while deciding the appeal has travelled beyond the jurisdiction vested under the law and also that the learned appellate Court while passing the order has not been considered the relevant provisions of law in its letter and spirit and thus, misdirected itself, while refusing to recovery of the decretal amount by auction of the house of the judgment debtor, thus, the order passed against the law, may be set aside.
4. As against this, the learned counsel for the respondent argued that there is no provision of law, whereby, the judgment debtor can ask the Court for auction of certain property. It lies within the domain of the learned Executing Court to recover the decretal amount by arrest and imprisonment of the judgment debtor or attachment and sale of his property. The learned appellate Court had legally bound to refuse to adopt the mode of auction suggested by the judgment debtor. The petition is not maintainable may be dismissed.
5. Arguments addressed by learned counsel for the parties considered and record carefully perused.
6. It is quite evident from the provisions contained in Order XXI Rule 30, that the decree for payment of money can be executed by detention in prison of the judgment debtor or attachment and sale of his property or by both. In the instant case the learned trial Court accepted the application of the judgment debtor/ petitioner for the auction of 1/2 share of his house which jointly owned by both the parties and further observed that no purpose would be served by detention of judgment debtor in prison, therefore, the share of the judgment debtor in the said house he auctioned and after recovery of decretal amount, the rest of the sale proceed be paid to the judgment debtor. Perusal of the record reveals that the share of the judgment debtor had already been mortgaged with the Indus Bank Limited as security for obtaining financial assistance to the tune of Rs.50,00,000 thus, the share in the house of the judgment debtor could not be subjected to sale and auction. Learned counsel for the petitioner when confronted with, he has frankly conceded to the effect that unless the loan so obtained by the judgment debtor could not be satisfied auction of the house can not he made, in presence of such encumbrance, therefore, in such circumstances the decree cannot be satisfied in the manner suggested by the judgment debtor, however, at this stage learned counsel requested for recovery of decretal amount by installments. In this respect Rule 11 of Order XX of the C.P.C. Reads as follows:--
(11) Decree may direct payment of installments.---(2) After the passing of any such decree the Court may, on the application for the judgment debtor and with the consent of the decree holder, order that payment of the amount decreed shall be postponed or shall be made by installments on such terms as to payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him, or otherwise as it thinks fit.
7. The request of the petitioner/ judgment debtor cannot be found favour for the reason that firstly the decretal amount not so heavy that it cannot be paid without installment, secondly that the litigation between the parties commenced in the year, 1979 as entered in column No.1 of the execution petition, the decree was passed in the year, 2002, but since then till now no further step has been taken for the payment of decretal amount. In this view of the matter the order of the payment by installment of the decretal amount neither legally justified nor equitable, therefore, the judgment and order passed by the learned appellate Court being not suffering from any legal defect, therefore, maintained.
8. This petition is, hereby, dismissed. No order as to costs.