' MEHMOOD MAQBOOL BAJWA, J.---Dismissal of the objection petition made by the appellant (wife of judgment debtor, respondent No,2) in execution petition claiming right and interest in the property measuring 4-1/2 acres situated in Chak No,112 G.B, Tehsil Jaranwala, District Faisalabad vide order dated 21-7-2010 recorded by the learned Additional District Judge, Lahore prompted her to assail the vires of said order by way of present appeal.
2. Necessary facts resulting in preference of present appeal are that respondent No,1 instituted suit for recovery against respondent Nos.2 under order XXXVII of the Code of Civil Procedure, 1908 in which decree was granted by the learned trial Court for the recovery of Rs,10 lac as principal amount besides profit to the tune of Rs,50,000 per month from the date of loan till realization of decretal amount which judgment was assailed by filing Appeal No,287 of 2007 which was dismissed by this Court vide judgment dated 15-5-2008. Leave to appeal was sought by respondent No,2 but was declined by the honourable apex Court vide order dated 3-12-2008.
' The respondent No,1 being decree holder filed execution petition for satisfaction of decree but without any success. However, the judgment debtor (respondent No,2) was committed to prison due to non-satisfaction of decretal claim but was released after expiry of statutory period.
' On 30-10-2009, the respondent No,1, made application under section 47 of the Code of Civil Procedure, 1908 asserting that respondent No,1 being judgment debtor in order to frustrate the decree has alienated his holding in favour of appellant measuring 35 kanals and 9 marlas comprising of Khawat Nos.245, 249, and 263 situated in Moza Ramka Chatta, Chak No,112 G.B, Tehsil Jaranwala District Faisalabad vide Mutation No,2072 attested on 6-12-2008 and as such while adjudging the same as fraudulent transaction, land be attached and sold for the satisfaction of decree.
' On 23-1-2010, objection petition was filed by the appellant claiming proprietary rights in respect of the said land transferred in her favour by judgment debtor in lieu of dower as agreed at the time of marriage and as such sought the re-calling of 'order dated 15-1-2010 issuing direction for attachment of property which after calling written reply and preliminary investigation was dismissed vide order impugned.
3. Heard adversaries.
' The learned counsel for the appellant, at the very outset, while making reference to section 51 of the Code of Civil Procedure, 1908 (hereinafter called "Code") questioned the legality of order recorded by executing Court maintaining that the said provision provides the different modes for execution of decree and are to be utilized as mentioned. Submitted that prior to issuance of order for arrest, mode of attachment and sale of property was to be adopted suggested in section 51(b) of the Code. The violation, in the opinion of learned counsel for the appellant, makes such order nullity in the eyes of law. Arguing the merits of objection petition, it was submitted that appellant was transferred property by her husband (judgment debtor) to liquidate his liability to pay the dower agreed at the time of marriage and as such respondent No,2 being judgment debtor get no right or title, whatsoever, in the land and as such could not have been attached. Seeking help from the provision of Order XXI, Rule 59 of the Code, and referring to the word "must" used in it, it was argued that objection petition could not have been dismissed summarily as done by the learned executing Court which is against the spirit of Rule 59. Submitted that appellant got an absolute right to produce evidence in order to establish her claim and title and deviation as made by executing Court makes the order assailed illegal. Contended that while setting aside the order impugned, an opportunity be provided to the appellant to produce her evidence to establish her title by issuance of direction to learned executing Court to hold regular inquiry. Help was sought from the dictum laid down in "SHAHIDA PARVEEN v. SAEED MIRZA and another (1990 Civil Law Cases 938) and Messrs WOOL WAYS SHOP CUM OFFICE, CHANDIGARH and others v. CENTRAL BANK OF INDIA, CHANDIGARH and others (AIR 1990 PUNJAB AND HARYANA 92).
' Controverting the arguments, the learned counsel for the respondent No,1 maintained that transfer of land by respondent No,2 in favour of the appellant through mutation is not disputed.
However, while questioning the genuineness of transaction, it was argued that alienation is fictitious and fraudulent, made in order to frustrate the satisfaction of decree. In order to substantiate the arguments, while making reference to the certified copies of interim orders and Nikah Nama, it was submitted that certified copies of Nikah Nama (fourth leaf) clearly suggests that dower was fixed in cash and in lieu of that gold ornaments were entered which were given as is evident from entry in Column No,15 of Nikah Nama. Further submitted that the appellant and judgment debtor in collusion with each other by interpolation got the entry of land as dower in one leaf of Nikahnama in his custody but during the inquiry by the learned Executing Court, Secretary of Union Council brought the original record in which no such entry was made. Submitted that due inquiry was made by learned Executing Court and after that the appellant was not suited. Seeking help from the dictum laid down in "MIAN MUHAMMAD RAFIQ SAIGOL v. TRUST MODARBA THROUGH Trust Management Services (Pvt.) Ltd. (2003 CLD 646) and MIAN/ MUHAMMAD KHALID v. Messrs BANK OF PUNJAB and 2 others (2004 CLD 1243), it was argued that even otherwise it is not legal compulsion to hold an inquiry in each and every case.
4. Argument advanced at the instance of the appellant pleading violation of section 51 of the Code while committing the respondent No,2 to prison is not required to be adjudicated upon as it is not a moot point to be settled. The respondent No,2 being judgment debtor was sent to jail and released after statutory period and as such it is past and closed transaction. Even otherwise, same was neither agitated at the instance of aggrieved party at the relevant time and even now.
5. Coming to the moot point, one cannot dispute the provisions of Order XXI; Rules 59 and 60 of the Code with the provision of an inquiry in order to determine the claim of the objector regarding its interest, right and title in the property attached or to be attached. Same rule of law was expounded in "SHAHIDA PARVEEN v. SAEED MIRZA and another (1990 CLC 938) and "BANK OF PUNJABI LAHORE through Manager v. Raja AMEER KHAN and others "(2006 CLD 144) relied upon at the instance of appellant. Same enunciation was made in the case of MESSRS WOOL WAYS (AIR 1999 PUNJAB AND HARYANA-92.
6. I have also gone through the Ratio expounded in the Reports relied upon at the instance of respondent No,
1. In MIAN MUHAMMAD KHALID v. Messrs BANK OF PUNJAB and 2 others (2004 CLD 1243), the learned Division Bench of this Court has held at page 1246 as follows:-- "It does not mean that the learned Executing Court is under an obligation, in each and every case, to mechanically record the evidence of the objector and the objection petition must be decided after hearing the evidence. Of course the learned Executing Court had to see in individual cases as to whether particular case requires the recording of evidence or/ and that the objection petition has been filed frivolously, contumaciously and to delay the proceedings or it is a genuine application requiring the recording of evidence."
' Same rule of law was enunciated in another judgment of learned Division Bench of this Court in the case of "MIAN MUHAMMAD RAFIQUE SAIGOL's case (2003 CLD 646).
6A. In view of above settled proposition, the question for consideration is whether an inquiry was required to be conducted, if so, whether the proceedings conducted by learned Executing Court were sufficient to decide the fact in issue or still proceedings are to be initiated in order to reach a just conclusion.
' Decree was drawn up against the respondent No,2 on 20-6-2007, which was assailed by preferring appeal before this Court but without any success vide order dated 15-5-2008. Leave to appeal was declined by the honourable apex Court on 3-12-2008. Execution petition was filed on 23-6-2007 but the proceedings remained suspended till the conclusion of matter by the honourable Supreme Court of Pakistan.
' Copy of Nikahnama suggests that marriage between appellant and respondent No,2 was solemnized on 6-4-1993. It is an admitted fact that property was mutated by respondent No,2 in favour of the appellant vide Mutation No,2072 sanctioned on 6-12-2008, just after three days of the dismissal of Civil Petition No,913-L of 2008 declining to grant "leave to appeal".
' It also bears from the record that respondent No,1 (decree holder) made application under section 47 of the Code for adjudging the alienation in favour of the appellant as fraudulent transaction on 30-9-2009 upon which notice was issued to her who opted to remain absent despite issuance of process and appearance of judgment debtor. On 15-1-2010, order for attachment of property was 'made upon which petition for re-calling order dated 15-1-2010 (objection petition) was made by the appellant.
7. The learned Executing Court while proceedings on both the applications summoned the record of Union Council concerned in order to examine whether property transferred through mutation was mentioned in lieu of dower. It is to be noted that recital contained in mutation is totally silent regarding transfer of land in favour of the appellant as dower. Copy of Nikahnama alsa admittedly did not suggest any such stipulation and dower as per entr'y was cash and gold ornaments in lieu of that were given. It is not out of place to mention here that copy of Nikahnama produced at the instance of appellant suggests that property measuring 4-1/2 acres has been given in lieu of dower. In view of the matter, the learned Executing Court, summoned the A Secretary Union Council along with original Nikah Register Hafiz Muhammad Din, (Nikah Khawan and Registrar) as is evident from the certified copy of order, dated 14-5-2010 and it was observed that in the copy of Nikahnama (Part of Register), there is no such stipulation. Nikah Khawan also denied the insertion of said recital in his 'hand. Again the learned Executing Court issued direction to Secretary Union Council to produce copy of Nikahnama (fourth leaf) available in the record which was produced on 28-5-2010 and there was no such stipulation.
8. In view of the matter, undeniably inquiry was conducted by the referred to were carried out in the presence of counsel for the appellant learned Executing Court. It is to be noted that whole proceedings and no objection whatsoever, was made at the instance of the appellant regarding the mode and manner in which investigation was conducted by the Executing Court. Silence on her part at that time creates estoppal against her to agitate the matter. If the appellant was not satisfied with the mode and style of investigation, she could have agitated the matter drawing the attention of Executing Court in this regard. Participation of appellant in whole proceedings without objecting it clearly demonstrates that she was satisfied with the mode of investigation but table was turned on her behalf after passage of impugned order.
9. Even if it is presumed that land was given to the appellant in lieu of dower in .The year 1993, why the same was not mutated in her favour uptil 2008 and. Was alienated in her name just three days after dismissal of petition for leave to appeal.
10. Pursuant to above discussion, it stands established that inquiry was conducted by the learned Executing Court duly participated by appellant raising no objection to the mode and manner of investigation.
11. Facts narrated and discussed clearly demonstrate collusion between appellant and respondent No, 2 while alienating the property in favour of the appellant which transaction was fake, fraudulent and was entered upon in order to frustrate the execution of decree in favour of respondent No, 1.
Undeniably miseries of the litigant in fact starts after having the decree from a Court of law when devices are adopted in order to frustrate it by adopting different modes.
12. Viewed from which ever angle, no case has been made out at the instance of the appellant calling for interference and as such while endorsing the order impugned, appeal preferred by the appellant is dismissed but without any order as to costs.