1. ATIR MAHMOOD, J.--- The petitioner through the instant constitutional writ petition has challenged judgment dated 13-11-2012 passed by learned Additional District Judge, Bhalwal, District Sargodha who dismissed the appeal of the petitioner and maintained order dated 23-6-2012 passed by learned executing court, Bhalwal whereby the application of the petitioner for deposit of decretal amount of Rs.75,000 in lieu of setting aside auction proceedings was dismissed.
2. 2.Brief facts of the case are that respondent No.1 Mst. Fatima Bibi on 26-9-2009 filed a suit for recovery of maintenance and delivery expenses against respondent No.2 Khizar Hayat which was ultimately decreed by learned Judge, Family Court, Bhalwal, District Sargodha vide judgment and decree dated 18-3-2010. The appeal preferred thereagainst by respondent No.2 was dismissed by learned Additional District Judge, Bhalwal, District Sargodha vide judgment and decree dated 20- 12-2010. On 24-2-2011, respondent No.1 filed a petition for execution of the decree against respondent No.2. When respondent No.2 did not appear before the court despite issuance of summons, his warrants of arrest were issued whereupon respondent No.3 Salabat entered appearance before the court on 7-1-2012, got recorded his statement and also submitted surety bond of Rs.75,000 coupled with his affidavit. Thereafter, respondent No.2 did not appear before the executing court, as such, the property of respondent No.3 being surety was attached by the court for recovery of the decretal amount vide order dated 10-12-2011. On 14-4-2012, the petitioner filed an application for recalling of the said order with the assertion that he is bona fide purchaser of the property intended to be sold through auction from respondent No.3. Thereafter, the petitioner also filed application on 23-6-2012 seeking permission to deposit the decretal amount with the court praying that the auctions proceedings be stopped. The application of the petitioner for permission to deposit the decretal amount was dismissed by learned executing court vide order dated 23-6- 2012. Feeling aggrieved, the petitioner filed appeal which was dismissed vide judgment dated 13-11- 2012 by learned Additional District Judge, Bhalwal, District Sargodha. Hence this writ petition.
3. 3.Learned counsel for the petitioner inter alia contends that the petitioner is a bona fide purchaser without notice from respondent No.3; that the petitioner before purchase of the property inspected revenue record but there was nothing barring anybody to purchase the property of respondent No.3 nor there was mention of court proceedings nor any stay order was recorded therein, therefore, the petitioner remained unaware of the court proceedings regarding the property; that despite the fact that the petitioner is neither the judgment-debtor nor his surety and that the auction proceedings were initiated at his back, he is ready to deposit the decretal amount of Rs.75,000 to discharge the liability of the surety; that the impugned order and judgment passed by learned courts below are against law and fact as they have not taken into consideration the bare fact that the petitioner is not at fault in any manner, therefore, he should not be penalized for the acts committed by others. He prays that this writ petition be allowed, the impugned order and judgment passed by learned courts below be set aside, the petitioner be allowed to discharge the liability of the surety of Rs.75,000 and order of auction of the property in question be set aside.
4. 4.On the other hand, learned counsel for respondent No.2 has opposed this writ petition on the ground of maintainability asserting that this writ petition is against an interim order passed in an application and objection petition of the petitioner is still pending before the executing court.
5. Learned counsel for respondents Nos.1 and 4 contests this writ petition by stating that respondent No.4 has purchased the property through auction. He has further contended that the petitioner was well aware of the auction proceedings and that he has purchased the property in question in connivance with the revenue officials, therefore, this writ petition be dismissed.
6. 5.I have heard the arguments put forth by learned counsel for the parties and also perused the record made available before me.
7. 6.Undisputedly, the decree was passed against respondent No.2 Khizar Hayat in a suit filed by respondent No.1 Mst. Fatima against respondent No.2. After dismissal of appeal filed by respondent No.2, respondent No.1 filed execution petition wherein respondent No.2 did not appear despite issuance of warrants of arrest rather respondent No.3 Salabat put appearance before the court and took the responsibility of payment of the decretal amount of Rs.75,000 by submitting surety bonds on 26-3-2011. He also filed his affidavit and got recorded his statement on 7-1-2012 to the effect that he will pay the decretal amount in case he is unable to produce judgment-debtor respondent No.2 before the court and that the court may recover the decretal amount by auction of his property. Succinctly, respondent No.2 did not appear before the court and the property of respondent No.3 was attached and put to auction which was purchased in the auction by respondent No.4, however, neither the auction has still been confirmed nor sale certificate issued nor the possession of the property is handed over to the auction-purchaser, i.e. respondent No.4.
8. This is the case of the petitioner that he is a bona fide purchaser of the disputed property without notice. There is no denial to the fact that at the time of purchase of property by the petitioner from respondent No.3 Salabat vide Mutation No.841 sanctioned on 12-4-2012, there was nothing in the revenue record regarding proceedings of the court. The record also did not contain anything to suggest that there was any bar on purchase/transfer of the property. Though the learned counsel for the respondents have asserted that the petitioner was in knowledge of the attachment and auction proceedings prior to purchase of the property, therefore, he deserves no leniency, however, they could not bring in light anything from the record in support of their assertion. Mere levelling allegation of connivance on the part of the petitioner with the revenue officials without any substantial proof is of no consequence. In the circumstances, I am of the considered view that the petitioner is a bona fide purchaser of the property and is protected under section 43 of the Transfer of Property Act, 1882.
9. 7.So far as the liability of the petitioner is concerned, the surety was given by respondent No.3 namely Salabat on account of payment of decretal amount on 7-1-2012. It is pertinent to mention here that at that time, decretal amount due against respondent No.2, i.e. judgment-debtor was only Rs.75,000 which is even mentioned in the warrants of arrest issued against the judgment- debtor. Therefore, respondent No.3 being the surety was liable to pay the decretal amount to the extent of Rs.75,000 only for which he gave the surety. By no stretch of imagination, he can be held responsible for the decretal amount accumulated on account of non-payment of decretal amount by the judgment-debtor thereafter. Since the petitioner has stepped into shoe of respondent No.3 by purchasing the property from him, he can be held responsible for the amount due against respondent No.3 only. I am not convinced with the argument of learned counsel for the respondents that the petitioner should pay the amount of the decree due against judgment- debtor till today because the petitioner, in my view, having been stepped into shoe of the surety is liable to pay what was due against the surety.
10. 4.Both the learned courts below have dismissed the application of the petitioner on the basis of the statement made by the surety Salabat before the court on 7-1-2012. The statement is reproduced below:--- From the above statement, it is not proved that the surety undertook to pay the future liability of the judgment-debtor rather he declared to pay the decretal amount due against the judgment- debtor at that time. The decretal amount at that time was undeniably Rs.75,000 which fact is evident from the warrants of arrest as well as the surety bond furnished by respondent No.3. In the circumstances, respondent No.3 cannot be held for future liability of judgment-debtor. Same is the case with the petitioner who has stepped into shoe of respondent No.3, i.e. surety. In this view of the matter, the impugned order and judgment passed by learned courts below are not in consonance with the law.
11. 9.The contention of learned counsel for respondent No.2 that the writ petition being against an interim order is not maintainable is misconceived as the application of the petitioner for deposit of the decretal amount has been dismissed finally by learned courts below and the writ petition in no way can be considered against an interim order. It is observed that it is the respondent No.2 who is the judgment-debtor and is liable to pay the decretal amount and wants to shift his liability upon the petitioner by making him a scapegoat which cannot be allowed.
12. 10.For what has been discussed above, this writ petition is allowed, impugned judgment dated 13- 11-2012 passed by learned lower appellate court as well as order dated 23-6-2012 passed by learned executing court are set aside, the application of the petitioner for deposit of decretal amount of Rs.75,000 is allowed and the auction proceedings of the property in dispute are set aside. It is, however, made clear that the decree-holder may proceed against judgment-debtor for recovery of the remaining decretal amount due against him in accordance with law.