' Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have challenged that the order dated 19.04.2012 passed by learned Additional District Judge, Faisalabad by virtue of which the appeal filed by Respondent' No, 1 was accepted and objection petition filed in executing petition of the petitioner was ordered to be sustained.
2. Brief facts for disposal of this writ petition are that a suit for recovery of maintenance was filed by the petitioner against Respondent No, 2 which was decreed vide judgment dated 05.7.2006 by the learned family Court. The petitioners feeling themselves dissatisfied filed 'an appeal before the appellate Court which was contested by Respondent No,
2. The appellate Court after hearing the parties accepted the appeal vide judgment dated 08.1.2007 by modifying the judgment and decree of the Family Court and the Petitioners No, 2 and 3 were held entitled to have maintenance allowance'from the respondent @ Rs, 2500/- per month from the date of institution of suit with an increase of 25% after every three years. Petitioner No, 1 was held entitled to receive the maintenance allowance @ Rs, 1500/- per month also from the institution of suit till she is divorced.
The judgment and decree passed by the appellate Court was assailed by Respondent No, 2 in' W.P.
No, 2257/2007 before this Court. After the dismissal of the writ petition tip, petitioners filed execution petition on 28.2.2007 against Respondent No,
2. They also filed an application dated 19.12.2007 for restraining Respondent No, 2 from alienating his share in the property bearing House No, 2 street No, 4, Hajweri Town, Shadman road Faisalabad along with his landed property described in the said application. The learned executing Court issued stay order restraining Respondent No, 2/judgment debtor from alienating his property vide order dated 19.12.2007. Respondent No, 2/judgment debtor did not appear to execute the decree, therefore, the above referred property vide order dated 29.10.2010 was attached and a report of Bailiff dated 04.11.2010 was submitted before the Court regarding the attachment of the property. Further, non bail-able warrants of arrest were also issued against Respondent No, 2.
3. On 10.11.2010, Respondent No, 1 filed an objection petition for setting-aside order. Dated 29.10.2010 of the attachment of the property detailed therein. It was asserted by Respondent No, 1/objector, that he filed suit for specific performance of agreement to sell dated 08.8.2007 regarding constructed house measuring 2M-5S bearing Khasra No, 21/1, Square No, 7, Khewat No, 6501, Khatooni No, 8529 situated at Chak No, 122 J.B (Noor Pur), Tehsil City, District Faisalabad against Muhammad Akram, Respondent No,
2. According to him the suit was dismissed by the trial Court vide judgment and decree dated 19.5.2008 which was assailed in appeal by Respondent No;.1/objector and the appeal was decreed on 18.12.2008. It was asserted in the said application that the execution petition for execution of the sale-deed is pending before the Court. It was submitted that he being the decree holder was entitled to have the fruits of said decree and the said property cannot be attached in the execution of decree for maintenance passed .In favour of the petitioner. The present petitioners contested the objection petition by submitting their written reply'. It was asserted that the objector is brother-in-law of the judgment debtor Muhammad Akram and being in league with him has tried to frustrate the decree passed by the family Court in favour of the petitioner. The learned executing Court dismissed the objection petition filed by Respondent No, 1 vide order dated 01.12.2010. The appeal filed by Respondent No, 1 against the said order was allowed by learned Additional District Judge, Faisalabad judgment dated 19.4.2012 which is impugned in this writ petition.
4. I have examined the entire record of the case with the able assistance of the learned counsel for the petitioner.
5. The relevant Paragraph of the learned appellate Court is reproduced as under: "Perusal of record reveals that decree passed in favour of appellant by the competent Court of learned Addl: District Judge while accepting the appeal is an admitted, fact. Further perusal transpires that order for attachment of property was passed later in time when the judgment and decree dated 18.12.2008 was already in field, passed in favour of appellant/objection petitioner and this decree was passed on the basis of agreement to sell dated 08.8.2007 although on filing of objection petition learned executing Court has to investigate and enquire into status of title or claim of objection petitioner over the property under attachment but trial Court while deciding objection petition has altogether ignored judgment and decree dated 18.12.2008 passed in favour of the objection petitioner. Even if the order of learned Judge Executing Court remains in field even then attachment and auction of this property may not be effected in presence of judgment and decree in favour of the objection petitioner. A decree in favour of objection petitioner gives him title over the property whereas objection may be sustained on the basis of claim by which the person having objection-has any claim over the property. Therefore, order dated 01.12.2010 passed for dismissal of objection petition is not maintainable in eye of law hence the same is set aside and appeal is accepted. Resultantly, objection petition filed by appellant is sustained. Copy of this judgment be sent to the learned trial Court immediately. File be consigned to record room."
(Underline is mine)
6. It is noted with great concern that the suit for maintenance allowance filed by the petitioner was decreed by the family Court on 05.07.2006, the appeal was allowed vide judgment and decree dated 08.1.2007 and the executing petition was filed against Respondent No, 2 on 28.2.2007. Then on the application of the decree holders, the Respondent No, 2 was restrained to alienate the disputed property vide order dated 19.12.2007. Then allegedly an agreement to sell dated 08.8.2007 was executed by Respondent No, 2 in favour of Respondent No,
1. The suit for specific performance was filed on 03.1.2008 which was dismissed by the Civil Court however, the appeal filed by Respondent No, 1 was accepted vide ex-parte judgment and decree dated 28.12.2008.
7. Undeniably, the alleged agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of Respondent No, 1 are all subsequent events to the decree of maintenance allowance passed in favour of the petitioner. I am of the considered opinion that Respondents No, 1 and 2, closely related, in connivance with each other have tried to frustrate the decree of maintenance allowance passed in favour of the petitioner. Any agreement to sell executed by the judgment debtor regarding his property after the decree passed against him is illegal and unlawful and does not create any right in favour of the subsequent/alleged purchaser. I am fortified by the judgment of the Hon'ble Supreme Court in a case reported as Muhammad Sadiq vs. Dr. Sabira Sultana [2002 SCM R 19501. In the said case, suit for recovery of maintenance was decreed on 23.12.1998 and the property of the judgment debtor was attached on 14.4.1999 whereas the objector claiming to be a vendee under an agreement dated 30.6.1998 filed an objection petition against the property. It was held by. The Hon'ble Supreme Court as under: "We have heard the learned counsel for the petitioner at length. We find that there is no evidence on record to prove the genuineness and authenticity of the alleged agreements to sell dated.
10.10.1996 and 30.6.1998 purported to have been executed by the judgment-debtor and by Muhammad Ashraf respectively in respect of the sale of the attached property. The sale-deed was allegedly executed on 02.6.1999 after the attachment of the property in dispute. Therefore, the sale- deed dated 02.6.1999, even if executed, was rightly held, by all the Courts, to be invalid. The judgments relied on by the learned counsel in his behalf are not applicable to the facts and circumstances of the case." (Emphasis provided)
8. In the present case the agreement to sell was allegedly executed on 08.8.2007 and before' filing of civil suit by the petitioner, a stay order was passed by the executing Court against the Respondent No, 2 whereby he was restrained from alienating his property i.e the disputed property.
The sale-deed in favour of the petitioner has not been executed so far and decree in favour of the petitioner is result of fraud and connivance which cannot be allowed to be made a tool to .
Frustrate the judgment and decree of maintenance allowance passed in favour of the respondents. The learned appellate Court has failed to apply its judicious mind while passing the impugned judgment.
9. Resultantly, this writ petition is allowed and the judgment dated 19.04.2012 passed by the learned Additional District Judge, Faisalabad is set-aside.