ASIM HAFEEZ, J. This Civil Revision is decided along with connected Civil Revision No.1138 of 2013, titled "Rao Muhammad Rafiq v. Pir Saleem ud Din, etc.", having overlapping issues, and impugning consolidated order dated 26.01.2013 of learned appellate court, in terms whereof appeals filed against decision dated 27.09.2011, of learned executing court, were dismissed. In terms of order dated 27.09.2011, learned court, executing the decree, dismissed the objections qua the executability of the decree and challenging auction of attached decree.
Relevant Facts.
2. Subject-matter proceedings arose in the backdrop of judgment and decree dated 28.03.1998 (a money decree for Rs.2,109,000/-) favouring respondent No.1 and against the petitioner. Respondent No.1 sought enforcement of the decree, and during the proceedings some settlement, subject to the conditions agreed through written document dated 25.01.1999, was arrived at and consequently execution was withdrawn by the petitioner. After some time, resurrection of execution application was sought, wherein respondent No.1 alleged non-performance of the conditions.
Petitioner had bagged decree dated 20.06.1998 - in a suit for specific performance of agreement relating to land measuring 96-Marla 6-Sarsai, wherein respondent No.4 [petitioner in C.R.
No.1138/20131 was the judgment debtor of attached decree. Respondent No.1 sought attachment of decree dated 20.06.1998, which was attached on 21.09.2007. And attached decree was ordered to be sold vide order of 26.10.2007. Later, attached decree was put to auction, but it remained unsuccessful. Lately, respondent No.1 - decree holder and claimant of attached decree - filed application to participate in auction and claimed set-off against deposit of bid. Auction, wherein reserve price of attached decree was fixed at Rs.500,000/-, was conducted and respondent No.1 was declared highest bidder, against bid offered of Rs.745,000/. Petitioner filed objections.
Judgment debtor of the attached decree filed application under section 12(2) of the Code of Civil Procedure 1908, to challenge the attached decree. Objections and application were dismissed on 27.09.2001, which order was maintained by the appellate court vide order of 26.01.2013. Hence, civil revisions at hand.
Submissions.
3. Learned counsel for the petitioner primarily argued against the executability of the money decree, claiming that settlement reached on 25.01.1999 was fulfilled, and properties committed therein were transferred - which included agricultural land and residential house. Submits that execution could not proceed in wake of implementation of settlement. Adds that not only the money decree dated 28.03.1998 was satisfied but another decree dated 23.06.1993 - involving agricultural land measuring 81-Kanal 16-Marla - was also satisfied during the pendency of R.F.A.
No.202/93. Further submits that requirements of Order XXI, Rule 53 of Code of Civil Procedure 1908 (C.P.C.) were not performed and even otherwise attached decree was not saleable through auction. Lastly submits that property subject matter of attached decree was land measuring 96- Marla and same was sold at throw away price, without determining the value of the landed property - reserve price was fixed at Rs.500,000/- and bid offered by respondent No.1 was Rs.745,000/-. Submits that conduct of auction and judicial assessment of auction proceedings were materially defective.
4. Conversely, learned counsel for respondent No.1 submits that conditions of compromise were not fulfilled, which entitled respondent No.1 to seek resurrection of execution relating to unsatisfied money decree. Submits that agricultural land measuring 81-Kanal and 16-Marlas was not transferred to the respondents. Learned counsel for respondent No.1 stated that reserve price of attached decree was fixed after repeated failed attempts for the auction, and respondent No.1 was declared highest bidder amongst the competitive bidders. Learned counsel invited the counsel for the petitioner to demonstrate how, where and when the property measuring 81-Kanal 16-Marla was transferred to the petitioner.
5. Arguments heard. Record perused.
6. Learned counsel confronted petitioner's counsel to show any document establishing transfer of agricultural land, response was not forthcoming from the counsel for the petitioner. Submissions that money decree stood adjusted, satisfied, and performed, in the wake of conditional compromise of 25.01.1999, are misconceived.
7. Respondent No.1 has three decrees against the petitioner, details whereof are as follows; a) Decree dated 23.06.1993, in suit for specific performance by respondent No.1 against petitioner - relating to land measuring 81-Kanal 16-Marlas, wherein trial court ordered return of consideration amount of Rs.870,000/- R.F.A. No.202/93 was filed, during its pendency parties reached compromise dated 13.01.1999, whereby petitioner committed to transfer land measuring 81-Kanals 16-Marlas, to the respondent No.1 through sale deed. (First decree) b) Decree 'dated 07.03.1996, by way of dismissal of suit for possession filed by respondent No.1 against petitioner - relating to House No. 40, measuring 10-Marlas. Respondent No.1 filed R.F.A.
No.204/99, during its pendency parties reached compromise dated 13.01.1999, whereby petitioner committed to transfer House to the respondent No.1. (Second decree) c) Third decree was dated 28.03.1998, a money decree, subject matter of instant proceedings.
(money decree)
8. Petitioner represented that in terms of settlements dated 13.01.1999 and 25.01.1993, land measuring 81-Kanals 16-Marlas was decreed in favour of the respondent No.1 and others on 21.01.1999 in R.F.A. No.202/1993. Learned counsel for the petitioner argued that amount of Rs.870,000/-, plus interest, was paid and said decree allegedly stood satisfied. Order dated 21.01.1999 in R.F.A. No.2.02/1993 is examined, which is simplicitor order of withdrawal of R.F.A.
No.202/1993. Here lies the confusion. Petitioner's case was that decree dated 23.06.1993 - directing recovery of Rs.870,000/- from the petitioner - was adjusted upon payment of Rs.870,000/- with interest, which assertion is contrary to the compromise dated 13.01.1999, wherein petitioner agreed to transfer / alienate agricultural land measuring 81-Kanal and 16-Marlas to the respondent No.1, which condition had to be read in the context of settlements dated 13.01.1999 and 25.01.1999. Failure of the petitioner to transfer/ alienate 81-Kanal and 16-Marlas of land tantamount to fail to fulfil conditions of settlement dated 25.01.1999 qua the money decree of Rs.21,09,000/-, which entitled the respondent No.1 to seek resurrection and enforcement of the money decree. There arose a situation of default of settlement of 25.01.1999. The argument that money decree dated 28.03.1998 was not executable, by virtue of alleged settlement, fails.
9. Now coming to the objections regarding attachment of the decree dated 20.06.1998, and sale thereof. What is the nature of the attached decree? The attached decree is a non-money decree.
Petitioner's counsel failed to appreciate the scope, mandate, and legislative directions with respect to the non-money decrees, to which sub-rule (4) of rule 53 of Order XXI of C.P.C. applies -- money decrees are covered under sub-rule (2) of rule 53 of Order XXI of C.P.C. It is expedient to reproduce Rule 53 of Order XXI of C.P.C. here:- "Attachment of decrees.--(1) When the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made, --
(a) If the decrees were passed by the same Court, then by order of such Court, and
(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other to stay the execution of its decree unless and until--
(i) the Court which passed the decree sought to be executed cancels the notice, or
(ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.
(2) Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.
(3) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.
(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also by sending to such there Court a notice to abstain from executing the decree sough to be attached until such notice is cancelled by the Court from which it was sent.
(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.'
(6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force".
10. It is apparent from the order dated 26.10.2007 that all requirements of attachment of a non- money decree were fulfilled. The argument that attached decree cannot be sold is fallacious.
Attached decree was erroneously treated as money decree, which, in fact, was decree of specific performance [non-money decree]. And non-money decree is treated as a property and can be put to sale in accordance with the mandate of section 64 of C.P.C. Guidance is solicited from the decision of cases decided by the courts of pre-partition time. With reference to non-money decrees, relevant portion from the case of Sudarsan Poddar v. Manindra Chandra Pal (AIR 1932 Calcutta 80) is reproduced as: - "Now there are two ways of executing decrees obtained by a decree holder by attachment of other decrees passed by other Courts or by the same Court. Those two ways are indicated in O.21, R.53. If it is a money decree, and if the decree is one which is passed by another Court, then, by the combined operation of O.21, Rr. 53(1) and (2), the decree which is attached is not sold as a saleable property; the decree which is attached is executed in terms of sub.cl.(2) by realizing the net proceeds in satisfaction of the decree sought to be executed. If however the decree is not one for money, then sub.cl. (4) is attracted and the procedure laid down in sub. Cl. (4) has got to be followed, in other words, the attached decree is sold like any other saleable property. There cannot be much doubt, On the facts found, that the decree which was attached, at the instance of Sudarsan, was not a decree for money and that therefore the procedure adopted by him, namely that he sold the decree in execution proceedings like any other saleable property was the correct procedure under the law. That being so, it would appear that the sale cannot be set aside on the ground that the correct procedure had not been followed".
[Emphasis Supplied]
11. Money decree cannot be sold in execution and once such decree is attached the procedure provided under sub-rule (2) of Rule 53 of Order XXI of C.P.C. had to be followed. See Domi Lal Sahu and others v. Bijoy Prasad Singh and others (AIR 1932 PAT 349). The objection that requirements of Rule 53 of Order XXI, ibid, were not fulfilled is without any substance, which is hereby dismissed.
12. Now objections regarding irregularities in the conduct of auction, particularly allegation of ridiculously low and unrealistic reserve price of the decree - involving immoveable property worth more than the money decree, is taken up. Any effort by the court to ascertain the reserve price of attached decree - treated as a property for all intent and purposes - was conspicuous by its absence. Decree was put to auction against reserve price of Rs.500,000/-, with respect to landed property measuring over 96-Maria. The reserve price fixed showed absence of conscious effort in this behalf, causing prejudice to the petitioner. Conduct of auction of the decree, at much discounted price, coupled with the fact that respondent No.1 itself participated in the bidding process and claimed set-off, defies fairness, manifest arbitrary exercise and overlooking legal requirements for determining reserve price of the attached decree. There is no cavil that attached decree could be sold, as property, but court being the custodian of the rights of the judgment debtor was obligated to ensure lawful determination of the reserve price, ascertained through arranging evaluation of the attached decree, which essential acts were missing. Mere failed attempts to draw bidder at auction is not ground to auction attached decree at throw away price without considering the worth of the property and arranging its forced sale value (FSV). This Court believes that attached decree could have fetched more price, adequate to satisfy the money decree in full, and leaving some balance to the benefit of the petitioner. Both, pre-auction and post-auction proceedings are ripe with irregularities, causing substantial injury to the petitioner.
13. Consequently, auction sale of the attached decree dated 20.06.1998 and confirmation thereof are declared as illegal of no legal effect.
14. The case of the respondent No.4 - who is also a petitioner in C.R.No.1138/2013 - is that attached decree was not executable by the petitioner, hence, no question of its attachment arises for execution of the money decree submission is misconceived. Decree dated 20.06.1998 is intact and same is liable to attachment in terms of sub-rule (4) of rule 53 of Order XXI, ibid, hence, argument is misconceived and meritless. Even the petitioner in C.R.No.1138/2013 has no right to challenge the auction when decree against him - an attached decree - attained finality. Civil Revision No.1138/2013 is meritless and same is dismissed on merits, in wake of the reasoning extended.
15. In view of the aforesaid, this civil revision is partly allowed, orders impugned dated 27.09.2011 and 26.01.2013, to the extent of auction sale of the attached decree, under reference, and confirmation thereof in favour of the respondent No.1 are set-aside. Learned executing court shall, after notices to the parties, ascertain the FSV of the attached decree, fix ascertained price as reserve price and thereafter proceed with the auction sale, in accordance with the law and strictly adhering to the procedural requirements provided under C.P.C. Petitioner shall be at liberty to exercise the option of satisfying the money decree, if so advised.
Any observation herein shall neither prejudice the parties nor influence determination of the matter on merits. No order as to costs.