1. ' MAMOON KAZI, J.---These two appeals, namely, High Court Appeal No,34/90 and High Court Appeal No,41/90, call in question the order passed by a learned Single Judge of this Court dated 11- 2-1990 granting an application filed by respondent No,1 under Order 39 rules 1 and 2, C.P.C. (C.M.A.
2. No,873/87) and also disposing of Execution Application No,48/85, restraining the appellant and respondent No,2 from taking any further steps towards completion of the transaction in regard to the case property namely House NoA/2-A(1) situated in Defence Housing Authority and further ordering that the said property which was purportedly under attachment under Order 38 Rule 5, C.P.C. Would he treated as attached under Order 21, rule 54, C.P.C.
3. ' Briefly stated, the facts of the case are that Pakistan International Airlines Corporation, respondent No,1 in this case, had filed an Execution Application (Execution No,48/85) for execution of a Foreign Decree obtained by it against respondent No,2. It is pertinent to point out that the property for the attachment whereof assistance of this Court was required in the Execution Application had been erroneously described as bearing No,21A-2. However, the property in question namely House bearing NoA-2/A (1) in the meanwhile was ordered to be attached under Order 38, rule 5, C.P.C.
4. Vide order of this Court dated 11-2-1986. According to another order passed on 6-2-1986 the order of attachment was to continue to remain operative. On 20-4-1986 another order was passed by the Court, according to which, the order of attachment earlier passed in respect of the said property was ordered to be withdrawn on a condition that the judgment-debtor namely respondent No,2 furnished security of Rs,85,23,401.50 within a period of three weeks from the date of the said order. Respondent No,2 was also permitted to seek amendment of this order in case he was able to furnish proper proof apart from satisfaction of the decretal amount. However, the judgment-debtor failed to furnish security within the specified time or even thereafter. Be that as it may, but the effect of non-furnishing of security was that the attachment order dated 11-2-1986 had attained finality. 'It is pertinent to point out that in the meanwhile an application (C.M.A. No, 770 of 1986) was filed by respondent No,2 requesting the learned Single Judge to amend its order dated 20-4-1986 and to withdraw the attachment order dated 11-2-1986 as respondent No,2 was prepared to furnish a personal guarantee of certain persons. This application was disposed of vide order dated 11-3-1987 in the following terms: "In view of the change of the number of the immovable property, objections filed by learned counsel for the judgment-debtor in relation to the previous property have become infructuous. The attachment, if any, in respect of the property already mentioned in the application stands vacated.
5. Learned counsel will, however, be at liberty to file fresh objections to the Execution Application, as amended, within a month."
6. ' Thereafter, as is evident from Annexure 'B' filed with the memo of appeal in H.C.A. No,41/90, an order was served on respondent No,2 erroneously informing him that the order of attachment dated 12-2-1986 had been recalled and vacated by the Court vide its order dated 11-3-1987. In the meanwhile C.MA. No,873/87 under Order 39, rules 1 and 2, C.P.C. Was filed by respondent No,1 before the learned Single Judge which was disposed of by the impugned order as already pointed out in this judgment.
7. ' It is pertinent to point out that during the pendency of the said proceedings respondent No,2 had entered into an agreement of sale in respect of the case property with the appellant, dated 4-2- 1986 and on 30-4-1987 a conveyance deed Was executed between the said appellant and respondent No,2 Shamim Ahmed and the property was transferred to the former.
8. ' Taking into consideration the aforesaid factual position the learned Judge rejected the objections filed on behalf of respondent No,2 or the said appellant as, according to him, the property in question had continued to remain under attachment vide order of the learned Single Judge passed under Order 38, rule 5, C.P.C. And apparently such attachment continued to remain in operation notwithstanding the order passed by the learned Single Judge dated 11-3-1987 and consequently by virtue of section 64, C.P.C. Even if assuming that the appellant and respondent No,2 had been misled by the said order dated 11-3-1987 which was communicated to respondent No,2 through an office order (Annexure B') the attachment was still legal, valid and subsisting and consequently the sale transaction in favour of appellant Syed Ashad Ali was held to be invalid.
9. Section 64, C.P.C., for the sake of reference, is reproduced as follows:-- "64. Private alienation of property after attachment to be void.---Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment."
10. ' We have heard Mr. Mohammad Sharif and Mr. Ahsan Zahecr Rizvi learned counsel for the appellants and Mr. Amirul Mulk learned counsel for the respondent No,1.
11. ' Mr. Mohammad Sharif, Advocate who addressed us on behalf of the other learned counsel as well, has argued that section 64 of C.P.C. Was not attracted to the facts of the present case firstly, because the order of attachment had been subsequently vacated by the learned Single Judge vide his order dated 11-3-1987 and secondly, because the attachment of the property in question had not taken place in accordance with rule 54 (2) of Order 21, C.P.C. His third argument was that, since the agreement of sale dated 4-2-1986 had taken place before the property had been placed under attachment the subsequent sale-deed executed between the appellant and respondent No,2 conferred a valid title on the appellant and hence the property could not be ordered to be attached or sold in execution of the decree.
12. So far as the first argument put forth by the learned counsel is concerned, we hardly find any merit in the same. No doubt, as is evident from the order passed by the learned Single Judge dated 11-3- 1987 earlier reproduced in this judgment, the order in regard to the attachment of the property referred to in the application was vacated but, as has been held by the learned Judge, the application to which the order relates was the execution application giving wrong number of the property. Consequently, when this fact was brought to the notice of the learned Judge he ordered vacation of attachment which operated in respect of the wrong property. The other order of the learned Judge, which was purportedly passed under Order 38, rule 5, C.P.C., in respect of the actual property in question, therefore, remained intact. We find that this aspect of the matter, has already been considered by the learned Single Judge and adequate reasons have been given by him for arriving at his findings in this regard and we find no flaw in the findings arrived at by the learned Single Judge and therefore, the first argument of Mr. Mohammad Sharif is not acceptable.
13. ' So far as the second argument is concerned, learned counsel has contended that unless all the formalities under rule 54 of Order 21 are complied with there can be no valid attachment under the law which can attract the provisions of section 64, C.P.C. Rule 54 of Order 21, C.P.C. Is reproduced as follows:- "54. Attachment of immovable property.---(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.
(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate."
14. ' It may be pointed out in this regard that the copy of the attachment order dated 12-2-1986 filed alongwith H.C.A. 41/90 shows that the order of attachment passed by the learned Single Judge had been communicated to respondent No,2. Mr. Mohammad Sharif has further argued that no compliance appears to have been made with sub-rule (2) of rule 54 as there was no promulgation in regard to the said attachment by beating of drum or any other customary mode and affixation of a copy of the order on a conspicuous part of the property etc. Reliance in this regard has been placed by the learned counsel on a number of cases cited from the Indian jurisdiction, which, no doubt, support his contention as it was emphasised in all the said cases that all the formalities required by rule 54 of Order 21, C.P.C., must be first complied with before attachment ordered by the Court can be held to have been effective for attracting of the provisions of section 64 or Order 38 rule 5, C.P.C. However, it is pertinent to point out that a perusal of the record of the case indicates that the bailiff of this Court on 15-2-1986 had actually pasted a notice in regard to the attachment of the case property at the premises and also on the Court's notice hoard. No doubt, there is nothing in the office copy of the said notice to indicate that a proclamation was also made by beating of drum but, in our opinion, merely because there was no beating of drum by the bailiff, the same would not render the attachment invalid when the other requirements of rule 54 (2) viz., service of the order on the judgment-debtor and pasting of the notice on the conspicuous part of the property as well as the Court's Notice Board had been adequately complied with. The object behind rule 54 (2) appears to be to give notice in respect of the attachment not only to the judgment-debtor but also to the public so that they may not accept any alienation of the property by the judgment-debtor. Consequently, if rule 54 (2) is substantially complied with so that the object behind the same rule is adequately served, the attachment cannot be held to be invalid merely because something insignificant was left to be done by the bailiff. We are, therefore, unable to agree with the second contention of Mr. Mohammad Sharif, Advocate as well.
15. ' Turning to the last contention of the learned counsel, it has been contended that in cases where an agreement to sell takes place before the attachment of the property the same would not affect the rights of the vendee who is not a party to the execution proceedings. In other words, according to the learned counsel, the same principle as laid down by rule 10 of Order 38, C.P.C., would be applicable to cases falling within the purview of section 64 of the C.P.C. The said rule 10 provides as follows:- "10. Attachment before judgment not to affect rights of stranger nor bar decree-holder from applying for sale---Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree."
16. ' Reliance in support of the said contention has been placed by the learned counsel on AIR 1928 Pat.
17. 199; AIR 1936 Nag. 163; AIR 1941 Born. 198 and AIR 1943 Born. 145 which fully support him on the point.
18. The view taken in the said cases was that the general rule laid down in section 64 must be read subject to the special rule laid down under Order 38, rule 10, C.P.C. We are, however, unable to subscribe to this view because, in our opinion, section 64, C.P.C. And Order 38, rule 10, C.P.C. Deal with two different kinds of situations. The former deals with alienation of property after its attachment in execution of a decree and the latter deals with alienations after attachment before judgment. If the two completely different situations are to be treated at par with each other the same may provide an opportunity to the judgment-debtor to avoid attachment of his property in execution of a decree by entering into a sham transaction. It appears for such reasons that the legislature in its wisdom has couched the provisions of section 64 in a different language from rule 10 of Order 38, C.P.C. The cases cited by Mr. Mohammad Sharif are from the Indian jurisdiction and we are not persuaded by the reasons stated in the said judgments, the reasons for which have just been stated by us in this judgment. It is also pertinent to point out that, although the order of attachment was purportedly passed in the case under Order 38, rule 5, C.P.C. But since admittedly such order had been passed during the pendency of execution proceedings before the learned Single Judge, the same, in fact was not an order under rule 5 of Order 38.
19. ' In the result, we find no force in these appeals and the same are dismissed but with no order as to costs.