' SABIHUDDIN AHMED, J.-- This appeal arises out of a judgment of the learned Single Judge decreeing the respondents' suit for specific performance of the agreement, dated 23-2-1963 for sale of the appellants lands.
2. Briefly the case set up by the respondents/plaintiffs was that by an agreement, dated 23-2-1963 (hereinafter mentioned as the first agreement) one late Khan Bahadur Allah Bux Gabol (hereinafter mentioned as the deceased), the predecessor in-interest of the appellants, agreed to sell his share in 30-05 Acres of land in S.N.Cs. 188 and 189 and adjoining land in Deh Sharabi Tapo Landhi together with trees, gardens, wells and pumps installed therein for a total consideration of Rs,87,350 at the rate of Rs,3,800 per acre in favour of the respondents No,1 and one Shaikh Fazal Hussain, predecessor-in-interest of respondents Nos.2 and 3. By a subsequent agreement, dated 16-4-1963 the deceased further Sold about 35 Acres of land in the same Deh and Deh Pehai for a further consideration of Rs,40,500. The purchasers were put in possession of the aforesaid lands, but in January 1964 .They came to know that respondent No,5 Registrar Cooperative Societies Sindh had attached the lands in question pursuant to an application preferred by the respondent No,4 i,e, Mercantile Cooperative Bank Limited Karachi. Considering that the respondent No,5 could not attach the lands in suit and that the heirs of the deceased (presently the appellants) were bound to convey the lands to the purchasers i,e, the respondents Nos.1 to 3, respondent No,1 filed the above suit seeking specific performance of the contract of sale in favour of purchasers i,e, the respondents Nos.1 to 3, a permanent injunction seeking to restrain the respondent No,4 from interfering with the possession of the plaintiff/respondent No,1 and a direction to the respondent No,5 to remove or cause the removal of attachment issued by him or his nominee/arbitrator.
Alternatively refund of Rs,1,36,100 alleged to have already been paid as well as amount of Rs,1,10,000 by way of damages for breach of contract and concealment of factum of attachment was claimed. Since' agreement of the respondents Nos.2 and 3 to file the suit could not be obtained by the respondent No,1 these co-purchasers were arrayed as defendants in the suit.
2: The deceased in his written statement denied having entered into any agreement of sale in favour of the respondents Nos. 1 'to 3 or any one of them planning the rationale for executing the first agreement, he contended that the aforesaid respondents and one Mr. Tekchand had approached him suggesting formation of a garden society on the land owned by him and pursuaded him cancel an earlier agreement of sale that he had entered with one Pir Bux on 16-8- 1962. By way of a first step and before such society could be formed; he < (deceased) was pursuaded to cancel the agreement with Pir Bux and late Fazal Hussain (predecessor-in interest of respondents Nos.2 'and 3) disbursed an amount of Rs,87,350 to be refunded to the aforesaid Pir Bux.
He further stated that it was in these circumstances that he signed the agreement which was not really an agreement of sale and it was expressly undertook that in case the proposal to set up a garden society did not materialize he would only refund the amount so received. He further averred that possession was also delivered in anticipation of formation of a' garden society, and infect the so-called buyers were liable to account for use of the lands. He admitted having received a further amount of Rs,46,500 on 16-4-1963 but contended that before the garden society could be formed Mr. Tekchand died and the whole proposal fell through. As such there was no enforceable, 'sale agreement between the parties. Moreover, he stated that the appellant and Shaikh Fazal ,Hussain (predecessor of respondents Nos.2 and 3) were fully aware of the claim of the respondent No,4 and the proceedings before the respondent No,5. He also raised a preliminary objection to the effect that the property of Shaikh Fazal Hussain had been placed under the receivership of the Official Assignee who was also a necessary party to the -suit. The. Respondents Nos.2 and 3 supported the claim of the respondent No, I /plaintiff for specific performance of the agreement. The respondents Nos.4 and 5, however, pleaded that the land in question had been attached before Judgment by the respondent No,5 on an application preferred under section 55 of the Bombay Cooperative Societies Act and the alleged agreement of sale having been executed thereafter was void and ineffective
3. On the pleadings of the parties the flowing issues were framed:- (.1) Is the official Assignee a necessary party?
(2) Was the agreement, dated 23-2-1963 tentatively signed by the defendant No,1 and was not to be operative until finalization of the terms of the scheme of Garden Housing Society?
(3) Is the receipt, dated 16-4-1963 an agreement of sale? If so, in respect of which lands?
(4) Who had paid the sum of Rs,87,350 and to whom?
(5) What was the total amount paid to the defendant No, I and by whom and for what purpose?
(6) Is the plaintiff in possession of the lands? If so, with lands and on whose behalf?
(7) Is 'the plaintiff liable to account to the defendant No,1 for income from any lands? If so, from what date?
(8) Were the lands in suit under attachment on the date of the agreement and the date of alleged receipt? If so, what is the effect?
(9)Are the alleged agreement, dated 23-2-1963 and the receipt, dated 16-4-1963 and delivery of possession of the lands in suit illegal and void against the claims of the defendant No,4 under order of award made by the Registrar of Cooperative , Societies?
(10) Has the plaintiff spent a sum of Rs,40,000 for the purposes alleged by him and is he entitled to recover the same?
(11) Is the plaintiff entitled to relief of specific performance?
(12) Is the plaintiff entitled to any damages?
(13) What should the decree be?
(14) General."
4. Evidence was led by the parties and arguments addressed. It appears that basic controversy centered round the question, of nature of the transaction and the extent of the property sold as will as legal question whether the sale agreement was legally enforceable in view of the attachment effected by the respondent No,5. With respect to issue No,2, the learned Single Judge came to the conclusion that the deceased had been unable to establish that the agreement in writing, dated 23-2-1963 was anything, but an agreement for sale of immovable property which was also partly performed by the receipt of consideration as well as delivery of possession to the Vendees. As such there was ,no question of any liability on the part of the respondent No,1/plaintiff to render accounts. With respect to the alleged second agreement however, the learned Single Judge found that no agreement in writing existed and the respondent No,1 had only relied upon a receipt executed by the deceased, dated 16-4-1963. After careful analysis of evidence (if we may say so with respect) the learned Single Judge found that the receipt only showed disbursement of part of the outstanding consideration for the property already agreed to be sold vide the agreement dated 23-2-1963 and was no evidence of a further agreement to sell additional land. This issue accordingly was decided in favour of the deceased.
5. With regard to the legal objection identified in issues 8 and 9, the learned Single Judge came to the conclusion that the survey numbers disclosed by the settlement clerk of the office of Mukhtiarkar deposing about attachment of the suit land, did not include survey numbers shown in the sale agreement and it was not proved that the property in dispute was subjected to a prior attachment by a competent Court. Furthermore, it was found that even if such attachments was presumed to exist it came to an end by virtue . Of an agreement between deceased and the respondent No,1, dated 20-6-1964 (Exh.40/2) and subsequent conveyance deed whereby some property owned by the deceased was transferred to the respondent No,4 in full and final satisfaction of the latter's claim. Accordingly the suit was decreed to the extent that the appellants were directed to execute the necessary sale deed with respect to properties mentioned in the agreement, dated 23-2-1963.
6. Mr. Abdul Muqtadar Khan, learned counsel for the appellants in the first instance attempted to question the findings of the fact recorded by the learned single Judge as to the existence of the agreement of sale, dated 23-2-1963. He argued that the evidence of the deceased to the effect that there was an oral agreement to form a garden society and possession of the suit land was delivered to the vendees on this account was not given due consideration. Apart from the fact that such oral evidence is prima facie inadmissible, we have gone through the same and in our considered opinion of the findings of the learned single Judge on this aspect of the else are entirely unexceptionable. Moreover, learned counsel feebly, argued that the failure to implead the Official Assignee as receiver of the property of Shaikh Fazal Hussain vitiated the judgment. We find no force in this contention either, particularly when the legal representatives of the aforesaid Fazal Hussain were duly represented and in any case no liability on his estate was found upon consideration of the merits of the case.
7. Learned counsel, however, argued with a great deal of stress that the property in question having been subjected to attachment by an order of the Registrar Cooperative Societies, which has the same force as attachment by Civil Court, vide order, dated 28-5-1962, the subsequent sale agreement in favour of the respondents Nos.1 to 3 would be void in terms of section 64, C.P.C., such agreement was not enforceable at law. In this context he argued that Photostat copy of the order of respondent No,5 dated 28 :5,-1962 (Exh.40/1) and subsequent orders referring to the same having been admitted in evidence learned Single Judge was not justified in holding that no such attachment was proved. Moreover he has contended that the order of the Registrar, dated 9-3- 1963 (Exh.40/2) clearly mentioned Serial Nos. 188 and 189 in Deh Sharabi in the schedule of properties and a finding to the contrary was not based on evidence.
8. With profound deference to the learned Single Judge we are constrained to observe that learned counsel appears to be right to the extent that the survey numbers constituting part of the disputed property are mentioned in the Registrar's order (Exh.40/2) and this factual aspect appears to have escaped the attention of the learned Single Judge. There also appears to be evidence on record to indicate that the property in question was directed to be attached on 28-5-1962. Nevertheless Mr. Zia Perwaiz learned counsel for the respondents rightly pointed out that no attachment had in fact been effected prior to the agreement, dated 23-2-1963. In this context he drew our attention to the deposition of D.W. Sajjad Raza and Inspector Cooperative Societies who produced the relevant documents in Court and deposed that he could not say whether the order, dated 28-5-1962 (Exh.40/1) was communicated to the Mukhtiarkar and that a further order (Exh.40/2) was only passed on 9-3-1963. Learned counsel argued that unless an attachment had actually taken effect in terms of the requirements of Order 21, Rule 54 the bar of section 64, C.P.C. Would not be attracted.
9 There appears to be a great deal of force in the contention of Mr. Zia Perwaiz. Moreover, there is evidence on record, as discussed above, to the effect that after the order of attachment having been made the deceased and the respondent No,4 entered into a compromise in respect of claim of the latter and a consent award was made on 20-6-1964, whereby the deceased agreed to transfer certain properties to the Bank. Subsequently a deed of conveyance was executed whereby certain properties were actually transferred in full and final satisfaction of the claim of the respondent No,4. Therefore, there appears little force in Mr. Abdul Muqtadar Khan's submission that a decree for specific performance could not be granted on the ground that the property in question stood attached in favour of the respondent No,4.
10. Learned counsel, however, attempted to argue that subsequent developments were inconsequential and the mere fact that an attachment order existed at the time of agreement of sale was entered rendered the aforesaid agreement void and unenforceable and a sale-deed directed to be executed pursuant to such agreement was not different from a private sale under section 64, C.P.C.. He inter alia placed reliance on Shaikh Muhammad Ishaque v. Syed Irshad Ali Shah PLD 1975 Lah. 914, where it was held that if a judgment-debtor was precluded from transferring his property by some statutory provisions i,e, section 64, C.P.C., the Court could not order execution of sale deed in violation of such provision. We have no cavil with the proposition enunciated in the above judgment. Nevertheless we are, unable to uphold the view that the agreement was void and unenforceable for more than one reason. In the first place it ought to be kept in view that section 64, C.P.C. Does not contemplate that a sale in violation of an attachment order is Void ab initio. It only provides that such sale is voidable to the extent of interest of the attaching creditors. If authority is needed one may refer to the, judgment of this Court in Kuwait Flour Mill v. m.v. Kashmir 1990 CLC 579. Therefore, the mere fact that an agreement to sell was entered into while the property was under attachment world not render the agreement void, but a Court called upon to enforce it may not do so if the attaching creditors object to such enforcement to the extent to which their interests are impaired. Once the interests of the respondent No,1 stood satisfied through transfer of property no objection to specific performance of the contract could be legitimately taken. Moreover, the appellants cannot take advantage of their own wrong; having agreed to sell the property they cannot be allowed to question the sale on the ground of a previous attachment if favour of some other creditors. It is, significant that the impugned judgment. Has been called in question not by the respondent No,4 Bank but by the appellants i,e, the successors- in-interest of the deceased seller.. We are, extremely doubtful whether they can raise such a ground in this appeal. For these reasons we find no substance in this appeal dismiss the same with costs.