' This is an execution of a decree for ejectment in respect of premises known as Gulzar-e-Abbasia Restaurant situated at the crossing of Farness Road and Lawrence Road, Karachi and for mesne profits in the sum of Rs, 2,03,098.44. The preliminary decree in this case was passed on 16-6-75 and final decree was passed on 16-1-76. The execution application was presented thereafter on 5-2-76.
On the same day the judgment-debtor submitted an application under section 151, C. P. C. (C. M. A.
No, 46/76) requesting therein that he may be given opportunity to raise objections against the excitability of the decree before orders regarding execution are passed. The Court ordered notice of this application. It appears that before further orders could be passed, the Supreme Court of Pakistan stayed the proceedings. Pending the disposal of this application and orders on the main execution application, on 9-8-76 the judgment-debtors submitted application under section 47 read with section 151, C. P. C. (C. M. A. No, 285/76) elaborating their objections as to the inexcusability of the decree and requesting for dismissal of the execution application.
2. When the case was called on 22-11-76, Mr. Hyder Pirzada learned counsel for the decree-holder raised a preliminary objection that the objections raised by the judgment-debtors to the excitability of the decree cannot be entertained unless they either furnish security or deposit the decrial amount in the Court as required under Order XXI, rule 23-A, C. P. C.
3. I have heard the learned counsel and this order would dispose of the aforesaid preliminary objection raised on behalf of the decree-holder.
4. It would be advantageous to briefly state the ground on which the objection as to the excitability of the decree in execution has been raised by the judgment-debtors. It is common ground that the property in question was originally evacuee property and was transferred to the compensation pool for disposal according to the settlement scheme. The judgment-debtor claims that one Fayaz Hussain filed N. C. S. Form for transfer of the premises in his name in consequence whereof Appendix XI was issued to him but he died on 16-11-59. After his death his heirs judgment debtor Jawwad Hussain and one Mst. Khairoon Nisa received Appendix in their name and paid transfer price to the authority concerned after which P. T.
0. Dated 19-4.61 was issued in their favor. Thereafter one Iffat Ara Begum, the predecessor of decree-holder applied to the Director Enforcement alleging that Jawwad Hussain had obtained the transfer of aforesaid property fraudulently being a local and not entitled to the benefit of the transfer under the settlement laws. Pursuant to this an enquiry was conducted as a result of which the Settlement and Rehabilitation Commissioner, Karachi by his order dated 2.6-62 set aside the transfer order in favor of Jawwad Hussain and another and transferred the property to the informant Mst. Mat Ara Begum. Subsequently, the said Mst. 1ffat Ara appears to have died and was succeeded by the decree-holder, who filed a suit for possession of the aforesaid premises and for mesne profits against the judgment-debtors being Suit No, 142/1963. The learned Single Judge of this Court dismissed this suit by judgment and decree dated 31-x.66. The decree-holders then filed L. P. A. No, 291/1966 which was allowed by a Division Bench of this Court by the decree now under execution.
5. The contention of the judgment-debtors is that on the date namely, 2-6-62 when the Settlement and Rehabilitation Commissioner, Karachi purported to transfer the property in favour of Mst. Iffat Begum, the powers of transfer vesting in him under section 10 of' the Displaced Persons Compensation and Rehabilitation Act, 1958 were taken away by amending Ordinance If of 1962 which came into force on 13.1-1962. Under the amended law as provided by section 10 (2) the power to transfer properties only vested in the Central Government. Thus it was urged that the transfer on the basis of which the suit was filed was void ab intio and decree obtained on that basis likewise was null and void. As stated earlier, the preliminary objection raised on behalf of the decree- holders is based on the provisions of Order XXI, rule 23-A, C. P. C. Which reads as under:- "An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless-
(a) in the case of a decree for the payment of money, he either deposits the decrial amount in Court or furnishes security for its payment; and
(b) in case of any other decree, he furnishes security for the due performance of the decree."
'The contention of Mr. Mohammed Arif, learned counsel in reply to this preliminary objection is two- fold. In the first place learned counsel contended that since the Court had lacked inherent jurisdiction to entertain the suit, this objection can appropriately be raised under section 47, C. P. C.
Secondly counsel contended that the objections contemplated in Order XXI, rule 23-A, C. P. C. Are of a totally different nature as compared to the .Objections envisaged in section 47, C. P. C. He, therefore, submitted that penal provisions of Order XXI, rule 23-A, C. P. C. Are not attracted in case of application under section 47, C. P. C. Elaborating his contention learned counsel referred to rules 22 and 23 of the Order XXI, C. P. C. And submitted that the requirement of furnishing security or deposit of decrial amount was applicable only in case the judgment-debtor raised objection in consequence to the notice issued by the Court under rule 22 of Order XXI, C. P. C. According to the counsel, section 47, C. P. C. Is not controlled by the provisions of rule 23-A, as the same provides an independent right to remedy to question the excitability of a decree. In support of his contention, learned counsel placed reliance first on Lakhu v. Radha Bai (I). In this case plaintiff's properties were wrongly sold in execution of a mortgage decree and the plaintiff brought a suit challenging the auction-purchaser's title. The defendant contended that the suit was barred under section 47, C. P. C. The trial Court decreed the suit but the 1st Appellate Court dismissed the suit as barred under section 47, C. P. C. The High Court upheld the view taken by the 1st Appellate Court and in this connection observed that even if the sale of the suit lands was regarded a nullity, application could have been made to the executing Court to set aside the sale on that ground. The learned Judges expressed the-opinion that the object of the section was to check needless litigation and to prove cheap and expeditious procedure for the determination of questions relating to execution without recourse to separate suit. I am quite unable to see how this decision advances the case of the judgment-debtors. On the contrary the exposition of law as to the scope of section 47 clearly makes out that a question relating to the nullity of a sale in execution cannot be agitated by a separate suit but is a matter relating to' execution and is therefore, covered by section 47, C. P. C.
Counsel then cited Ramanna vs. Nallaparaju (2). In this case in somewhat similar circumstances as in the previously cited case the Supreme Court of India held that it is well settled that when a sale in execution of decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated only by an application under section 47, C. P. C. And not in a separate suit. This decision is also therefore, not relevant for the question under consideration.
6 On a careful examination of scheme of the Code of Civil Procedure, I am of the view that there is no warrant for the contention that section 47 and Order XXI, rule 23-A, C. P. C. Are to be read independent of each other or that section 47 furnishes an independent right to remedy relating to execution of a decree. Section 47 is included in Part 2 of C. P. C. The main title of which is 'execution'.
This part deals with the procedure and powers of the Court in execution of a decree. Section 47 itself has been captained with a sub-title: "Questions to be determined by Court executing decree."
The section itself provides that all questions arising between parties relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by separate suit. From the bare reading of section and the scheme in which it is placed in the Code of Civil Procedure it is quite clear that section 47, C. P. C. Postulates the determination of questions relating to execution of a decree by the Court which is executing the decree. The H- words are not "the Court competent to execute the decree". It is, therefore, difficult to agree with the learned counsel for judgment-debtor that this section provides an entirely independent right to remedy as to questions relating to execution of the decree. The obvious intention was to exclude
(1) AIR 1952 Bom. 438 (2) AIR 1956 SC 87 ' and bar the right to file a separate suit as to questions inter alia relating to the execution of a decree. In this view of the matter it is patently obvious that the provisions of Order XXI, C. P. C. Which also relate to the execution of decree and provide for detailed procedure in that regard, are to be read with section 47, C. P. C. Rules 22 and 23-A pertain to the procedure for disposal of execution application. On a proper reading of the provisions of the aforesaid rules it appears that the right to raise objection was substantively extended to the judgment-debtor under rule 22 of Order XXI, C. P.
C. And the scope of the objections that can be raised in execution is governed by section 47, C. P. C.
The objection a3 to the non-excitability of the decree obviously relates to the execution of the decree and a Court would clearly be barred from considering the same under the provisions of rule 23-A unless the judgment-debtor deposits the decrial amount in the Court or furnishes the security for its payment. C The mere fact that in a case where the Court has not yet issued notice to the judgment-debtor or where no such notice is required to be given, would not entitle the judgment- debtor to by-pass the provisions of rule 23-A and be heard without compliance thereof.
7. Mr. Hyder Piraada has brought to my notice Mohammed Yasin v. Aftab Ahmed (1) where Jamaluddin Ahmed, J. Also upheld an objection of similar nature. Mr. Arif, however, attempted to distinguish this case and submitted that the precise contentions made in he present case were not raised in that case. Be that as it may, I have independently come to the conclusion that the judgment-debtor cannot be allowed to object to the execution of this decree unless he complies with provisions of Order XXI, rule 23-A, C. P. C.
8. In the result, I uphold the preliminary objection and direct that the judgment-debtors shall furnish security to the satisfaction of the Nazia of this Court in the sum equal to the decrial amount within two months from today. In case the judgment-debtors fail to furnish security as ordered, the execution shall issue as prayed. Objection allowed.
(1) PLD 1976 Kar. 1133
…and 38 more citing cases