Objections to Execution. Whether objections were malafide and were filed for purpose of delaying exeuction. Judgment-debtor filed objections earlier that property did not belong to him, without specifying who was its owner. Admitteldy, judgment-debtor lives with his two sons to whom property was allegedly gifted, but they themselves took no step uptil 13.1.1983, to object to attachment. Explanation that they were not aware of attachment is not acceptable because they and their father are represented by same counsel. There is no manner of doubt that objections were malafide and were filed with sole purpose of obstructing execution of decree. Dismissed with special costs. PLJ 1995 Kar. 339 = PLD 1995 Kar. 421.

                Intervenor cannot make out case for release of attachment in application under Order 21, Rule 58 only by establishing his possession. He has to establish such possession which law recognized as a right or interest in property. Trespasser or bare licensee not a person who can be said to have any title to a right or interest in property. PLJ 1988 Kar. 273.

                Obvious and only just procedure for investigation of claims and objection to attachment of property could be allowing parties adequate and sufficient opportunity of establishing their respective claims. Held further: Impugned order being manifestly violative of provisions of law, is liable to be set aside on this short ground alone. PLJ 1990 Lah. 67 (DB).

                Attachment order was no longer in the field and had ceased to exist. Counsel of parties had made statement that parties had compromised, consent decree had been passed and that impugned order of attached passed earlier in execution proceedings was no more in the field. Order of sale of property subsequent to statement of parties, without fresh . attachment order being erroneous and not sustainable in law. PLJ 1999 Lah. 1370 = PLD 1999 Lah. 216.

 

Decree of High Court awarding simple interest at the rate of 6 percent per annum from the date of decree had attained finality–Executing Court modifying such decree to include interest from the date as claimed by appellant–Order passed by Executing Court modifying decree of High Court which had attained finality was, thus, arbitrary, capricious and coram-non-judice–Such order of Executing Court was rightly set aside by the High Court–Where essential feature for assumption of jurisdiction were contravened or forum exercised powers not vested in it, or exceeds authority beyond limits prescribed by law, judgment rendered would not only be coram-non-judice but nullity in the by of law and Court would condone delay even if such judgment was challenged beyond period of limitation–Judgment of High Court setting aside impugned order of Executing Court would not warrant interference. PLJ 2002 SC 222

PLD 1971 SC 61; 1986 SCMR 261; 1987 SCMR 1543; PLJ 1987 Quetta 92; PLD 1965 Kar. 293; AIR 1932 Lah.. 534 & PLD 1983 Lah.. 445 ref.

Execution of decree and attachment of property belonging to legal heirs of judgment debtor. Applications for release of property accepted by executing Court which order remained unchallenged. Dismissal of another petition by decree holder for attachment of same property by executing Court with direction to submit fresh "Fard-e-Taleeka.'. Constitutional petition. Petitioner has not placed any document on record to establish that respondent have inherited any property from their predecessor-in-interest and if nothing has come into hand of any heir or other person then he cannot be termed legal representative and cannot be sued for such claim against deceased debtor nor decree passed against deceased judgment debtor be executed against them- It is also admitted fact that earlier order passed on 28.10.1997 by executing Court through which property of Mst. "N" was released, never challenged further before any competent forum wherein learned executing Court discussed in detail point for attachment of said property- Decree holder may furnish "Fard-e-Taleeka' as directed by learned executing Court. Order of learned Civil Judge is eminently just and correct as there is nojurisdictional defect in same. Petitioner has failed to point out any illegality or infirmity in above said order. Petitioner may seek his remedy before executing Court. Petition dismissed.   PLJ 1999 Lah. 1077.

 

59.       Evidence to be adduced by claimant. The claimant or objector must adduce evidence to show that at the date of the attachment he had a title to, or right or interest in, the property attached.

 

60.       Release of property from attachment. Where upon the said investigation the Court is satisfied that the claimant or objector had a title to, or right or interest in, the said property-and the said property was not, by reason of such title, right or interest, wholly or partly liable to attachment, the Court shall make an order releasing the property, wholly, or, as the case may be, to such extent as it is not so liable, from attachment.

 

61.       Continuance of attachment subject to claim of encumbrancer. Where the Court is satisfied that the property is subject to mortgage or charge in favour of some-person, and thinks fit to continue that attachment, it may do so subject to such mortgage or charge.

 

62.       Questions relating to rights, etc., of claimant in attached property to be decided by Court. All questions relating to the right, title or interest of the claimant or objector in the attached property shall be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest].

 

Court Decisions

All questions relating to right, title or interest in attached property whether raised by claimant or by an objector are to be adjudicated upon and determined by Executing Court. If anything more was delivered to auction-purchaser of attached property, judgment-debtor would be entitled to release same in executing proceedings for that question fell within meaning of "satisfaction" of decree. PLJ 1999 Kar. 605 = 1999 CLC 374.

            63. [Omitted]

 

 

Sale Generally

             64.      Power to order property attached to be sold and proceeds to be paid to person entitled. Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

 

Court Decisions

Judicial sale, setting aside of—After the auction was completed, contributories/shareholders had come forward with a proposal which was to be fulfilled by a third party—On the basis of such proposal the shareholders were seeking to stall the winding up proceedings as also setting aside of the judicial sale—Judicial sale could not be set aside on the basis of such proposal, 2001 CLC 1267

 

65.       Sales by whom conducted and how made. Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

 

66.       Proclamation of sales by public auction. (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2)        Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible:-

(a)        the property to be sold;

(b)        the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

(c)        any incumbrance to which the property is liable;

(d)       the amount for the recovery of which the sale is ordered; and

(e)        every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

(3)        Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4)        For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.

 

Court Decisions

Joint property being indivisible, same was ordered to be auctioned and from sale proceeds, shares of co-sharers be satisfied by giving them their share of the amount. Property in question, was auctioned and at that time no objection was raised to mode of auction. Proclamation of auction however, did not include reserve price which was necessary so that rights of judgment debtors were properly safeguarded and bid was to have started from that figure. Non-disclosure of reserve price of properly in proclamation, would render the same liable to be struck down. Even if there was no objection from either side still it was duty of Court to conduct auction in accordance with law which has not been done- Trial Court by not f9ing reserve price in proclamation of auction has violated provisions contained in O.21. R. 66 C.P.C.. Impugned judgment/decree was set aside and Court was directed to issue fresh proclamation in accordance with law for auction of property in question, keeping in view observations of High Court mentioned in its judgment.   PLJ 2000 Lah. 1598.

 

67.       Mode of making proclamation. (1) Every proclamation shall be made and published, as nearly may be, in the manner prescribed by rule 64, sub-rule (2).

(2)        Where the Court so directs, such proclamation shall also be published in the official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.

(3)        Where property is divided into lost for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.

 

68.       Time of sale. Save in the case of property of the kind described in the proviso to rule 34, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the Court-house of the judge ordering the sale.

 

69.       Adjournment or stoppage of sale. (1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:

 

Provided that, where the sale is made in, or within the precincts of the Court-house, no such adjournment shall be made without the leave of the Court.

(2)        Where a sale is adjourned under sub-rule (1) for a longer period than seven days, a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3)        Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given .to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the same.

 

70.       Saving of certain sales. Nothing in rules 66 to 69 shall be deemed to apply to a case in which the execution of a decree has been transferred to the Collector.

 

71.       Defaulting purchaser answerable for loss on re-sale. Any deficiency of price which may happen on a re-sale by reason of the purchaser's default and all expenses attending such re-sale, shall be certified to the Court or to the Collector or subordinate of the Collector, as the case may be, by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

 

72.       Decree-holder not to bid for or buy property without permission. (1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2)        Where decree-holder purchases, amount of decree may be taken as payment. Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to the provisions of section 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of decree in whole or part accordingly.

(3)        Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder. 

 

73.       Restriction on bidding or purchase by officers. No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

Sale of Movable Property

 

74.       Sale of agricultural produce. (1) Where the property to be sold is agricultural produce the sale shall be held: –

(a)        if such produce is a growing crop, on or near the land on which such crop has grown, or .

(b)        if such produce has been cut or gathered, at or near the threshing-floor or place for treading out grain or the like or fodder-stack on or in which it is deposited:

Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2)        Where, on the produce being put up for sale:-

(a)        a fair price, in the estimation of the person holding the salaries not offered for it, and

(b)        the owner of the ^produce or a person authorized to act in his behalf applies to have the sale postponed till-the next day or, if a market is held at the place of sale, the next market-day, the sale shall be postponed accordingly and shall be than completed, whatever price may be offered for the produce.

 

75.       Special provisions relating to growing crops. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day and the sale shall not be held until the crop has been cut or gathered and is ready for storing.

(2)        Where the crop from its nature does not admit of being stored, it may be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting and or gathering it. 

 

76.       Negotiable instruments and shares in corporations. Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction authorize the sale of such instrument or share through a broker., 

 

77.       Sale by public auction. (1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold.

(2)        On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.

(3)        Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

 

78.       Irregularity not to vitiate sale, but any person injured may sue. No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery. 

 

79.       Delivery of movable property, debts and shares. (1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2)        Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3)        Where the property sold is a debt riot secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser or prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

 

80.       Transfer of negotiable instruments and shares. (1) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share, the judge or such officer as the may appoint in this behalf execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.

(2)        Such execution or endorsement may be in the following form namely:-

AB by CD, judge of the Court of (or as the case may be), in a suit by EF against AB.

(3)        Until the transfer of such negotiable instrument or share, the Court may, by order, appoint some person to receive any interest or dividend due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

 

81.       Vesting order in case of other property. In case of any movable property not therein before provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

Sale of Immovable Property

 

82.       What Court may order sales. Sale of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

           

83.       Postponement of sale to enable judgment-debtor to raise amount of decree. (1)Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale or such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2)        In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 66, to make the propose mortgage, lease or sale:

Provided that all monies payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:

Provided also that no mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

(3)        Nothing in this rule shall be deemed to apply to a sale or property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

 

84.       Deposit by purchaser and re-sale on default. (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent. On the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2)        Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 12, the Court may dispense with the requirements of this rule.

 

85.       Time for payment in full of purchase money. The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteen day from the sale of the property:

Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

 

86.       Procedure in default of payment. In default of payment within the period mentioned in the last preceding rule, the deposit may if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

 

87.       Notification on re-sale. Every re-sale of immovable property, default of payment of the purchase-money within the period allowed for .such payments shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

 

88.       Bid of co-sharer to have preference. Where the property sold a share of undivided immovable property and two or more persons of whom one is a co-sharer, respectively bid the same sum for such property or for any lot the bid shall be deemed to be the bid of the co-sharer.

 

89.       Application to set aside sale on deposit. (1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court:

(a)        for payment to the purchaser, a sum equal to five per cent of the purchase-money; and

(b)        for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2)        Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application be entitled to make or prosecute an application under this rule.

(3)        Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

 

Court Decisions

Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C. PLD 2003 SC 500

Suit for specific performance decreed on application for compromise for payment of earnest money. Judgment debtor failed to appear and contest execution proceedings and according his property which was plot of land, allotted in his name by K.DA., auctioned. Judgment debtor filing objection application regarding non service of notice title to property etc.. Validity. Judgment debtor was duly served in person with notice of sale of property for satisfaction of decree on 12.8.1991 for bearing before Additional Registrar on 22.8.1991. but he did not bother to appear either in person or through authorised agent. Presumption of correctness and regular performance is always attached- to official acts-despite personal service of notice on judgment debtor, he was served by way of publication in daily "Morning News' for hearing fixed but without any response. Likewise, delay in deposit of costs, of sale proceedings on part of decree holder having been condoned and being past and closed transaction cannot be re-opened in present proceedings. It is needless to emphasise that judgment debtor having slept over matter for nearby 12 years after consent decree and for more than 10 years of this execution, as come up with irrelevant and frivolous objections to defeat sale which has been duly accepted and confirmed by this Court (High Court) followed by deposit of purchase money, delivery of vacant possession and transfer of property in 'favour of auction purchaser. At any event, there is no evidence to hold that market value of plot in question was Rs. 5 million at time of public notice for sale of property. Argument that it is worth Rs. 10 million at moment is without any substance as past and closed transaction cannot be re-opefted at instance of inscrupulous litigant who has kept silent for pretty long time after consenting to decree and not paying paltry amount of earnest money as undertaken by him in judicial proceedings, to which sanctity is always attached. Application is made after more than 5^ years in as much as judgment debtor was personally served with notice of sale on 12.8-1991. Application is liable to dismissal on this preliminary ground alone. There is absolutely no merit in this application which is accordingly dismissed with special costs of Rs. 5,000,/-. PLJ 1998 Kar. 304.

 

 

90.       Application to set aside sale on ground of irregularity or fraud. Where any immovable property has been sold in execution of a decree the decree-holder, or any person entitled to share in a rateable distribution of assists, or whose interests are affected by the sale, may apply to the Court to set side the sale on the ground of a material irregularity or fraud in publishing or conducting it:

            Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the fact proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity of fraud; and

[Provided further that no such application shall be entertained unless the applicant deposits such amount, not exceeding twenty per cent. of the sum realized at the sale, or furnishes such security as the Court may direct].

 

Court Decisions

Sale in execution of decree, setting aside of—Dismissal of objection petition as being not competent for having been filed under O. XXI, R. 10, C.P.C – Validity—Objection petition had been filed in reference to execution application of decree-holder—Contents of objection petition and relief claimed therein clearly showed that same was within purview of O. XXI, R. 90, C.P.C – Executing courts was duty bound to have considered contents of objection petition and by applying relevant provisions should have decided matter on merits, rather knocking out judgment-debtor on technical ground—Dismissal of objection petition on ground of maintainability could not be sustained—High court set aside impugned order with directions to lower court to decide objection petition considering same to have been under O. XXI, R. 90, C.P.C.  PLD 2003 Lah. 421

Sale of property—Judgment-debtors applied for setting aside the sale under O. XXI, R. 90, C.P.C which was dismissed by the Banking court on the grounds that the objectors were directed to deposit twenty per cent. Of the sale proceeds but they had not complied with the direction; that they were afforded an opportunity to deposit the entire decretal amount and retain the property but in vain and that instead of taking the shelter of O. XXI, R. 89, C.P.C. in response to the notice given under O. XXI, R. 90, C.P.C which suggested that their conduct was not above board—Validity—Held, judgment-debtor was well within his right to seek annulment of a sale through an application under O. XXI, R. 89, C.P.C. or an application under R. 90, O. XXI, C.P.C. which had different connotations and parameters—If the judgment-debtor had elected to file an application under O. XXI, R. 90, C.P.C. the same had to be decided within the parameters thereof and not on the basis of his refusal to deposit the decretal amount or accept the offer to purchase the property over and above the price at which it was auctioned or procure a buyer who could offer an amount over and above the auction price—No adverse inference could also be drawn with regard to credentials of the judgment-debtor and conduct—objection petition filed by the judgment debtors could not be said to be tainted with mala fides in the face of the huge amount deposited by them in compliance with the orders of supreme court and High court—No tangible proof f sale of his shares in the property by one of the judgment-debtors being available, his locus standi to object to the sale could not be assailed—Banking Court having dismissed the application under O. XXI, R. 90, C.P.C . Without recording evidence of the parties, although the same required holding of an investigation and recording of findings based on evidence adduced by the parties, Supreme court declined to decide the matter on merits and remanded the case to the Banking Court with the direction that the application under O. XXI, R. 90, C.P.C. filed by the judgment-debtors be decided on merits after recording evidence of the parties, within a specified period. PLD 2003 SC 500

                Second proviso—Sale in execution of decree, setting aside of—Deposit of 20% of auction price—proper stage—Second proviso to O. XXI, R. 90, C.P.C. is an enabling and directory provision empowering Court to direct deposit of amount not exceeding 20% of sum realized at sale or furnish security—Such discretion must be exercised by court according to judicial standard—Words “as the controls and regulates its earlier part—Objection petition can be dismissed, if direction of court is not complied with. PLD 2003 Lah. 421

                Sale in execution of decree, setting aside of – Dismissal of objection petition for non-deposit of 20% amount under O. XXI, R. 90, C.P.C – Validity—Execution Court had never issued direction to judgment-debtor to make deposit or furnish security—Executing court by taking resort to second proviso to O. XXI, R. 90, C.P.C was not justified to dismiss objection petition—high Court set aside impugned order of High court would be considered as sufficient direction by court in terms of the rule and compliance made by judgment-debtor. PLD 2003 Lah. 421

Execution of decree—Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C. PLD 2003 SC 500

Auction proceedings without first deciding objection petition. Effect. Conduct of auction proceedings without first deciding objection petition was materially irregular and seriously violative of rights of party concerned. PLJ 1999 Pesh. 74 = 1999 MLD 2127.

 

Non-attachment of property before auction thereof.  Plea that property having already been mortgaged with bank was not required to be attached was of no consequence. Mortgage was to secure interest of creditor bank while attachment thereof, would bring the same within domain of Court. Order of auction, thus. could not be confused with order of attachment. Entire auction proceedings and confirmation of auction through impugned order was, thus. set aside as being void and illegal. PLJ 1999 Pesh. 74 = 1999 MLD 2127.

 

Objection against sale of property in execution of decree without depositing specified amount.  No deposit could automatically be made by objector unless specifically ordered by Court. Punitive aspect of Order 21, R. 90 C.P.C. could be invoked only when objector fails to comply orders of deposit passed by court. Objection petition against sale. therefore, was not liable to be thrown out on account of the fact that no order was passed by Executing Court for deposit of specified amount. PLJ 1999 Pesh. 74 = 1999 MLD 2127.

 

91.       Application by purchase to set aside sale on ground of judgment-debtor having no saleable interest. The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

Court Decisions

Execution of decree—Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C. PLD 2003 SC 500

 

92.       Sale when to become absolute or be set aside. (1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.

(2)        Where such application is made and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

(3)        No suit to set aside and order made under this rule shall be brought by any person against whom such order is made.

 

Court Decisions

Sale, confirmation of—While processing a sale or confirming the same, the Executing Court is expected to act as a prudent common man/commercial person, 2001 CLC 1267

 

93.       Return of purchase money in certain cases. Where a sale of immovable property is set aside under rule 92 the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

 

94.       Certificate to purchaser. Where a sale of immovable property has become absolute, the Court shall grant a 'certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

 

95.       Delivery of property in occupancy of judgment-debtor. Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

 

96.       Delivery of property in occupancy of tenant. Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary made, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

 

Resistance to Delivery of Possession of Decree-holder or Purchaser

 

97.       Resistance or obstruction to possession of immovable property. (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2)        The Court shall fix a day for investigation the matter and shall summon the party against whom the application is made to appear and answer the same.

 

Court Decisions

Execution petition by landlord against tenant after his ejectment from rented premises. Objection petition filed by petitioner during execution proceedings on basis of agreement to sell while suit for specific performance was in field. Whether petitioner could get possession of property invoking provision of O.21. R-99 when he had already been dispossessed. Rule-99 provides resistance or obstruction by bonafide claimant who has caused resistance or obstruction and he is any person other than judgment-debtor claiming in good faith to be in possession of property in his own account or on account of some person other than judgment-debtor. Petitioner stands dispossessed and still matter whether agreement in respect of disputed property is genuine or not or what charge or interest is created in respect of disputed property in favour of petitioner is to be determined by court concerned, and if petitioner is successful to prove same he can be put into possession by court concerned. Provision of O.21. R. 99 read with provisions of Rules 97, 98 as well as Section 74 of C.P.C. are not available to petitioner. PLJ 1998 Lah. 1088 = PLD 1998 Lah. 411 = NLR 1998 Civil 388.

 

98.       Resistance or obstruction judgment-debtor. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that applicant be put into possession of the property, and where the applicant is still resisted 01. obstructed in obtaining possession, the Court may also, at the instance of the applicant order the judgment-debtor, or any person acting at his instigation, to be detained in t* * *] prison for a term which may extend to thirty days.

 

99.       Resistance or obstruction by bona fide claimant. (1) Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than judgment-debtor) claiming in good faith to be in possession of the property on his own account or an account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

 

Court Decisions

Objection petition– Dismissal of. Revision petition- Burden of proof. Order 21 Rule 99 CPC provides a protection to person in possession, not to be dispossessed in process of execution proceeding, provided he fulfil requirement given therein, therefore to establish his locus standi burden is on him to prove so to resist execution of decree upheld up to High Court. Conductof a person, resisting execution of decree, in terms of Order 21. Rule 99 r/w Section 47 CPC is very relevant. Order 21 Rule 99 CPC has laid much stress on good faith and bonafide of objection, all such ingredients and. characteristic are totally lacking m favour of objection. Objection that evidence recorded between original parties cannot be taken as evidence to dislodge defence of objection. Executing court, no doubt U/S 47 CPC can determine certain questions of facts arising out during execution proceeding but law is well settled that. it cannot go beyond original judgment and decree. Objector being a pr4y to entire proceeding in original suit cannot take any exception to evidence or material brought on file. Revision petition is dismissed.   PLJ 1998 Pesh. 31 = 1998 CLC 385.

 

100.     Dispossession by decree-holder or purchaser. (1) Where any person other than the judgment-debtor dispossessed of immovable-property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2)        The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

 

Court Decisions

Restoration of possession. Objection petition filed by a person who was son of one of defendants against whom decree had become final upto level of Supreme Court. Objector was l4ing under same roof alongwith his father. Had petitioner any genuine claim, he would have come forward on first round of litigation and would have contested suit under Section 9 of Specific Relief Act. Petitioner has some before executing court and filed objectiort petition in order to frustrate order of Supreme Court. This is impermissible, such plea cannot be examined in revisional jurisdiction which is discretionary as well as equitable in nature and cannot be extended in favour of such applicants. PLJ 1995 Lah. 559 = 1995 CLC 777.

 

Separate suit barred—Courts below had acted without lawful authority and without jurisdiction while refusing to decide objection application only on the ground that possession had been delivered and decree had been satisfied—Case was remanded and would be deemed to be pending before Executing Court with direction to decide objection application in accordance with law, as seprate suit was barred. PLJ 2002 Lah.. 1536

                Decree holders entitlement for physical 'possession of decretal land. Tenant-at-will of land in question, who was not party in suit filing objection against delivery of actual physical possession to decree holder.. Effect. Trial Court had framed issue as to whether suit was bad' for misjoinder of necessary parties and onus of same was on defendant/ judgment debtor who did not produce any evidence in support of such issue whereupon issue in question, was decided in the negative. Such rinding was maintained upto the Supreme Court. Judgment debtor had submitted objection petition against execution alleging for the first time that respondent being tenant at will in suit land, was not party in suit therefore, execution of decree was not maintainable. Such petition was dismissed and appeal against dismissal of petition met the same fate. Tenant on that very day filed similar objection petition on same grounds alleging that he was not bound by the decree. Record showed that respondent was fully aware of litigation between decree holder and judgment debtor but he was least interested to become party to such litigation. Decree holder has filed application before Tehsildar for recovery of produce wherein statement of respondent was recorded even thereafter, he never strived to become party to litigation. Objection petition of respondent does not seem to be bona fide one and the same appeared to have been filed in collusion with judgment debtor as a device to defeat decree obtained by decree holder after protracted ligation of more than 30 years. Tenants, and servants of judgment debtor were. however, bound of decree against judgment debtor unless they were occupancy tenants. Respondent admittedly was not occupancy tenant therefore, he was bound by the decree in question. Respondent however, after dispossession if he so desires, would have option to avail remedies provided under 0.21, R. 100 C.P.C. PLJ 2000 Pesh. 122.

 

101.     Bona fide claimant to be restored to possession. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of property.

 

102.     Rules not applicable to transferee pendente lite. Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

 

 103.    Certain orders conclusive and suit barred. All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite-party shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter.

Court Decisions

Question pertaining to execution and satisfaction of decree—Such questions were to be decided by Executing Court—Questions relating to title and possession were also required to be decided by Executing Court—Separate suit has been expressly barred—Courts below had acted without lawful authority and without jurisdiction while refusing to decide objection application only on the ground that possession had been delivered and decree had been satisfied—Case was remanded and would be deemed to be pending before Executing Court with direction to decide objection application in accordance with law. PLJ 2002 Lah.. 1536

 

HIGH COURTS AMENDMENTS LAHORE

R. 1: Add the following explanation to sub-rule(l) of rule 1 :-

'Explanation. The judgment-debtor may, if he so desires, pay the decretal amount, or any part thereof, into the Court under clause (a) by postal money order on a form specially approved by the High Court for the purpose. [11-7-1933].

R. 5:    In the last sentence after the words District Court and before the words of the district insert the words or the Court or any judge having jurisdiction is the place where the decree is to be executed to whom power to receive plaints has been delegated by the District judge. (23-3-1938).

R. 10:  Add the following proviso of rule 10:-

Provided that if the judgment-debtor has left the jurisdiction of the Court which passed the decree, or of the Court to which the decree has been sent, the holder of the decree may apply to the Court within whose jurisdiction the judgment-debtor is, or to the officer appointed in this behalf, to order immediate execution on the production of the decree and of an affidavit of non-satisfaction by the holder of the decree pending the receipt of an order of transfer under Section 39. (7-4-1932).

R. 17: For the words the Court may reject…. to be fixed by it in sub-rule (1) of rule 17 substitute the following words:-

the Court shall fix a time within which the defect shall be remedied, and if it is not remedied within such time, may reject the application. (7-4-1912).

R. 22: The words two years shall be substituted for the words one year wherever they occur, in rule 22.

Add the following at the end of the rule:-

 Failure to record such reasons shall be considered an irregularity not amounting to a defect in jurisdiction.

R.26:   For the words the Court may substitute the words Court shall, unless, sufficient cause is shown to the contrary, in sub-rule(3).

R.31:   In sub-rule (2) of rule 31 for the word six substitute the words three. Add the following proviso after sub-rule(2):-

 Provided that the Court may, in any special case, according to the special circumstances thereof, extend the period beyond three months; but it shall in no case exceed six months in all.

In sub-rule (3) of rule 31 for the words six months substitute the following words:-three months or such other period as may have been prescribed by the Court. (7-4-1932). R.32: In sub-rule (3) of rule 32 for the words one year substitute the words three months.

Add the following proviso to sub-rule(3) of rule 32 :-

Provided that the Court may for sufficient reasons on the application of the judgment-debtor, extend the period beyond three months; but it shall in no case exceed one year in all.

In sub-rule (4) for the words one year, substitute the words three-months or such other period as may have been prescribed by the Court. (7.4.1932)

           R.39: In sub-rule (5) of rule 39 delete the words in the civil prison occurring in two places.

R.43:   Re-number the rule 43 as sub-rule (1), and add the following further proviso and sub-rules (2) and (3) of rule 43:-

and provided also that, when the property attached consists of livestock, agricultural implements or other articles which cannot conveniently be removed, and the attaching officer does not act under the first proviso to this rule, he may, at the instance of the judgment-debtor or of the decree-holder or of any person claiming to be interested in such property, leave it in the village or place where it has been attached:

(a)        in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in Form No. 15-A if Appendix E to this Schedule, with one or more sufficient sureties for its production when called for, or

(b)        in the charge of an officer of the Court, if a suitable place for its safe custody be provided, and the remuneration of the officer for period of fifteen days at such rate as may from time to time be fixed by High Court, be paid in advance, or

(c)        in the charge of a village Lambardar of such other respectable person as will undertake to keep such property, subject to the orders of the Court, if such person enters in to a bond in Form No. 15-B of Appendix E with one or more sureties for its production.

(2)        Wherever an attachment made under the provisions of this rule ceases for any of the reasons specified in Rule 55, 57 or 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.

(3)        When property is made over to a custodian under sub-clause (a) or (c) of clause (1), the Schedule of property annexed to the bond shall be drawn up by the attaching officer in triplicate and dated and signed by:-

(a)        the custodian and his sureties;

{b)        the officer of the Court who made the attachment;

(c)        the person whose property is attached and made over; and

(d)       two respectable witnesses.

One copy will be transmitted to the Court by the attaching officer and placed on the record of the proceedings under which the attachment has been ordered, one copy will be made over to the person whose property is attached and one copy will be made over to the custodian. (13-12-1928).

Insert the following as rules 43-A to 43-D:-

43A.    (1) Whenever attached property is kept in the village or place where it attached, the attaching officer shall forthwith report the fact to the Court, and shall, with his report, forward a list of the property seized.

(2)        If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attached under second proviso to that rule, it shall be brought to the Court-house and delivered to the proper officer of the Court.

(3)        A custodian appointed under the second proviso to rule 43 may at any time terminate his responsibilities by giving notice to Court of his desire to be relieved of his trust and delivering to the proper officer of the Court the property made over to him.

(4)        When any property is taken back from a custodian, he shall be granted a receipt for the same.

43B.     (1) Whenever attached property kept in the village or place where it is attached is livestock, the person at whose instance it is retained shall provide for its maintenance, and if he fails to do so, and if it is incharge of an officer of the Court, it shall be recorded to the Court-house

Nothing in this rule shall prevent the judgment-debtor, or any person claiming to be interested in such stock, from making such arrangements for feeding the same as may not be consistent with its safe custody.

(2)        The Court may direct that any sums which have been expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the proceeds of property, if sold or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.

43C.    When an application is made for the attachment of livestock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for 15 days if within three clear days before the expiry of any such period of 15 days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

43D.    Any person who has undertaken to keep attached property under rule 43 (1) (c) shall be liable to be proceeded against as a surety under Section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.

R. 45: Add the following to sub-rule (1) of rule 45:-

and with every such application such charges as may be necessary for the custody of the crop up to the time at which it is likely to be fit to be cut or gathered shall be paid to the Court.

R. 53: (1) Add the following words to sub-rule (l)(b) of rule 53 after the words to such other Court.

and to the Court to which it has been transferred for execution.

(2) In sub-rule (l)(b) (ii), substitute the words the attached for the words its own and insert the following between the words executed or and his judgment-debtor-

with the consent of the said decree-holder expressed in writing or with the permission of the attaching Court.

(3)        In sub-rule (6), substitute the words with the knowledge, for the words after receipt of notice. (7-4-1932).

R. 54: At the end of sub-rule(2) of rule 54, substitute semi-colon for full-stop and add:-

where the property is land situated in a Cantonment, copies of the order shall also be forwarded to the Cantonment Board and to the Military Estates Officer in whose area that Cantonment is situated.

Add as sub-rule (3) of rule 54:-

(3)        The order shall take effect as against persons claiming under a gratuitous transfer from the judgment-debtor, from the date of the order of attachment, and as against other from the time they had knowledge of the passing of the order of attachment or from the date of the proclamation, whichever is earlier.

R. 58:  Add the following proviso under sub-rule (1) of rule 58;-

and that if an objection is not made within a reasonable time of the first attachment the objector shall have no further right to object to the attachment and sale of the same property in execution of the same decree, unless he can prove a title acquired subsequent to the date of the first attachment. (7-4-1972).

R. 66:  Add the following words to clause (e) of sub-rule (2) of rule 66:-

Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties.

After sub-rule (2) of rule 66 add the following as sub-rule (3), and renumber the existing sub-rules (3) and (4) as (4) and (5) respectively:

(3) Where the property to be sold is-movable property which has been made over a custodian under sub-clause (a) or(c) of clause (1) of R. 43 of this Order, the Court shall also issue a process by way of notice to the custodian, directing him to produce the property at the place of sale at a time to be specified therein, with a warning that if he fails to comply with the directions, he shall be liable to action under Section 145 of the Code of Civil Procedure. (16-5-1932).

R.68:   Lahore and N. W.F.P. In rule 68 for the words thirty read fifteen and for the words fifteen read one week (1.4.1992).

R. 69: In sub-rule (2) of rule 69 thirty days shall be substituted for seven days.

R. 75:  Lahore and N.W.F.P. In sub-rule (2) of rules 75 after the word stored add the words or can be sold to greater advantage in an unripe state. (12-5-1909 and 28-4-1938).

R. 89: In sub-rule (1) of this rule for the words any person … acquired such sale, substitute the words any person claiming any interest in the property sold at the time of the sale or at the time of making the application under this rule or acting for or in the interest of such a person.

R. 90: Add the following proviso:-

Provided further that no such sale be set aside on any ground which the applicant could have put forward before the sale was conducted.

R. 98: (1) After the words at his instigation of rule 98 where they occur add the following words:-

or on his behalf. (2) Add the following at the end of the rule 98-

such detention shall be at the public expense and the person at whose instance the detention is ordered shall not be required to pay subsistence allowance. (7.4.1992 and 2.9.1994).

R. 99: Insert in rule 99 the words to have a right after the words in good faith. (3.3.1993).

R. 103:  Lahore and N.-W.F.P. Add the following proviso:-

Provided further that no such sale be set aside on any ground which the applicant could have put forward before the sale was conducted. (7-4-1932).

R. 104:  Add the following rule 104: –

104. For the purpose of all proceedings under this Order, service on any party shall bedeemed to be sufficient if effected at the address for service referred to in Order VIII, rule 11, subject to the provisions of Order VII, rule 24, provided that this rule shall not apply to the notice prescribed by rule 22 of this Order.

N.-W.F.P.

R. 6: Read rule 6 as Rule 6 (1) and add the following sub-rule (2)

(2) Such copies and certificates may, at the request of the decree-holder, be handed over to  him or to such person as he appoints, in a sealed cover to be taken to the Court to which they are to be sent.

R. 16:  For the first proviso, to rule 16 substitute the following proviso:-

Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor; and unless an affidavit by the transferor admitting the transfer is presented with the application, the decree shall not be executed, until the Court has heard his objections (if any) to its execution.

R. 22:  The words two years shall be substituted for the words one year wherever they occur.

R. 26: For may in sub-rule (3) read shall unless good cause to the contrary is shown.

R. 29: After rule 29 the following rule shall be added:-

29A. When suit under rule 63 of this Order is pending, the Court in which such suit is filed may if it considers that execution of the former decree should be stayed, intimate the fact to the executing Court, which shall thereupon stay execution until the suit is decided.

R. 31:  In sub-rules (2) and (3) of rule 31 for the*-words six months substitute three months.

Add in sub-rules (2) and (3) to such period, exceeding six months in all as it may think fit.

R. 32:  In sub-rule (3) of rule 32 for the words for one year substitute the words for three months or such further period not exceeding one year in the whole as may be fixed by the Court.

R. 39: For sub-rule (4) of rule 39 substitute that following: All payments shall be made to the officer-in-charge of the civil prison.

In sub-rules (5) of rue 39 omit the words in the civil prison.

R. 43D: Add the following further proviso:-

 Provided further that when the attached property consists of livestock or articles which cannot conveniently be removed, and the attaching officer does not act under the first provision to this rule, he may leave it in the village or place where it has been attached in the charge of a village Lambardar of such other respectable person as will undertake keep the property, subject to the orders of the Court if such person enters into a written bond for its production.

Any person who has so undertaken to keep attached property may be proceeded against as surely under Section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.

R.53:   In sub-rule (l)(b) and in sub-rule (4), of rule 53 after the words to such other Court add the words or to any other Court to which the decree has been transferred for execution.

In sub-rule (l)(b) (ii), of rule 53 for the words its own decree, substitute the words the attached decree..

In sub-rule (6) of rule 53 for the words after receipt of notice thereof, read after receipt of notice or with the knowledge thereof.

R.54: (1) Add the following at the end of sub-rule (2) of rule 54:-

and also when the property is situate within Cantonment limits, in the office of the Local Cantonment Board and Military Estates Officer concerned.

(2)        Add the following as sub-rule (3) of rule 54:-

(3)        The order shall take effect as against purchasers for value in food faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which such order is made.

R.57:   Cancel the concluding sentence of rule 57, upon the dismissal … shall cease, and substitute the following:-

In dismissing such application the Court shall direct whether the attachment shall continue or cease. In the absence of any such directions the attachment shall be deemed to cease.

R.66:   Add the following to clause (e) of sub-rule (2) of rule 66: –

 Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties.

R.69:   In sub-rule (2), of rule 69 for the word seven, substitute the word thirty and add the following proviso:-

Provided that the Court may dispense with the consent of any judgment-debtor, who has failed to attend in answer to a notice issued under rule 66.

R.72:   For sub-rule (1) of rule 72 substitute the following: –

(l) The holder of a decree, in execution of which the property is sold, shall be competent to bid for or purchase the property without express permission of the Court, provided that the Court may on application of the judgment-debtor and for sufficient cause debar him from so bidding or purchasing.

R.89:   In sub-rule (1) of rule 89 for the words either owning, before such sale, substitute either claiming any interest in such property at the time of sale or at the time of application, or acting for or on the interest of such person.

R.98: After the words at his instigation of rule 98 wherever they occur, add the words or on his behalf, and after the words in the civil prison add the words at the expense of the State.

R.99:   For the words other than the judgment-debtor substitute the words of rule 99 other than the persons mentioned in rules 95 and 98.

 

SINDH

R. ll:    Add the following as clause (ff) to sub-rule (2) of rule 11:-

(ff) Whether the original decree-holder has transferred any part of his interest in the decree and, if so, the date of the transfer and the name and address of the parties to the transfer.

R.24:   Add the following proviso to sub-rule (2) of rule 24:- .

Provided that First Class Subordinate Judge may, in his special jurisdiction, send a process to another subordinate Court in the same district for execution by the proper officer in that Court.

R.46:   Add the following as rules 46-A to 46-1.

 

Procedure when debt or any movable property not in possession of judgment-debtor, attached.

46-A.   The Court may in the case of debt (other than a debt secured by a mortgage or a charge or by a negotiable instrument) and any movable property not in the possession of the judgment-debtor which has been attached under R.46 or R. 51 of this Order, upon the application of the attached creditor, issue notice to any person liable to pay such debt or deliver or account for such movable property (such person to be hereinafter called the garnishee calling upon him either to pay or deliver into Court the due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show-cause why he should do not do so:

Provided that if the debt or, property in respect of which the application aforesaid is made is of value beyond the pecuniary jurisdiction of the Court, the execution case shall be sent, if the attaching Court is the Karachi Small Cause Court, to the High Court, if it is any other Court, to the District to which the said Court is subordinate; and thereupon the High Court or as the case may be, the District Court or any other competent Court to which such case may be transferred shall deal with it in the same manner as if the case had been originally instituted in that Court.

Such application shall be supported by an affidavit verifying the facts alleged and stating that in the belief of the deponent the garnishee is indebted to the judgment-debtor.

 

Procedure when garnishee does not forthwith pay amount, etc.

46B.     Where the garnishee does not forthwith pay or deliver into Court the amount due from or the property deliverable by him to the judgment-debtor so much thereof as is sufficient to satisfy the decree and the cost of execution, or does not appear and show cause in answer to the such notice, and no such order being made execution may issue as though such order were a decree against him.

 

Procedure when garnishee disputes his liability.

46C.    Where garnishee disputes his liability, the Court may order that any issue or question necessary, or the determination or the liability shall be tried as if it were an issue in a suit and upon the determination of such issue shall make such order as may seem just.

 

Procedure when debt or property belongs to a third person

46D.    Where it is suggested or appears to be probable that the debt or the property attached belongs to some third person or that any third person has a lien or a charge on or an interest in it, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt or property and prove the same.

 

Order to be made on hearing such person

46E.     After hearing such third person and any other person who may subsequently be ordered to appear, or in the case of such third or other person not appearing when ordered, the Court may pass order as is hereinbefore provided, or make such other order upon such terms, of any, with respect to the lien, charge or interest (if any), of such third or other person as may seem fit and proper.

Payment or delivery under order to be a valid discharge

46F.     Payment or delivery made by the garnishee on a notice under rule 46A or under any such order as aforesaid shall be a valid discharge to him as a against the judgment-debtor and any other person ordered to appear as aforesaid, for the amount paid or levied or, as the case may be, property delivered, although such order may be set aside or reversed.

 

Procedure regarding debts owing from a firm

46G.    Debts owing from a firm carrying on business within the jurisdiction may be proceeded against under rules 46A to 46E of this Order, although one or more members of such firm may be resident outside the jurisdiction: Provided that where any person having control or  management of the partnership business or any member of the firm within the jurisdiction is served with the garnishee notice, any appearance by any member pursuant to such notice shall be a sufficient appearance by the firm.

 

The costs to be in discretion of Court

46H.    The cost of any application made under rule 46A and of any proceeding arising therefrom or incidental thereto shall be in the discretion of the Court.

 

Orders appealable

461.     An order made under rule 46B or 46E shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were decree.

R.104.               Add the following as Rule 104:

(1) Subject to the provisions of sub-rules (3) and (4) the address for service filed under rule 19 of Order 7 or rule 11 of Order 8, or, if the address has been subsequently altered under rule 24 of Order 7 or under rule 12 of Order 8, the amended address shall hold good during all execution proceedings.

(2)        Every application for execution shall .stale the address for service given by the opposite-party in the Court which passed the decree or the Court to which the decree was last transferred for execution and notices and processes shall issue to such address.

(3)        Rules 22,23,24 and 25 of Order 7 shall apply, so far as may be, to execution proceedings.

(4)        If an appeal or an application for review or revision against the decree or order sought to be executed is pending at the time when the application for execution is filed, the provisions of rule 38 of Order 41 shall, so far as may be, apply to such execution proceedings.

(5)        Nothing in sub-rules (1) to (3) of rule 104 shall apply to the notice prescribed by Rule 22 of Order 21.

 

 

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