MUHAMMAD TARIQ vs ZULFIQAR ALI and others

' SARDAR MUHAMMAD RAZA KHAN, J.--- Muhammad Tariq son of Atta Muhammad seeks leave to appeal against the judgment, dated 10-2-2005 of a learned Single Judge of Lahore High Court whereby his First Appeal No,47 of 2005 in execution matter was dismissed and the property in dispute was held liable to be attached and sold in execution proceedings filed by Attique Ahmad the decree-holder against Zulfiqar Ali the judgment-debtor.

2. Attique Ahmad filed a suit for the recovery of money against Zulfiqar Ali invoking summary jurisdiction of the District Court under Order XXXVII of the C.P.C. It was decreed on 26-5-2004.

3. During execution proceedings when the property happened to be sold, Muhammad Tariq petitioner came up with an objection petition that the property belonging to him could not be sold in the satisfaction of the decree because it was purchased by him from the judgment-debtor on the basis of a sale-deed executed on 25-1-2003 and subsequently registered on 30-1-2003. The Executing Court as well as the High Court did not agree to the aforesaid objection and dismissed the application. The stance of the decree-holder is that the disputed property being the subject- matter of the civil suit could never be transferred during the pendency of the civil suit and that if at all transferred, it was hit by the principle of lis pendens and thus, being considered to be the property of decree-holder, it could well be attached and sold for the satisfaction of decree.

4. After having heard the learned counsel on either side and having comprehended the entire background, we are of the considered view that both the Courts have not appreciated the matter in its true legal perspective. No doubt the defendant in the suit had sold this property to the present petitioner who happened to be his brother-in-law, during the pendency of the suit yet it could neither be declared as the suit property nor the subject-matter of the suit. The fact remains that the subject-matter of the suit was only the money involved. The disputed property could only become the subject-matter, had it been attached before judgment in accordance with the provisions of the C.P.C. It is admitted fact that though mentioned in the plaint and though a relief sought to some effect, yet it was never attached before judgment. Thus, it could neither be dubbed as the subject-matter of the suit nor could be sold in the satisfaction of decree.

5. The principle of lis pendens is also misconstrued because it applied to a lis which is the subject- matter of the suit and in that too, the transaction is never considered void but the validity of the same is deferred to the conclusion of the trial and is always subject to what the Court finally determines thereabout. In the instant case the sale was never challenged before the trial Court on the principle of lis pendens and there is no final verdict of the Court regarding the validity or the genuineness thereof. It is rightly so because it never had been the subject-matter of the suit nor a matter lis pendens.

6. We agree with the learned counsel for the decree-holder that the judgment-debtor with mala fide intention has sold the same to his own brother-in-law in order to avoid sale in execution but in the absence of attachment before judgment, we can only say that it might be a device unless proved to be a disguise. It appears that the plaintiff/decree-holder has exhibited his negligence to take proper action at a proper time. No doubt the relationship is admitted between the vendor and the vendee but possibility cannot be ruled out that between such relations a genuine transaction can also take place.

7. Consequently, the petitioner after conversion into appeal is hereby accepted, the impugned judgment, dated 10-2-2005 of the High Court is set aside. The property in dispute is declared not to be the subject-matter of the suit. The decree-holder can go for any other property of the judgment-debtor and can also invoke all or any of the coercive measures against the judgment- debtor as provided by Order XXI of the C.P.C.