MUHAMMAD ISMAIL Versus ADDITIONAL DISTRICT JUDGE, DEPALPUR, DISTRICT OKARA
This be considered as admitted case.
2. Brief facts in this case are that suit for recovery of maintenanceallowance was filed by respondents Nos.3 to 7 against the petitioner, which was decree ex parte in favour of the respondents Nos.3 to 7 on 14-10-1998. Respondents Nos.3 to 7 filed an execution petition before the learned executing Court. An objection petition was filed by the petitioner for miscalculation of maintenance allowance, which was dismissed by the learned executing Court on 9-1-2002. An appeal was filed by the petitioner against the said order, a stay order was issued in appeal and the execution proceedings were stayed. The appeal was dismissed. Writ petition was filed by the petitioner, which was accepted vide judgment dated 15-3-2002 by my learned brother Mian Nazir Akhtar, J with a direction to the learned District Judge Okara to probe into the matter by dismissing the appeal before the actual date and decide the appeal afresh. The appeal was again dismissed vide judgment and decree dated 10-7-2002. Writ petition No.13992 of 2002 was filed before High Court challenging the same. This writ petition was disposed of by my learned sister Nasira Iqbal, J with the observation:
"At this stage learned counsel has submitted that petitioner is willing to deposit the entire decretal amount before the executing Court and if he deposits the same, the sale may be set aside".
The petitioner approached the learned executing Court with an application for depositing the decretal amount and setting aside the sale-deed 7-2-2002. He was allowed to deposit the decretal amount vide order dated 18-6-2002, which was deposited. On 29-1-2003 the learned executing Court dismissed the application. An appeal was filed, which too was dismissed hence, the instant writ petition.
3. Argliments advanced by learned counsel for the petitioner are that he had divorced his wife but since the order was ex parte even after divorce the maintenance allowance was granted to his ex-wife. That order dated 3-6-2003 and 29-1-2003 passed by the subordinate Courts are illegal and without jurisdiction and suffers from material irregularity as both the learned Courts below have failed to that objection petition was dismissed on 9-1-2002 by the learned Judge Family Court, Depalpur but according to the order-sheet the same was shown to be dismissed on 8-1-2002 and there are two orders Annex 1/2 and 1/3 dated 8-1-2002. In the first order no auction schedule was given while in the second order of even date auction schedule has been mentioned. This shows that there was interpolation in the first order and such an exercise is without jurisdiction and void ab initio. The learned executing Court continued the execution proceedings in spite the learned Appellate Court and the High Court in Writ Petition No.3116 of 2002 had granted stay orders. The learned executing Court while passing the order regarding the sale of petitioner's land on 8-1-2002 did not give any schedule as is apparent from the certified copy of order-sheet of even date. The case was simply adjourned for auction on 9-2-2002 in this way all the proceedings regarding the sale are bogus and it is so much so that auction notice undated does not show by whom the same was published. Even the sale price was not mentioned and it does not show any reserve price. Even in appeal filed by the petitioner before the learned Appellate Court on 21-1-2002 the execution proceedings were stayed. Appeal was adjourned for 12-2-2002 but it was dismissed on 4-2-2002 at the back of the petitioner. On 7-2-2002 a bogus auction took place and on 8-2-2002 report was submitted by the auctioneer in contradiction of all the rules and regulations. The petitioner has already deposited Rs.10,000 on 10-12-2001 and on 17-8-2002 deposited the remaining decretal amount of Rs.63,200. There was no justification for the learned executing Court to pass such order and decline to set aside the sale proceedings. That the petitioner's property was sold at lesser price as compared to market value, which amounted to Rs.4,00,000 and that too was one of the close relatives, who appeared as witness on behalf of the respondents Nos.3 to 7 and at-the time of sale property was in his possession as lessee. Further argued that in Writ Petition No.3116 of 2002 auction proceedings were stayed but despite the stay order the learned executing Court continued the sale proceedings, therefore, all these orders are liable to be set aside.
4. Learned counsel for the respondents submitted that there was no direction issued by the High Court to deposit the decretal amount. The learned executing Court was misled by the petitioner, who -directed to deposit the entire decretal amount. Being aggrieved the respondent whose sale was confirmed filed a C.M. Before the High Court. In the application filed before the learned executing Court the respondent was not made party but he made a party in this writ petition, therefore, writpetition is not maintainable, as the sale certificate has been issued. The petitioner never challenged the sale or the auction proceedings, therefore, he is estopped to challenge the same. His objection petition was dismissed and the sale certificate was issued on 18-7-2002, relied on "Hudaybia Textile Mills Ltd. And others v. Allied. Bank of Pakistan Ltd. And others" (PLD 1987 SC 512).
5. I have heard the learned counsel for the parties and perused the record. Suit for recovery of maintenance allowance was filed by Mst. Rasheedan Bibi, Mst. Khurshid Bibi, Mst. Zubaida Bibi, Mst. Kosar Perveen, Mst. Razia Perveen. This was decreed ex parte. Plaintiffs approached the learned executing Court for execution of the decree. Objection petition was filed by the judgment-debtor against the decree-holder on the basis that decree-holder No.1 was divorced on 235-1997 and decree-holders Nos.2 and 3 are major and married. There was a prayer for suspension of the attachment. Vide a detailed order this objection petition was dismissed on 9-1-2002. On appeal filed by the petitioner execution proceedings were stayed on 21-1-2002. Appeal was dismissed on 4-2-2002. Till 4-2-2002 stay order continued. Being aggrieved a writ petition was filed, which was fixed before my learned brother Mian Nazir Akhtar, J and status quo was granted on 21-2-2002. This writ petition was decided on 15-3-2002. Writ petition was accepted and impugned judgment was set aside and a direction was given to "the learned District Judge, Okara to hear the appeal himself or entrust it to some other learned Additional District Judge except Ch. Mushtaq Ahmad, learned Additional District Judge, against whom the petitioner has levelled certain allegations". On 16-9-2002 the learned executing Court stayed the proceedings but the order-sheet dated 11-7-2002, 22-7-2002 and 2-8-2002 show that proceedings continued. On 22-7-2002 the learned executing Court directed to incorporate the sale certificate vide order dated 6-9-2002 the learned executing Court directed to deposit the zar-e-decree Rs.63,200.
6. Perusal of judgment passed by my learned sister Nasira Iqbal, J. Showed that the writ petition was disposed of on the request of learned counsel for the petitioner that he be allowed to deposit the entire decretal amount and the sale was set aside by my learned sister directing him to approach the learned executing Court and directed the executing Court to act according to law. It was the duty of the learned executing Court who was in knowledge of entire coercive proceedings taken by him, could accept or refuse the application of the judgment-debtor but by accepting vide order dated 6-9-2002 he has committed a material irregularity while dismissing the application at a later stage although the learned Judge High Court in C.M. Also made it clear that it is discretion of the learned executing Court to pass appropriateorder on petitioner's application and there is no direction that any. Compliance has to be made on any particular order which has passed in this behalf by High Court.
7. Petitioner has placed on record on page 61 copy of record of this writ petition and the interim order dated 8-1-2002 where the learned Court has written that.
The second order placed on record is of the same date where on the right battom of order dated 8-1-2002 auction schedule is shown and the serial numbers 1, 2, 3 and 4 show mice, notice auction, auction and report of auction. This addition of interpolation in the order dated 8-1-2002 is a glaring illegality committed by the Court who was summoned by this Court and the learned Judge offered his apology for committing his glaring mistake. As such the whole order of auction is void ab initio any superstructure built on void order collapses.
8. Object of section 13 of the. West Pakistan Family Courts Act, 1964 is that the judgment-debtor be asked by the Court to deposit the decretal amount and if he refuses to deposit the decretal amount the decretal amount is assessed as arrears of land revenue and section 80 on-wards of the Land Revenue Act apply to the proceedings of the execution. If the Court had not understood the order passed by High Court then any clarification can be - requested by the same Court but once the Court has allowed the petitioner to deposit the entire decretal amount then he cannot dismiss the application. He was bound to set aside the sale of property. The interest of the decree-holder was only the satisfaction of decree and not the sale of C property which is also not in the interest of decree-holder being legal heir of the judgment-debtor.
9. Therefore, keeping in view the glaring illegalities committed by the Court below the writ petition is accepted, impugned orders and-consequent sale of the disputed property is hereby set aside. The respondent is at liberty to withdraw his sale price from the decretal amount deposited by the petitioner, if the Court below is satisfied the decree-holders had satisfied their claim from the amount of auction-purchaser.
H.B.T./M-443/L Petition accepted.