Mst. SURAYYA BEGUM vs MUSLIM COMMERCIAL BANK LTD. and 4 others

' MAHBOOB AHMAD,J.--This first appeal is directed against order dated 11-11-1984 passed by the learned Special Judge (Banking Court) Lahore, whereby he rejected the objection petition of the appellant against the execution of a decree passed by the said Court.

2. The facts necessary for the purposes of this appeal, briefly stated, are that on 14-11-1980 respondent No, 1, Muslim Commercial Bank Limited, filed a suit in the Court of Special Judge (Banking Court) Lahore against respondents Nos. 2 to 5 for recovery of Rs,8,89,854. On 14-7-1981 (wrongly given as 2-2-1981 in the impugned order) an ex parte decree was passed against respondents Nos. 2 to 5 by the said Special Judge. Respondent No, 1 instituted an application for execution of the decree, inter alia, claiming sale of property No, 17-A-III, Gulberg III, Lahore, stating that the said property was owned by respondent No,5. The property was attached by order dated 19-11-1983 passed by the executing Court and the same was ordered to be sold through public auction on 26-4-1984.

3. The appellant filed an application on 29-4-1984 before the learned Special Judge (Banking Court) praying that auction orders in respect of the property in dispute may be set aside and that pending decision of the application the auction proceedings be suspended.

4. The learned executing Court by its order dated 12-94984 directed that before framing an issue on the petition it would like to examine the parties in person. In pursuance of this order, the appellant was examined and after recording her statement on 11-11-1984, impugned order Was passed whereby the application of the appellant was dismissed.

5. The appellant feeling aggrieved of the above order has come up in the present appeal.

6. The learned counsel for the appellant has raised the following contentitions:--

(1) That the property was owned by the appellant even before the institution of the suit, having been purchased from respondent No, 5 on 18-3-1980 through a registered sale-deed and for bona fide consideration and thus the same was not liable to attachment and sale in execution of the decree which was not against the appellant.

(2) That no issues were framed although by order dated 12-9-1984 the executing Court itself had observed that the same would be framed after personal examination of the parties. The decision of the matter without framing the issues and without holding an investigation into the matter is against law and, therefore, not sustainable.

(3) That the order is based on conjectures as is apparent from its bare perusal, for example, it has been presumed in the order that the registration of the sale-deed in favour of the appellant was subsequent to the institution of the suit.

(4) That the only material available on record was the statement of the appellant which abundantly established that the property was owned by her in her personal capacity and thus neither liable to attachment nor sale in auction proceedings in question.

7. On the contrary, the learned counsel for respondent No, 1 submitted that the transaction of sale which had been relied upon to seek the recall of the order of auction was neither bona fide nor for adequate consideration and was in fact a "Benami" transaction.

8. The next contention of the learned counsel for respondent No, 1 was that the attachment order having been made on 19-11-1983 the making of an application by the appellant on 29-4-1984 for setting aside the order of auction is against the spirit of the proviso to Rule 58 of Order XXI of the Code of Civil Procedure and, therefore, the application of the appellant before the executing Court has been rightly rejected vide the impugned order.

9. We have given anxious consideration to the controversy involved and are of the view that the impugned order does not merit to be sustained. Although no provision of law has been quoted under which the application of the appellant was filed before the learned Special Judge (Banking Court) but the contents thereof do spell out that the same had been tiled under Order XXI Rule 58 C.P.C. From a conjunctive reading of Rules 58 and 59 of Order XXI CPC it clearly emerges that an investigation on the lines indicated in the aforementioned provisions has to be conducted before a decision on such an objection application is made. The obvious and the only just procedure that could be adopted for an investigation of claims and objections to attachment of any property could be by allowing the parties adequate and sufficient opportunity of establishing their respective claims. The affording of an opportunity becomes all the mere necessary rather mandatory in view of the provision contained in Rule 62 of Order XXI C.P.C. Which lays down that all claims relating to the rights, title or interest of the the claimant or objector in the attached property shall be adjudicated upon and determined by the Court and that no separate suit shall lie to establish such title, right or interest. The perfunctory manner in which the matter has been dealt with by the learned executing Court through the impugned order is manifestly violative of the provisions of law governing the subject. The said order, therefore, on this short ground alone is liable to be set aside.

10. It may also be pertinently observed that it has been correctly pointed out by the learned counsel for the appellant that the impugned order is based on conjectures only. In para 2 of the impugned order the learned Special Judge (Banking Court) Lahore has observed that respondent No, 5 against whom the decree for the execution of which the house in dispute was attached had been sold to the appellant on 18th of March, 1980; whilst in para 3 of the said order it has been stated that the suit in the Special Court had been instituted in 1980 and respondent No, 5 who is the husband of the objector/appellant being a party to the suit and living 24 hours in the house of the husband and having good relations with him must have known about the institution of the suit regarding the recovery of loan which had been obtained by her husband years before 1980. It appears that the learned Special Judge (Banking Court) on the basis of his above observations had refused to believe that the appellant (wife) living 24 hours in the house of her husband (judgment-debtor) and having good relations with him had not known about the institution of the suit regarding recovery of loan which had been obtained by her husband and, therefore, recorded a finding that the sale was mala fide on the part of the husband and wife. Now we find nothing on record nor anything has been referred to us to show how the learned Special Judge (Banking Court) had drawn the inferences that the husband and wife were living together, were having good relations and that the wife had come to know about the filing of the suit. Again the tenor of the language used in the impugned order also indicates that the learned lower Court was assuming that the registered sale-deed was executed after the institution of the suit in 1980 whereas according to the record the suit had been instituted subsequent to the registration of the sale-deed on 18th of March, 1980 in that the suit as per record was instituted on 14th of September, 1980.

11. Be that as it may, without going into the merits of the case lest it causes I prejudice to any of the parties in the subsequent proceedings, we suffice by claim of the appellant as required by Order XXI Rules 58, 59 and 62 of C.P.C.I and thus the said order cannot be maintained.

12. Before parting with this case we may observe that the submissions of the learned counsel for the contesting respondent also cannot be considered by us in this appeal as there is nothing on record to show that the "Benami" status of transaction of sale in question in any manner stands established from the available record. In fact the learned counsel could urge nothing when we pointedly asked him as to how he can effectively argue that there was no adequate consideration in respect of the sale transacting of the house in dispute or for that matter it was a "Benami" transaction.

13. The invocation of the proviso to Rule 58 (1) of Order XXI C.P.C. Is also not possible at the present stage as there is again-nothing on record to show any established inordinate delay as envisaged by the said provision which may entail the rejection of the claim/objection without resorting to investigation required to be undertaken by the parent rule. Needless to mention that a proviso to any parent provision has to be read very cautiously and the intended whittling effect thereof cannot be so extended as to defeat the provision itself inasmuch as it is not to be presumed that the Legislature intended to take away by one hand through a proviso what it has basically conferred through the other hand by the parent provision.

14. In view of the foreging discussion, accepting this appeal we set aside the impugned order of the learned Special Judge (Banking Court) Lahore dated E 11-11-1984 and remand the case to the said Court for adjudication afresh in accordance with law.

' There will, however, be no order as to costs.

15. It is further directed- that the learned Special Judge (Banking Court) Lahore who may become seized of the matter on remand shall decide the case within six months from the date of this order and report compliance to the Registrar of this Court.

16. It is also directed that the property in dispute shall remain attached during the proceedings before the learned Special Judge (Banking Court) Lahore and that the attachment will remain in force only till the matter is decided afresh by the said Court.