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-----O. XXI, r. 58 - Provision does not apply to sale of mortgage property in execution of a decree for sale of mortgage property- Proceedings under such decree by attachment unnecessary. -(Mortgage].

Mahabir Prashad Singh v. Nogendra Nath Mandal A I R 1921 Cal. 479; Kundan Lal v. Allah Bakhsh A I R 1932 Lah. 618; Balijepalli Ramakoti Suryanarayana Tanodar and others v. Kampalli Ramchenlrudu and others A I R 1932 Mad. 716 and Hafiz Mohomed Ibrahim v. Bhagwandas A I R 1935 All. 897 ref.

Mansoorul Arfin for the Decree-Holder.

Qamar Muhammad Khan for the Intervenor.

The Australasia Bank Ltd., filed in this Court a mortgage suit, being 'Suit No. 51/69 against M/s. Juma Khan Agha Jawed Corporation, a Partnership Firm, for sale of the mortgage property viz., a plot of land bearing No. 17, Sheet No. 11 measuring 1120 sq. yds. situated at Golimar, Karachi. The suit was decreed on 19-9-1969. Thereafter, on 4-11-1969, the decree-holders applied for execution of the mortgage decree by sale of the mortgage property.

2. Gbulam Mohomed and Lai Mohomed both sons of Lai Khan have filed objections under Order XXI, rule 58 read with section 151, C. P. C. claiming that they are in possession of the plot of land sought to be sold under the mortgage decree for the last 30-35 years, and that the judgment debtors have no concern whatsoever with the plot of land and that the plot cannot be legally attached in execution of the decree of the plaintiff, and praying dismissal of the execution application and withdrawal of attachment.

3. At the bar Mr. Qamar Muhammad Khan has stated that the objectors are in possession of a portion measuring about 211 sq. yds. out of the plot in question and the judgment-debtor is in possession of 248.60 sq. yds. Be that as it may, the first question for consideration is whether the objections under Order XXI, rule 58, filed by the o5jectors are maintainable or not.

Rule 58 of Order XXI provides as follows;----

"58. Investigation of claims to and objections to attachment of attached property.---(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit;

'Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector :----

(a) -----------------------------------------

(b) ----------------------------------------

(c) -----------------------------------------."

A plain reading of this rule shows that the provisions thereof are applicable only in case the property is attached in execution of a decree but not to sale of mortgage property in execution of a decree for sale of mortgage property, for a mortgage decree contains, as it ought to contain, a direction for sale of the mortgage property, the proceedings under such a decree by attachment is unnecessary. In the present case property has not been attached and this fact is not now in dispute. The law on this question is well settled. However, if any precedent is required for the above view, a number of cases can be referred to, particularly the following;----

(1) Mahabir Prashad Singh v. Nogendra Nath Mandal A I R 1921 Cal. 479.

(2) Kundan Lal v. Allah Bakhsh A I R 1932 Lah. 618.

(3) Balijepalli Ramakou Suryanarayana Tanodar and others v. Kampalli Ramchandrudu and others A I R 1932 Mad. 716.

(4) Hafiz Mohomed Ibrahim v. BhagWan Das A I R 1935 All. 897.

In the first mentioned case Sanderson, C.J., observed as follows :----

"In this case there is no doubt that the decree was what is called a mortgage decree, and contained a provision that this property should be sold. Consequently, it was not open to the Execution Court to entertain and adjudicate upon a claim, which was presented by the petitioner under Order XXI, rule 58. "

4. Therefore I am of the opinion that the objections filed by Ghulam Mohomed and Lal Mohomed are misconceived and are liable to be dismissed and I do hereby dismiss the same with costs.

S. Q. Objections dismissed.

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