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Civil Revision No. 574 of 1978, heard on 31st March, 1979.

--- Ss. 27-A & 28-B (1)-Distraint--Powers of Small Causes Court to auction-Provisions of Ss. 27-A and 27-B(1) of Provincial Small Cause Courts Act, held, confer no powers on

Small Causes Court to auction distrained articles.

G. Haider Ali Ghazali for Petitioner.

Abdus Sammad Hashmi for Respondent.

Date of hearing : 31st March, 1979.

This revision petition is directed against an order dated 4th February, 1978, passed by the Judge, Small Cause Court at Lahore for an auction of the petitioner's property, which had been attached under sec tion 27-A of the Punjab Small Cause Courts Act.

2. The facts of this case are that the petitioner who was a tenant of the respondent, had not paid one year's rent to him amounting to Rs. 720. The respondent applied for the issuance of a distress warrant under section 27-A of Provincial Small Cause Courts Act. It is sub mitted that as a result some immovable property belonging to the petitioner was attached and thereafter ordered to be auctioned by the impugned order.

3. The petitioner's contention is that the Court did not have the jurisdiction to auction the property, because such a power is not con ferred upon the Court by any law. Learned counsel for the respondent submits that the power is to be inferred from the provisions of Order XXI, rule 32, C. P. C.

4. Section 27-A(1) of the Provincial Small Cause Courts Act which gives the power of destraining articles is reproduced below

"27-A(1).-Any person claiming to be entitled to arrears of rent of any house or premises situate within the local limits of the Court's jurisdiction of which the annual rent does not exceed one thousand rupees or where the Court is empowered under subsection (3) of section 15 two thousand rupees, may apply to the Court for a distress warrant."

5. Section 27-B provides for the release of the distrained articles under certain circumstances. The section reads as follows :-

"27-B(1) The debtor or any other person alleging himself to be the owner of any property seized under a distress warrant under section 27-A, may, at any time within five days or such extended time as the Court may grant for reasons recorded in writing from such seizure, apply to the Court to discharge or suspend the warrant, or to release a distrained article and the Court may discharge or suspend such warrant or release such article accordingly, upon such terms as it thinks just and the Court may, in its discretion, give reasonable time to the debtor to pay the rent due from him."

6. It is apparent from these two sections that the Court has no express power to auction any property.

7. Order XXI, rule 32, C.P.C. lays down the procedure of enforcing decrees passed for specific performance, restitution of conjugal rights, or for an injunction. One of the modes of enforcing such decrees, as laid down, is by attachment of the judgment-debtor's property. Rule 32 (3) further lays down that where such attachment has remained in -force for one year, and if the judgment-debtor has not obeyed the decree, and the decree-holder has applied to have the attached property sold, such property may be sold. In the Provincial Small Cause Courts Act there is no section corresponding to sub-rule (3) of rule 32 of Order XXI, C. P. C. A Small Cause Court therefore has no power to auction the destrained articles. There is no merit in the submission that the provisions of ' Order XXI, rule 32 also apply to destrained articles.

8. This revision petition is therefore accepted. The order passed b) Judge Small Cause Court dated 4th February, 1978, ordering the peti tioner's movables is therefore set aside. However the articles will continue to remain under destraint unless the petitioner applies for their release by following the procedure prescribed by law on payment of the amount.

9. The parties are left to bear their own costs.

M. Y. M. Revision petition accepted.

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