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Execution Second Appeal No. 1 of 1969/BWP, decided on 16th June, 1979.

‑‑‑O. I, r. 10 and S. 47‑Proceedings under S. 47 essentially between parties to suit‑Auction‑purchaser, held, not necessary party to such proceedings.

Fatema Khatun v. Haran Barui A 1 R 1947 Cal. 132 ; Azhar Hussain v. Muhammad Shibli A I R 1939 ‑Nag. 183 and Brijlal v. Manohar Parshad A I R 1934 Nag. 21 ref.

‑‑ O. XX, r. 22 and Punjab Alienation of Land Act (I of 1900), Ss. 2 (3) and 16 (1) read with Notification No. LR 8‑58 dated 29th September, 1958‑Sale of land‑Land sold in execution of decree admittedly used for agricultural: purposes and covered by definition of land' under S. 2(3) ‑ Petitioner belonging to an agricultural tribe covering Notification No. L R 8‑58‑Land belong ing to such petitioner, held, cannot be sold in execution of decree or order of any civil Court‑Execution order set aside in : circum stances of case.

Inayat Ali Shah for Appellant.

M. A. Shahid Siddiqui for Respondent.

Date of hearing : 10th‑ June, 1979.

The respondent in this execution second appeal obtained a money decree in the sum of Rs. 25,000 with interest and costs against the appel lant from a Civil Court at Karachi. Ho applied for the execution of the decree before the Senior Civil Judge at Rahimyarkhan. On 29th June, 1965 the executing Court ordered the attachment of the agricultural land of the appellant. However, this application was dismissed on 31st May, 1968 when the respondent failed to appear on 31st May, 1968 he moved another application for the execution in the same Court. On this applica tion the Court issued a notice to the appellant. The‑notice could not be served upon him as, according to the report of the process‑server, he had shifted away to some other address. Without making any further effort to get service of the notice effected upon him the Court on 27th September, 1968, directed that a warrant be issued for the attachment of the land and other property of the appellant. This warrant could not be executed till 28th March, 1969 for the reason that the respondent failed to supply the necessary revenue papers to the Court. On 28th March, 1969 the Court, relying upon the attachment made in the course of the earlier application, directed the sale of the agricultural land of the appellant and appointed Mr. Azim Asbraf, Advocate, to conduct the auction. At first it fixed 18th April, 1969 for the purpose of holding the auction but later, on the representation of Mr. Azim Ashraf, it changed the date to 27th August, 1969.

2. On 26th April, 1969 the appellant made an application before the executing Court praying for the withdrawal of the order of auction on a number of grounds. The learned Court thought that the applica tion had been made too late nevertheless it directed that if the appellant deposited the decretal amount in Court the auction proceedings should trot be continued. Instead of depositing the decretal amount the appel lant challenged the order of the executing Court in appeal before the District Judge. The learned District Judge ‑dismissed the appeal on 18th June, 1969. The auction was duly held on the date appointed by the executing Court and the highest bid was offered by one Ahmad Khan. Later Ahmad Khan deposited the entire amount of his bid in the Court. However, the sale in his favour could not be confirmed on account of a stay order issued by this Court.

3. I find that Ahmad 'Khan has not been made a party to this appeal. But this is of no consequence for the reason that the proceedings before me fall under' section 47 of the Code of Civil Procedure and in proceedings of this nature which are essentially between the parties to the suit an auction‑purchaser is not regarded as a necessary party. Reference in this context is invited to Fatema Khatun v. Har an Barui A I R 1947 Cal. 132, Azhar Hussain v. Muhammad Shibli A I R 1939 Nag. 183 and Brialal v. Manohar Parshad A I R 1934 Nag. 21.

4. On behalf of the appellant three contentions have been raised in support of this appeal. In the first place it is submitted that as the application for execution was made more than a year after the date of the decree, the executing Court was bound to serve a show‑cause notice upon the appellant before directing the sale of his property in support of this submission reference has been made to the provisions of rule 22 of Order XXI of the Code of Civil Procedure, Secondly, it is contended that the order directing sale of the property was bad law. As at the time it is unnecessary for me to consider either of these two contentions for in my opinion this appeal can be disposed of on the basis of the third contention of the learned counsel which is to the effect that the sale was bad in law as it violated the provisions of the Punjab Alienation of Land Act, 1900. Admittedly the land sold in execution of the decree was used for agricultural purposes and was thus covered by the definition of the expression land' as given in section 2, subsection (3J of the said Act. On 29th September, 1958 the Government of West Pakistan issued a notification, bearing No. L. R. 3‑58, under section 4 of the Act whereby for the purposes of the Act it declared all persons holding land as landlord or tenant or ordinarily residing 'in the Districts of Bahgwalpur. Bahawal nagai and Rahimyarkhan to be a group of agricultural tribe. This notifica tion is wide enough to include the appellant also. Now, section 16, sub section (1) of the Act lays down that no land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil Court. In view of this clear prohibition the learned executing Court could not order the sale of the appellant's land satisfy a money decree obtained by the respondent. When confronted with this situation the learned counsel representing the respondent frankly conceded that he was unable to support the order of the learned executing Court.

8. In view of the above legal position I hold that the learned execut ing Court acted illegally in making an order for the sale of the appellant's agricultural land. Accordingly I set aside the said order and the sub sequent proceedings taken by respondent. The appellant shall also have his costs from the respondent 1.

Execution second appeal allowed

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