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Civil Appeal No. 27 of 1957, decided on 17th February 1958, from the order of District Judge, Mirpur, dated the 19th December, 1956.

, Ss. 87, 88, 89‑Civil suit by proclaimed offender to recover property dealt with under sections barred.

An absconder alleging that the auction sale of his property under S. 88, Cr. P. C. was illegal, approached the Civil Court for grant of a declaratory decree to the effect that the sale being against law did not affect his proprietary rights.

Held, that sections 87 to 89, Criminal Procedure Code being complete Code in themselves, jurisdiction of Civil Court was ousted under section 89 Criminal Procedure Code. Sale, if once affected could not be set aside even if the proclaimed offender appeared within two years and satisfied the conditions laid down in S. 89.

In the circumstances, it would be wrong to suppose that the x Legislature intended to allow the same person to institute a civil suit for possession of the property against the auction purchaser.

The Criminal Procedure, Code provides suitable remedies to a person aggrieved by proceedings under sections 87 and 88 and S. 89 is the only section under which an absconder can proceed to have his property restored.

Feroze Din v. Sardar Shah A I R 1924 Lah. 562 and Joti Parsad v. Amba A I R 1933 All. 358 ref.

Muhammad Yahya Cheema for Appellant.

Muhammad Yousaf Saraf for Respondent.

This second appeal Arises out of a suit by Fazal Dad respon dent (plaintiff) against the appellant.. Fazal Dad had alleged in his plaint that one Abdul Ghani had filed a complaint against him under section 488, A. P. C. in a Criminal Court at Mirpur, that long before this complaint was lodged he was in Lyallpur but it was given out that he had absconded and, therefore, in his absence his house and land measuring 38 kanals and 18 marlas, comprised of Khasra Nos. 13, 326, 323, 15, 34, 324, 217, 224, 232, 237, 46/49 and 50, situate in village Khokhar, Tahsil Mirpur was auctioned and was purchased by the appellant for a sum of Rs. 1,300, the sale being confirmed on the 17th August, 1954. It was alleged that the auction sale was illegal for the following reasons :‑

(1) that the Criminal Court had no jurisdiction as he had already gone out of its jurisdiction

(2) that no proclamation according to law had been issued

(3) that no one had any knowledge of the attachment of the property nor was the auction held according to law.

It was, therefore, prayed that he should be granted a declara tory decree with consequential relief to the effect that the auction sale being against law did not affect his proprietary rights in the suit property and that he was entitled to get back the possession, The suit was contested on several grounds, one relevant for the purpose of this appeal being that the civil suit was not competent. The Sub‑Judge, Mirpur by his order dated the 19th April, 1956 held that the Civil Court had no jurisdiction to hear the suit. He also held that the proceedings by which auction sale had been effected were in order. He, therefore, dismissed the plaintiff‑respondent's suit. On appeal, the learned District Judge by his order dated the 19th December, 1956 disagreed with the Sub‑Judge and setting aside his order decreed the plaintiff's suit with costs. The defendant has now comic up in second appeal to this Court.

The only point stressed is that the Civil Court has no jurisdic tion to hear this suit. Reliance was placed in this connection on Feroze Din v. Sardar Shah (A I R 1924 Lah. 562) and Joti Parsad v. Amba (A I R 1933 All. 358). As against this 27 All. 572 was relied upon. The Lahore ruling has elaborately discussed the case law and disagreed with the Allahabad judgment of Blair (J). According to Justice Blair, section 89, Criminal Procedure Code is limited in scope. Under it an absconder returning or brought to the Court by which attachment was made is entitled to prove that he did not abscond or conceal himself to avoid the execution of warrant and also that he had no notice of the proclamation to enable him to attend the Court in time. He can thus get some relief under it but section 89, Criminal Procedure Code does not come to his rescue the proclamation of sale is null in point of law. In such case he can seek his remedy in a Civil Court. With all respect to Justice Blair, it may be said that the Criminal Procedure Code provides suitable remedies to a person aggrieved by proceeding under sections 87 and 88, Criminal Procedure Code. If he do: not avail of such remedies, just as a person who allows his claim to get time barred, he need not complain and must rest content with his lot. In section 88, Criminal Procedure Code, six mono time must expire before an attached property is sold or if any claim has been preferred or objection made, till the claim, preferred or objection made has been disposed of. Section 89, Criminal Procedure Code prescribes a period of two years from attachment for an aggrieved person to seek a remedy under the section. If in spite of such a long period, he does not avail of the remedy, he is himself to blame. Non‑compliance with the provisions of section 87, Criminal Procedure Code can be easily cured if the non‑compliance is brought to the notice of the Court in time before the sale is effected. The mistakes can be rectified and illegalities can be cured by issuing fresh orders in accordance, with the requirements of the section. The difficulty arises, if t I irregularity or illegality is not pointed out in time and the sale is completed. Section 89, Criminal Procedure Code is then the only section which provides remedy to the absconder in such a case. If within the period prescribed by section 89, Cr. P. C. t I absconder satisfies the Court that due to the irregularity illegality in the issuing of the proclamation he was unable attend the Court within the time specified, his property or, if the same has been sold, the net proceeds of the sale, or, if the p;,: thereof only has been sold, the net proceeds of the sale and the residue of the property, shall after satisfying thereout all cost incurred in consequence of the attachment, be delivered to hint. This would show that sections 87‑89, Criminal Procedure Court form a complete Code by themselves and, therefore, the jurisdic tion of the Civil Court is ousted. From the perusal of sections 87 89, Cr. P. C. it is clear that the intention of the Legislation, was to lay down that a sale, if once effected, cannot be set aside even if the proclaimed offender appears with in two years and satisfies the conditions laid down in section 89, Criminal Proce dure Code. In the circumstances, it would be wrong to suppose that the Legislature intended to allow the same person to institute a civil suit for possession of the property against the auction purchaser. It should not be ignored that the law aims at making the title of the purchaser at a Court sale as safe possible and that the provisions of the sections 87, 89, Criminal Procedure Code are of a penal character and, therefor whatever remedy was thought reasonable for the absconder was provided in these sections. I, therefore, hold that the Civil Court has no jurisdiction to hear this suit and the Sub‑Judge was right in dismissing it. The result is that I accept the appeal, set aside the order of the District Judge, Mirpur dated the 1901 December, 1956, and dismiss the suit of the plaintiff‑respondent with costs throughout.

S.K. A.H. Appeal accepted.

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