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Constitutional Petition No.D‑855 of 1983, decided do 5th September, 1984.
‑‑Art.9‑‑Auction of alienated property‑‑Sale in respect of property in dispute effected in favour of petitioner through consent decree passed by Civil Court on basis of compromise between petitioner and vendor‑ Vendor subsequently was declared absconder and was fined by Summary Military Court in proceedings in some other case against him‑‑Collector in order to effect recovery of said fine issued notice for auction of alienated property without any order either of Martial Law Authorities or Summary Military Court for attachment of said property for recovery of amount of fine‑‑High Court in constitutional jurisdiction stopped auction of property in dispute till time either Summary Military Court or Martial Law Authorities passed order for attaching property for recovery of above fine or consent decree was set aside by Court which had passed same.
Suleman Kassim for Petitioner.
Abdul Sattar Shaikh A.A.‑G. for Respondents.
Date of hearing: 5th September, 1984.
.‑‑The petitioner through this petition has impugned the auction notice issued by respondent No.1 in respect of Bungalow No.72, situated in Block No.7/B, Overseas Co‑operative Housing Society Ltd., Karachi (hereinafter referred to as the property). The brief facts leading to the filing of the above petition are that the petitioner allegedly entered into a sale agreement, dated 30th June, 1979 with one Ikhlas Ahmad son of Muhammad Ahmed in respect of the property for the purchase of the same for a sum of Rs.2,50,000, out of which a sum of Rs.25,000 was allegedly paid as advance money to said Ikhlas Ahmed‑ It seems that the petitioner filed a suit on 23‑1‑1981 in this Court for specific performance of the above sale agreement. The above suit was not contested by Ikhlas Ahmed, inasmuch as no written statement was filed. On the other hand an application for Chambers order as moved on 22‑2‑1982 before a learned single Judge on a compromise application. The suit was decreed on the basis of the compromise application which was signed on behalf of said Ikhlas Ahmed by his attorney Muhammad Yousuf Bari. It also seems that there were" certain proceedings under the Martial Law Regulations against said Ikhlas Ahmed pending in a Summary Military Court, in which he was declared absconder. The above case resulted in conviction by an order, dated 9‑11‑1981. Said Ikhlas Ahmed was sentenced 1 year R.I. and a fine of Rs. 2 lacs. It also seems that Ikhlas Ahmed is still absconding.
It seems that respondent No.1 in order to effect the recovery of the above fine has issued the impugned notice for auction of the property under the West Pakistan Land Revenue Act. The petitioner being aggrieved by the above action has filed the present petition.
We have asked Mr. Sattar A. Shaikh, learned A.A.‑G. Sind to produce an order either of a Martial Law Authorities or a Summary Military Court attaching the property for the recovery of the above amount of fine. He has candidly submitted that there is no such order passed either by the Martial Law Court concerned or by the Martial Law Authorities.
2. Mr. Suleman Kassam, learned counsel for the petitioner has contended that since the petitioner has acquired interest in the property under the above consent decree of this Court her property cannot be attached and auction for the recovery of fine against Ikhlas Ahmed and that the proper remedy for the respondents is to approach the Court which had passed decree under section 12(2), C.P.C.
On the other hand, Mr. Sattar A. Shaikh, learned A.A.‑G. has submitted that the above decree was collusive inasmuch as the alleged sale has been made by Ikhlas Ahmed in favour of her sister i.e. the petitioner. However, it may be observed that there is nothing on the record to indicate that the petitioner is a sister of Ikhlas Ahmed.
3. In our view, it will be proper that respondent No.1 should not auction the property in question till the time either Summary Military Court or the Martial Law Authorities pass an order attaching the property for the recovery of the above fine or the above consent decree is set aside by the Court which had passed the same. It may be stated that the above suit was filed on 23‑11‑1981, whereas the conviction was recorded on 9‑12‑1981 by a Summary Military Court. However, the petitioner shall maintain status quo (i.e. she will not seek execution of a sale‑deed nor shall take any other step in relation to the property for completing her title) for a period of 3 months, so that the respondents, if they so advised, may take action in accordance with law as per above observations.
The petition stands disposed of in the above terms with no order as to costs.
H . B . T . Order accordingly.
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