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Miscellaneous Appeals Nos.20, 21, 30 and 31 of 1985, decided on .11th December, 1986.

---O.XXI, R.58--Execution proceedings--Objection of intervenor, inquiry into--Order of executing Court rejecting applications of intervenors without holding inquiry in respect of their objections as required by law and without giving them opportunity to lead evidence in support of their applications, held, was liable to be set aside--High Court setting aside order of executing Court below, remanded case with directions to give parties opportunity to lead evidence according to law.

Usman Ghani Rashid for Appellants.

Nasrullah Awan for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 11th December, 1986.

These are four Miscellaneous Appeals arising out of orders, dated 15-7-1985 passed by the learned District Judge, Sanghar, in Execution Applications Nos.13 and 14 of 1982, rejecting the objections of the appellants under Order 21, Rule 58, C.P.C.

2. The facts, briefly stated, relevant for purposes of these appeals are that respondent No.1 obtained two money decrees dated 26-2-1979, on two awards filed and made rule of the Court, subject to some modification. On 9-9-1982 two executions were filed by the said respondent in the Court of District Judge, Sanghar, seeking attachment of immovable properties of respondent No.2, the Judgment-debtor. The appellants filed applications under Order 21, rule 58, CPC in the executing Court, claiming that the properties sought to be attached have already been transferred on 2-1-1983 by registered sale-deed in favour of appellants in Appeals Nos.21 and 22 of 1985 and by gift deed dated 27-2-1985 in favour of the appellants in Appeals Nos. 30 and 31 of 1985. The learned District Judge, Sanghar dismissed the said objections on the ground that under Section 52 of the Transfer of Property Act the said properties could not be transferred during the pendency of the proceedings.

3. Learned counsel for the appellants contends that the learned lower Court has rejected the applications of the appellants- without holding an enquiry as required by law and without giving them air opportunity to lead the evidence. He further contends that the provisions of Section 52, Transfer of Property Act, 1882 are not attracted as the decrees obtained by the respondents were simple money decrees.

4. In support of his first submission the learned counsel submitted that the learned Lower Court failed to investigate the claims and objections raised by the appellants. It seems fair and just that on applications under Order 21, rule 58, CPC the claim or objection be investigated, which can only be done by recording evidence, of the claimant or objector, and in all other respects, as if he was a party to the suit, unless it appears to the Court that the claim or objection has been designedly or unnecessarily delayed. The learned lower court does not appear to have recorded any evidence, nor it has given any reason for not doing the same, as required in Rule 58.

5. As regards the second submission that Section 52, Transfer of Property Act, 1882 does not apply as the right to immovable property was not directly and specifically in question in the suit, the words used in the section are "suit or proceedings". Claiming attachment of immovable property in execution proceedings is directly and specifically in question. The doctrine of lis pendens will, therefore, be applicable to these proceedings, but there is a point which does not appear to have been brought to the notice of the learned District Judge. Section 52 of the Transfer of Property Act, as quoted in the impugned order, does not take into account the Sind amendment by the Transfer of Property and the Registration Sind Amendments Act 1939 (Sind Act XIV of 1939). After the words 'question' in Section 52 of the Transfer of Property Act, 1882 the following words have been added, "if a notice of pendency of such suit or proceeding is registered under Section 18 of the Registration Act, 1908 and after the word 'property' where it occurs for the second time the words "after notice is so registered" have been inserted. The question whether any notice was registered by the decree-holder in respect of the properties in question also requires evidence.

6. By means of the application under Section 3 of the Limitation Act dated 13-2-1984 filed by the L. Rs. of Judgment-debtor No.1, a plea of limitation has also been taken, which too appears to have gone unnoticed by the learned Judge.

7. For the aforesaid reasons, I set aside the impugned orders passed by the learned District Judge and allow all the four appeals. The cases are remanded to the learned District Judge, Sanghar for re-hearing after giving an opportunity to the parties to lead their evidence, according to law.

H. B. T./N-51/K Order accordingly.

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