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Suit No.555 of 1986, decided on 13th June, 1987.

‑‑‑O.XXI, Rr. 43, 44 & 54‑‑Execution of decree‑‑Mode of execution and attachment in respect of movable and immovable properties.

The mode of execution and attachment has been provided in respect of the movable properties, immovable properties, sale of agricultural proceed, negotiable instrument and shares in Corporation in O. XXI, C.P.C. The provisions regarding execution of decree and attachment and sale of movable and immovable properties have separately been given. Unlike immovable property, the method of attachment of movable properties as provided by Order XXI, rule 43 is that "the attachment shall be made by actual seizure and the Attaching Officer shall keep the property in his own custody or in the custody of one of his subordinates and shall be responsible for the custody thereof". The method for attachment of agriculture produce is provided by Order XXI, rule 44. The attachment of immovable property can be made in the manner provided in Order XXI, rule 54. The method of attaching immovable property is completely different from the mode of attaching the movable property. Under Order XXI, rule 54 an immovable property can be attached by an order prohibiting the judgment‑debtor from transferring or charging the property in any way which shall be proclaimed by beat of drum on or adjacent to such property and a copy shall be affixed on conspicuous part of the property and on conspicuous part of the Court house, and also in the District Court. There is inherent difference in mode of attachment of immovable and movable property. The movable property can be attached by actual seizure and taking custody of the goods by the Court Officer. On the other hand the immovable property is attached by passing a restraint order on the judgment‑debtor and by publicising such order and pasting it at the property and the Court notice board. These modes of attachment seem reasonable, because the judgment‑debtor cannot remove the immovable property, he can only sell or dispose it of. Therefore, the judgment‑debtor is restrained by the Court from exercising such right. In case of movable property there is every possibility that a dishonest judgment‑debtor may after the service of notice remove the same, and it may be difficult to find it out. Probably for this reason and with a view to afford protection to the decree‑holder the movable property is required to be actually seized and unless seizure is complete, the attachment remains ineffective. Thus basic difference between the mode of attachment in both types of the properties should be kept in mind while applying the principles laid down in those authorities. They basically deal with the procedure provided for attachment for immovable property.

Under Order XXI, rule 43 movable property is legally attached if there is an order by the Court and is enforced by actual ,seizure of property.

Mst. Khursheed Begum etc. v. Ghulam Kubra etc. 1982 SCMR 90; Mst. Sahibuddin Nisa v Mahmooda Begum PLD 1959 Lah. 511; Munawar Hussain and others v Rehmat Ali Hussain PLD 1977 Lah. 418 & Mohammad Ilyas v. Haroon Textile Mills PLD 1977 Kar. 681 ref.

‑‑‑O. VII, R. 11 & O. XXI, Rr. 58, 60 & 62‑‑Objection to attachment, dismissal of‑‑Suit for declaration about ownership of attached property, whether maintainable‑‑Where objection to attachment of property was dismissed, remedy against such dismissal, held, would be to file appeal against such dismissal and not a civil suit‑‑Where a suit had been filed by judgment‑debtor against attachment of property, remedy available to plaintiff would lie under O. XXI, R. 62, C.P.C. which bars a suit filed for establishing right, title or interest of the claimant in such property‑‑Legality of attachment had to be decided by executing Court‑‑Where plaintiff's objection was dismissed as premature and for want of prima facie evidence of title to the goods, such plaintiffs could repeat their objection before executing Court after attachment was complete‑‑Suit to challenge attachment of property being barred under O.XXI, R.62, C.P.C. plaint was rejected.

Kulsoom Bai v. Nargis 1985 S C M R 1275 rel.

Abul Inam for Plaintiffs.

A.R. Akhtar for Respondent.

Date for hearing: 21st April, 1987.

This is an application under Order VII rule 11 C . P. C . for rejection of , the plaint on the ground that the suit is barred under Order XXI, Rule 62, C.P.C. Briefly the facts as stated in the plaint are that the defendant filed a suit against M/s Maker & Co. and others including Kassim Chapra for recovery of Rs.33,28,153.54 which was decreed by this Court on 10‑11‑1977 in terms of the compromise. Kassim Chapra is the husband of plaintiff No.l and father of plaintiff No.2. The defendant had also filed another suit No.230/76 against H. M. Silk Mills Ltd., and Kassim Chapra which was also decreed in terms of compromise on 10‑11‑1977. The defendant filed execution Application No.103/80 for enforcement of decree passed in Suit No.327/76 by seeking attachment and sale of movable properties including household goods such as television, refrigerator radio, furniture, fixtures and electrical appliances etc. which were to be found in possession of Kassim Chapra at 34 Alamgir Road, Karachi. The defendant filed an application later for change of address of the judgment debtor which was given as 23 Karachi Memon Cooperative Housing Society Ltd. Karachi. It is alleged that this house is owned and belongs to the plaintiff No.l who had purchased the same out of her own resources from one Iqbal on 2‑2‑1983 through a registered sale deed. It is further stated that all the movables sought to be attached and lying in the house are exclusively owned and belong to the plaintiff and not a single item of movable property lying in the house is owned by or belongs to Kassim Chapra against whom the defendants have filed the aforesaid Execution Application No.103/80. In the execution proceedings the plaintiffs filed an application under Order XXI rule 58 and Order XXI rule 99 C.P.C., but the same was dismissed on 6‑7‑1986 on the ground that the properties were not attached in terms of Order XXI rule 43 C . P . C . nor the plaintiffs had produced any prima facie evidence of the ownership of the movable properties. The plaintiffs therefore filed the suit for declaration that the movable properties in House No.23 Karachi Memon Cooperative Housing Society Ltd. Karachi are owned and belong to the plaintiffs. The defendants challenged the maintainability of the suit on the ground that it is barred under Order XXI rule 62 C.P.C. which reads as follows:

"62. Question relating to Rights etc., of claimant in attached property to be decided by Court. All questions relating to the right, title or interest of claimant or objector in the attached property shall be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest."

This provision was inserted in place of the earlier provisions by Ordinance XII of 1972. By the same Ordinance Order XXI rule 63 was omitted which provided that where a claim or an objection is preferred the party against whom an order is made, may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit no order shall be conclusive. This background is necessary to appreciate the contention raised by the learned counsel for the defendants. Mr. Abul Inam the learned counsel for the plaintiffs has relied on Mst. Khursheed Begum etc. v. Ghulam Kubra etc., 1982 S C M R 90 where taking note of the conflict of views expressed in Mst. Sahibuddin Nisa v Mahmooda Begum PLD 1959 Lah. 511 and Munawar Hussain and others v. Rehmat Ali Hussain PLD 1977 Lah. 418, the view taken in the former case was approved and following observation was made:‑

"It follows consistently from these decisions of this Court that an executing Court has the power to entertain and adjudicate an objection petition filed by persons not claiming through the judgment‑debtor, even before their physical dispossession from the property."

The contention of the learned counsel for the defendants is that in view of the clear provisions of Order XXI rule 62 the suit is barred. Reliance has been placed on Mohammad Ilyas v. Haroon Textile Mills PLD 1977 Kar. 681. The learned counsel for the plaintiff relying on the aforestated authorities contended that the suit is maintainable. The main argument of the defendant is that question relating to the title or interest of a claimant or objector in the attached property can be decided only by the Court and that suit in that regard is clearly barred. The Civil Procedure Code provides exhaustive provision for execution of decree. Order XXI is one of the most exhaustive) provisions in this regard where care has been taken of all possible minute details and situations which may arise during the execution proceedings. The mode of execution and attachment has been provided in respect of the movable properties, immovable properties, sale of s agricultural proceed, negotiable instrument and shares in Corporation. The provisions regarding execution of decree and attachment and sale of movable and immovable properties have separately been given. Unlike immovable property, the method of attachment of movable properties as provided by Order XXI rule 43 is that "the attachment shall be made by actual seizure and the Attaching Officer shall keep the property in his own custody or in the custody of one of his sub ordinanates and shall be responsible for the custody thereof". The method for attachment of agricultural produce is provided by Order XXI rule 44. The attachment of immovable property can be made in the manner provided in Order XXI rule 54. The method of attaching immovable property is completely different from the mode of attaching the movable, property. Under Order XXI rule 54 an immovable property can be attached by an order prohibiting the judgment debtor from transferring or charging the property in any way which shall be proclaimed by beat of drum on or adjacent to such property and a copy shall be affixed on conspicuous part of the property and on conspicuous part of the Court houge, and also in the District Court. The judgment of the Supreme Court and the Lahore High Court quoted by the plaintiffs relate to possession of immovable property. In all those cases, the decree for possession was to be executed and the intervenors living in the house were to be ejected. In those cases, the attachment would have been complete without actual dispossession. There is inherent difference in mode of attachment of immovable and movable property. The movable property can be attached by actual seizure and taking custody of the goods by the Court Officer. On the other hand the immovable property is attached by passing a restraint order on the judgment debtor and by publicising such order and pasting it at the property and the Court notice board. These modes of attachment seem reasonable, because the judgment debtor cannot‑remove the immovable property, he can only sell or dispose it off. Therefore, the judgment‑debtor is restrained by the Court from exercising such right. In case of movable property there is every possibility that a dishonest judgment debtor may after the service of notice remove the same, and it may be difficult to find it out. Probably for this reason and with a view to afford protection to the decree holder the movable property is required to be actually seized and unless seizure is complete, the attachment remains ineffective. Thus basic difference between the mode of attachment in both types of the properties should be kept in mind while applying the principles laid down in those authorities. They basically deal with the procedure provided for attachment for immovable property, and therefore, the observation has to be read in this background. Therefore, in my view the aforestated authorities referred by the plaintiff are distinguishable as they relate to the immovable property. Under Order XXI, Rule 43 movable property‑ is legally attached if there is an order by the Court and is enforced by actual seizure of property. In Mohammad Ilyas v. Haroon Textile Mills PLD 1977 Kar. 681 Execution Application was filed for attachment and sale of the car of the judgment debtor and also household goods, air‑conditioner, television, radio, furniture, fixtures and carpets etc. The intervenor who was not a party to the decree filed an application under Order XXI Rules 26, 58, 60 and 62 praying that the properties are not liable to attachment in execution of the decree as the said properties have been gifted by the judgment debtor No.2 to the intervenor on 1‑12‑1973. A copy of the gift deed was also produced. It was observed that "objections to attachment of the property could be entertained only after the property is attached and not before". The application was therefore, dismissed. In the present case also similar was the situation and the plaintiffs objection was dismissed. If they were dissatisfied with the order dismissing th3ir objection to the attachment made by the Court B they should have filed appeal against such an order. In this regard reference can be made to Kulsoom Bai v. Nargis 1985 S C M R 1275.

In this case ejectment order was passed by the Controller. When the respondent filed execution proceedings, the petitioner intervened and filed objection under Order XXI rule 99 in which she claimed that she was the lawful tenant in occupation and that the said order of ejectment was obtained by fraud and mis‑representation. This application was dismissed on the preliminary legal point that similar objection was dismissed earlier. The petitioner then filed a suit for declaration and injunction before the same Court on the ground that order obtained by the respondent in the rent case was based on fraud and mis‑representation. The Court dismissed the suit as it was not maintainable under the provisions of Order XXI rule 103 and section 56 of the Specific Relief Act. The appeal and revision filed by the petitioner were also dismissed. She filed petition for leave to appeal against the judgment of the High Court which was dismissed. Referring to Order XXI rule 103 C.P.C., it was observed as follows:‑

"On a plain reading of the aforesaid provision the right claimed by the petitioner as a tenant in the execution proceedings was to be adjudicated upon and determined by the Court in such proceedings and no separate suit was competent on any such question. If therefore, the Code of Civil Procedure was applicable, manifestly the suit filed by the petitioner was barred under the aforesaid provision of law. The petitioner's remedy lay in filing an appeal from the order of the Civil Court dismissing her objection as such an order is now the effect of a decree by virtue of section 2(2) of the Code of Civil Procedure, therefore, an appeal would lie there from under section 96 of the Code of Civil Procedure. Admittedly no such appeal was filed by the petitioner."

Order XXI rule 62 is similar to Order 103 there fore, this observation will equally apply to the present case. The learned counsel for the plaintiff has contended that as the property belongs to the plaintiffs there was no legal attachment. The Court had on the application filed by the decree holder passed order of attachment. The remedy availabe to the plaintiffs is under Order XXI rule 62 which bars a suit filed for establishing right title or interest of the claimant in such property. Whether the attachment is proper or legal has to be decided by the executing Court. It is true that the plaintiff's objections were dismissed as premature and for want of prima facie evidence of the title to the goods but after the attachment is complete, the plaintiffs can repeat their objection before the Executing Court.

The application is allowed and the plaint is rejected.

A.A/H‑35/K ‑‑‑‑‑ Plaint rejected.

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