2016 S C M R 2150
2016 S C M R 2150
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ
EJAZ AHMED---Appellant
Versus
Rai MUHAMMAD RIAZ through L.Rs and others---Respondents
Civil Appeal No. 364-L of 2014, decided on 10th March, 2016.
(On appeal against the judgment dated 14-3-2013 passed by the Lahore High Court, Lahore, in F.A.O. No. 367 of 2011)
Civil Procedure Code (V of 1908)---
----S. 12(2) & O. XXI, R. 95---Sale of immoveable property in execution of a decree---Application under S. 12(2), C.P.C. challenging the decree---Objection petition against such sale pending application under S. 12(2), C.P.C.---Maintainability---Plaintiff-purchaser filed a suit for specific performance against respondents-sellers seeking enforcement of his alleged agreement to sell in respect of suit property---Suit was decreed in favour of the plaintiff and in execution process the sale deed in favour of plaintiff was executed and possession was also delivered to him---Objector filed an objection petition contending that sellers had already executed an agreement to sell in his favour and pursuant to the said agreement he was also put in possession of the suit property and had been fraudulently dispossessed from the property in question without being made a party in the suit filed by the plaintiff---Validity---Remedy of O. XXI, R. 95, C.P.C. was not available to objector in the facts and circumstances of the case, and as such his objection petition was not maintainable---Objector had also filed an application under S. 12(2), C.P.C. challenging the decree in favour of the plaintiff, therefore, when such application was already pending, the objection petition in any case was not maintainable---Appeal was allowed accordingly with the direction that the application under S.12(2), C.P.C. filed by objector challenging the decree in favour of the plaintiff shall be decided independently on its own merits.
Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Appellant.
Ex parte for Respondents.
Date of hearing: 10th March, 2016.
ORDER
MIAN SAQIB NISAR, J.---Respondents have not put in appearance, therefore, proceeded ex parte. This appeal with the leave of the Court entails brief facts, in that, that the appellant filed a suit for specific performance against respondents Nos. 2 and 3 seeking enforcement of his alleged agreement to sell dated 06.04.2004 in respect of suit property (described in the plaint/which is a petrol pump). The suit was decreed in favour of the appellant on 03.06.2010 and in execution process the sale deed in favour of appellant has been executed on 11.11.2010 and according to the learned counsel for the appellant the possession was also delivered to his client on 07.02.2011. On 09.02.2011, respondent No. 1 filed an objection petition claiming that respondents Nos. 2 and 3 had already executed an agreement to sell in his favour on 23.09.2004 and pursuant to the said agreement he was also put in possession of the property and has been fraudulently dispossessed from the property in question without being made a party in the suit filed by the appellant. This objection petition has been dismissed by the learned Executing Court vide order dated 29.06.2011. However, in appeal (F.A.O.) the learned High Court has set aside the said order and has remanded the matter to the Executing Court to frame issues and also to decide the objection petition on the basis of evidence. In this regard quite an emphasis has been made upon Article 10A of the Constitution and also the provisions of Order XXI, Rule 95, C.P.C.
2. Having considered the arguments of the learned counsel for the appellant, we find that the remedy of Order XXI, Rule 95, C.P.C., in the facts and circumstances of the case, was not available to respondent No. 1 and such application was not maintainable, whereas Article 10A of the Constitution has no relevance to the question as to how the objection was to be determined which is to be regulated on the basis of Order XXI, Rules 95 to 103, C.P.C. We have also been apprised in this case that respondent No. 1 has filed an application under section 12(2), C.P.C. challenging the decree dated 03.06.2010 in favour of the appellant. Obviously, when such application is already pending, the objection petition in any case was not maintainable, therefore, we allow this appeal and set aside the impugned judgment with a clear observation that the application under section 12(2), C.P.C. filed by respondent No. 1 challenging the decree dated 03.06.2010 in favour of the appellant shall be decided independently on its own merits.
MWA/E-4/SC Appeal allowed.
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ
EJAZ AHMED---Appellant
Versus
Rai MUHAMMAD RIAZ through L.Rs and others---Respondents
Civil Appeal No. 364-L of 2014, decided on 10th March, 2016.
(On appeal against the judgment dated 14-3-2013 passed by the Lahore High Court, Lahore, in F.A.O. No. 367 of 2011)
Civil Procedure Code (V of 1908)---
----S. 12(2) & O. XXI, R. 95---Sale of immoveable property in execution of a decree---Application under S. 12(2), C.P.C. challenging the decree---Objection petition against such sale pending application under S. 12(2), C.P.C.---Maintainability---Plaintiff-purchaser filed a suit for specific performance against respondents-sellers seeking enforcement of his alleged agreement to sell in respect of suit property---Suit was decreed in favour of the plaintiff and in execution process the sale deed in favour of plaintiff was executed and possession was also delivered to him---Objector filed an objection petition contending that sellers had already executed an agreement to sell in his favour and pursuant to the said agreement he was also put in possession of the suit property and had been fraudulently dispossessed from the property in question without being made a party in the suit filed by the plaintiff---Validity---Remedy of O. XXI, R. 95, C.P.C. was not available to objector in the facts and circumstances of the case, and as such his objection petition was not maintainable---Objector had also filed an application under S. 12(2), C.P.C. challenging the decree in favour of the plaintiff, therefore, when such application was already pending, the objection petition in any case was not maintainable---Appeal was allowed accordingly with the direction that the application under S.12(2), C.P.C. filed by objector challenging the decree in favour of the plaintiff shall be decided independently on its own merits.
Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Appellant.
Ex parte for Respondents.
Date of hearing: 10th March, 2016.
ORDER
MIAN SAQIB NISAR, J.---Respondents have not put in appearance, therefore, proceeded ex parte. This appeal with the leave of the Court entails brief facts, in that, that the appellant filed a suit for specific performance against respondents Nos. 2 and 3 seeking enforcement of his alleged agreement to sell dated 06.04.2004 in respect of suit property (described in the plaint/which is a petrol pump). The suit was decreed in favour of the appellant on 03.06.2010 and in execution process the sale deed in favour of appellant has been executed on 11.11.2010 and according to the learned counsel for the appellant the possession was also delivered to his client on 07.02.2011. On 09.02.2011, respondent No. 1 filed an objection petition claiming that respondents Nos. 2 and 3 had already executed an agreement to sell in his favour on 23.09.2004 and pursuant to the said agreement he was also put in possession of the property and has been fraudulently dispossessed from the property in question without being made a party in the suit filed by the appellant. This objection petition has been dismissed by the learned Executing Court vide order dated 29.06.2011. However, in appeal (F.A.O.) the learned High Court has set aside the said order and has remanded the matter to the Executing Court to frame issues and also to decide the objection petition on the basis of evidence. In this regard quite an emphasis has been made upon Article 10A of the Constitution and also the provisions of Order XXI, Rule 95, C.P.C.
2. Having considered the arguments of the learned counsel for the appellant, we find that the remedy of Order XXI, Rule 95, C.P.C., in the facts and circumstances of the case, was not available to respondent No. 1 and such application was not maintainable, whereas Article 10A of the Constitution has no relevance to the question as to how the objection was to be determined which is to be regulated on the basis of Order XXI, Rules 95 to 103, C.P.C. We have also been apprised in this case that respondent No. 1 has filed an application under section 12(2), C.P.C. challenging the decree dated 03.06.2010 in favour of the appellant. Obviously, when such application is already pending, the objection petition in any case was not maintainable, therefore, we allow this appeal and set aside the impugned judgment with a clear observation that the application under section 12(2), C.P.C. filed by respondent No. 1 challenging the decree dated 03.06.2010 in favour of the appellant shall be decided independently on its own merits.
MWA/E-4/SC Appeal allowed.
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