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Petitioner: M.C.B. BANK LTD.DecreeHolder VS Respondent: DUTY FREE SHOP LTD.
Court Name: Sindh High Court Judge(s): Munib Akhtar Title: M.C.B. BANK LTD.DecreeHolder vs DUTY FREE SHOP LTD. Case No.: Execution No,69 of 2008 and C.M.A. No,908 of 2010 Date of Judgment:2011-07-15 Reported As: 2011 CLD 1430 Result: Objection petition accepted
Judgment ORDER ' MUNIB AKHTAR, J.---The present Execution Application arises out of Suit No,B-29 of 2006, which was filed as a banking suit in this Court by MCB Bank Ltd. ("Decree Holder") against Duty Free Shops Ltd. ("Judgment Debtor"). The suit was decreed by way of a compromise application on 26-4-2007. Thereafter, the Execution Application was filed on 5-12-2008. Two properties were identified and subjected to execution proceedings by the Decree Holder. The present application, C.M.A. 908 of 2010 ("C.M.A. 908"), is concerned with only one of those properties being a plot of land bearing Nos.3, 4, 5 and 6, Sector 1-11/4, Islamabad with building and structure thereon (hereinafter referred to as the "warehouse"), and therefore all references herein are to this property. C.M.A. 908 was filed by the Pakistan International Airlines Corporation ("PIA") under Order XXI, C.P.C. As objector/intervener on or about 9-9-2010 on the ground that prior to the decree being executed, the warehouse had already been transferred from, and by, the Judgment Debtor to PIA. 2. When the Execution Application was filed, it was put up before the Court on the same day (i.e., 5- 12-2008) and certain ad interim orders were made by the Court. Subsequently, the Decree Holder filed an application, being C.M.A. 1069/2008, seeking attachment of the warehouse and an order of attachment was made by the Court on 23-2-2009. (The application was also in relation to the other property against which execution was sought, but since the property presently in issue is only the warehouse, no reference shall be made to that property.) It was directed that the writ of attachment be issued through the concerned District and Sessions Judge. On 5-5-2009 it was noted, on the basis of two bailiff reports, which I will consider subsequently, that the writ of attachment had been served. It appears, that on that date learned counsel appearing for the Judgment Debtor submitted before the Court that the warehouse had been transferred a long time
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ago and that therefore there was nothing against which execution proceedings could be continued. However, the Court noted that nothing had been placed on record in this regard. Certain documents were brought to the attention of the Court on 27-5-2009, but the Official Assignee was directed to proceed with the sale of the warehouse and it was noted that if any person had a claim in respect thereof, he could file objections before the Court. It appears that subsequently the property was put to auction twice, once in 2009 and the second time in 2010, for which purpose, according to the Decree Holder, advertisements were placed in the press and the matter was also advertised by cable television. It appears that ultimately the second attempt bore some fruit and on 16-6-2010 two bidders appeared before the Court who, according to the Official Assignee, had made bids in terms as stated in the order. It was ordered that a fresh round of bidding be held between the two bidders and certain directions were also made with regard to the bidding process. Ultimately, the Official Assignee reported that the directions of the Court had been complied with, and by order dated 6-7-2010 the sale was confirmed and the Official Assignee was directed to execute a sale deed and issue a sale certificate in favour of the successful bidder, Mr. Muhammad Saleem Bhatti ("the Auction Purchaser"). It was also directed that he be put in possession of the property, i.e. The warehouse. On 24-8-2010 the Official Assignee placed his Reference No, 5 of 2010 before the Court from which it emerged that PIA was in possession of the warehouse. It was ordered by the Court that a copy of the reference be sent to PIA with directions to the latter to submit its detailed comments by the next date, which was fixed as 7-9-2010. On that date no one put in appearance on behalf of PIA and the Court was pleased to order, as had earlier been requested by the Official Assignee in his aforesaid reference, that the assistance of the police could be obtained in order to ensure the handing over of the warehouse to the Auction Purchaser, and the matter was adjourned to 23-9-2010. On 9-9-2010, the application presently under consideration, i.e., C.M.A. 908, was filed and placed before the Court, and the order dated 7-9-2010 was suspended to the extent of the police assistance. Thereafter, the matter was adjourned from time to time, and finally C.M.A. 908 was heard on 3-5-2011, and orders reserved. 3. Learned counsel for PIA submitted firstly, that PIA only became aware of the execution proceedings and the order made therein directing that the possession of the warehouse be handed over to the Auction Purchaser on 27-7-2010 when a letter was received at the PIA office from the Official Assignee in this regard. Learned counsel submitted that internal inquiries were initiated at PIA and it emerged that as per its records, the warehouse belonged to PIA. While PIA was carrying out its internal exercise, it also became aware of the order dated 24-8-2010 whereby detailed comments had been sought from it on the Official Assignee's Reference No,5 of 2010. Learned counsel submitted that notices with regard to this order were issued to PIA only on 2-9- 2010 and were served on it at its Rawalpindi office (and not the Islamabad office) on 7-9-2010, the very day fixed for hearing by the Court, and it was therefore not possible for it to file comments as directed by the Court. Nonetheless, PIA thereafter immediately moved the application presently under consideration. 4. Learned counsel submitted that the warehouse had been transferred to PIA by the Judgment Debtor on account of a decision taken by the board of directors of the latter at a meeting of the Board held on 20-8-1999. As per the minutes of that meeting, which had been earlier placed on record by the Judgment Debtor, the warehouse was transferred to PIA as partial repayment of a loan given by PIA to the Judgment Debtor to enable the latter to undertake a voluntary "golden handshake scheme" to terminate the services of its employees. This was apparently part of an ongoing exercise of privatization of the Judgment Debtor, and it may be noted that PIA itself is or was one of the principal shareholders of the Judgment Debtor. Subsequent to the decision of the Board, and payment by PIA of the outstanding dues payable to the Capital Development Authority ("CDA") in respect of the warehouse, the property was transferred in the name of PIA by CDA and
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this position was confirmed by the latter by its letter dated 14-1-2005. Learned counsel submitted on the basis of the foregoing that PIA was thus the owner of the warehouse and had become the owner much before the decree which the Decree Holder was seeking to execute. Thus, according to him, there was nothing in respect of which an order of attachment could, or ought, to have been made nor was the warehouse the property of the Judgment Debtor, such that it could be sold in the execution proceedings. Learned counsel further submitted that, in fact, the Decree Holder was aware of all the relevant facts in this regard. He placed reliance on a letter dated 1-12-2008 which had been written by the Decree Holder to CDA seeking verification of the ownership of the warehouse. He submitted that (as noted above) the Execution Application was filed on 5-12-2008 and CDA, by means of its letter dated 18-12-2008, informed the Decree Holder that while the warehouse had originally been allotted to the Judgment Debtor, it had since been transferred to, and stood in the name of, PIA. This fact was never brought to the attention of the Court by the Decree Holder, and learned counsel submitted that there had been a deliberate suppression of material facts by the latter. He prayed that C.M.A. 908 be allowed and the sale and attachment of the warehouse be set aside. 5. Learned counsel for the Decree Holder strongly opposed the application under consideration. He submitted that the application was misconceived and not maintainable and was also hit by the proviso to sub-rule (1) of Rule 58 of Order XXI, C.P.C., in terms of which it was both delayed and in any case was liable to be dismissed on the ground that it had been filed more than one year after the period stipulated in the proviso. Learned counsel submitted that it was an admitted position that the original allotment of the warehouse by CDA to the Judgment Debtor was by means of a registered lease deed dated 22-7-1998. He submitted that if at all the property could be transferred to PIA, such transfer could only come about by means of a registered instrument. No such instrument had been placed on record for the simple reason (as candidly and properly conceded by learned counsel for PIA) that such a document did not exist. Learned counsel submitted that therefore, there had been no valid transfer of the warehouse to PIA which, in law, was still the property of the Judgment Debtor and which could therefore be attached and sold in execution proceedings against the latter. In this regard, learned counsel placed reliance on the relevant provisions of both the Transfer of Property Act, 1882 and section 17 read with section 49 of the Registration Act, 1908. Learned counsel also submitted that any purported transfer of the warehouse by the Judgment Debtor to PIA was also invalid on account of being contrary to section 196 of the Companies Ordinance, 1984. He therefore prayed that the application be dismissed. 6. Learned counsel for the Auction Purchaser adopted the submissions made by learned counsel for the Decree Holder and further placed reliance on the relevant rules and regulations applicable to the transfer of properties within the jurisdiction of CDA. In this regard he referred to the relevant provisions of the CDA Property Manual, a guidebook issued by CDA itself to submit that the warehouse, having been allotted by means of a registered lease deed, could only be transferred further by means of a registered instrument. He also, therefore, contended that PIA had no title to the warehouse or that in any case its title was fatedly flawed. 7. Learned counsel for PIA, exercising his right of reply, submitted that the Transfer of Property Act did not apply to the Islamabad Capital Territory and that the transfer made in favour of PIA by the Judgment-Debtor was perfectly valid and proper and no objection could be taken to the same. 8. I have heard learned counsel for the parties and examined the record of the case with their assistance, and considered the case-law and statutory provisions relied upon. As noted above, the present objections have been taken and raised by PIA under Order XXI, and it is Rule 58 thereof that is applicable. Of this rule, it is only sub-rule (1) that is relevant for present purposes. This sub-rule was substantially amended by the Law Reforms Ordinance, 1972 ("1972 Ordinance") and in
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particular, the proviso that had earlier existed was substituted in its entirety. Sub-rule (1) as it stands at present is as follows:-- "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit: ' Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector-- (a) proves title acquired in good faith and for consideration subsequent to the date of the first attachment; (b) proves that his predecessors-in-interest, whether their interest existed at the time of such attachment or was acquired thereafter, fraudulently omitted to make a claim or objection; and 9. Rule 58 is part of a set of Rules in Order XXI that are grouped together and appear under the sub-heading "Investigation of Claims and Objections". Originally, there were six Rules under this heading, running from Rule 58 to Rule 63. As already noted, Rule 58 was amended by the 1972 Ordinance, and this statute also made substantial changes to the other Rules appearing under the aforesaid sub-heading, to the extent that Rule 63 was omitted altogether. In order, therefore, to properly understand Rule 58(1) and in particular its proviso, it will be necessary to understand how the foregoing Rules stood prior to the 1972 amendments, and how those Rules apply today. The position as it stood prior to the 1972 Ordinance has been stated succinctly in one of the leading treatises on the C.P.C., Mulla on the Code of Civil Procedure (13th Edition, 1967, Volume II) as follows (internal citations omitted): "Where an objection to attachment is made by a party to the suit or his representative, the objector should proceed by an application under section 47; a separate suit for the purpose is barred. But where an objection to attachment is made by a third party, the objector may either proceed by an application under this Rule or he may bring a regular suit to establish his objection; failure to proceed by an application under this Rule is no bar to a separate suit. The object of this Rule is to give a claimant a speedy and summary remedy, but the Rule does not deprive him of his remedy by suit. The summary remedy given by this Rule is alternative to the remedy by way of suit. ' The following illustration shows the operation of Rr.58, 62. In execution of a decree obtained by A against B certain property alleged to belong to B is attached. If the property attached is claimed by C, C may bring a regular suit for a declaration that the property attached belongs to him and for removal of the attachment. Or, if he desires to avail himself of the speedy remedy provided by this Rule, he may present an application to the Court executing the decree claiming that the property belongs to him and praying for the removal of the attachment. If C's claim is allowed (R.60), A may bring a suit under R.63 for a declaration that the property belongs to B and is therefore liable to attachment. And if C's claim is disallowed (R.61), he may bring a suit for a declaration that the property attached belongs to him, and is therefore not liable to attachment. If no such suit is brought within one year from the date of the order under R.60 or 61, the order will be conclusive." (pp. 1101-02; emphasis in original) ' It will be noted from the foregoing extract that, as originally envisaged, Rules 58 to 63 provided for a summary remedy to a third party aggrieved by an order of attachment. Although it has been observed by the Privy Council in Sardhari Lal v. Ambika Prasad (1888) 15 Indian Appeals 123 that the investigation could be as detailed or as summary as the circumstances of the particular case
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warranted, it was well settled that ultimately it was open to an aggrieved third party to bring a suit for the legal vindication of his claim. If he did choose the summary route provided by Rule 58, and his claim was disallowed, thus entitling him to bring a suit under Rule 63, that suit had to be filed within one year of the order disallowing his claim. This period of limitation was specifically so provided in Article 11 of the First Schedule to the Limitation Act, 1908 (a provision that, interestingly, is still on the statute book). 10. The amendments brought about by the 1972 Ordinance completely upended the situation that had applied previously. As noted, Rule 63 was omitted altogether. Rule 62 was also substituted, and now provides as follows:-- "All questions relating to the right title or interest of the 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." ' In like manner, Rule 59, which had earlier required the objector to produce evidence showing that on the date of the attachment "he had some interest in, or was possessed of, the property attached" was now substituted to read as follows:-- "The claimant or objector must adduce evidence to show that at the date of the attachment he had a title to, or right or interest in, the property attached." ' The combined effect of the changes brought about by the 1972 Ordinance has been stated as follows in a standard Pakistani treatise on the C.P.C., The Code of Civil Procedure by Aamer Raza A. Khan (10th Edition, 2010) as follows (internal citations omitted):-- "By Ordinance XII of 1972 the proviso to sub-Rule (1) stands substituted. Rules 59 to 62 have been substituted by new rules and Rule 63 omitted. Where objection to attachment is raised by a party to the suit, it was, and still remains determinable in proceedings under section 47. Where the objection is raised by an outsider, such person could either file a suit or resort to the summary procedure provided by Rules 58 to 62 of Order XXI as originally framed. The field of investigation was circumscribed by the provisions of the then Rules 59 to 61. Such inquiry was essentially one respecting possession but during the course of investigation, the question of title could also become relevant. Complicated questions of title were not to be determined in such inquiry. Rules 59 to 62 provided for a summary investigation into the matter of possession and the result of the findings was conclusive, subject to the result of suit under Rule 63. ' Prior to the amendment of 1972 where such claim or objection was raised by a third party, he could either file a suit for the assertion of such rights or apply under Rule 58, or resort to the other remedies provided by Order XXI as for instance, an application under Rule 89 to Rule 100... Now by virtue of the new rules 62 and 103 all such questions are to be determined by the executing Court and a separate suit will not lie. In other words whether the objections are raised by a party to the suit or an outsider, it is to be determined by the executing Court and not by separate suit." (pp. 798-99) 11. In order to properly appreciate the amended sub-rule (1) of Rule 58, it will also be appropriate to refer to this sub-rule as it stood prior to the 1972 amendments. It is to be noted that in the exercise of powers conferred by the C.P.C., the various High Courts had, from time to time, made certain amendments to Rule 58 and (for reasons that will become apparent) reference must be made to an amendment made thereto by the Lahore High Court in 1932. As so amended, Rule 58(1), as it stood prior to 1972 amendments, was as follows (the amendment of the Lahore High Court is underlined):-- "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as
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regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit: ' Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed and that if an objection is not made within a reasonable time of the first attachment the objector shall have no further right to object to the attachment and sale of the same property in execution of the same decree, unless he can prove a title acquired subsequent to the date of the first attachment." ' It will be seen from the foregoing that originally the proviso only envisaged that if the claims or objections put forward by the third party were designedly or unnecessarily delayed, then the Court could refuse to carry out an investigation and, as provided by the Lahore High Court, it was further provided that if a claim or objection was not taken within a reasonable time of the "first attachment", the objector would not have any "further" right to object to the attachment and sale of the same property in execution of the same decree, unless he could prove that he took the objection on the basis of a title acquired subsequent to the date of the first attachment. Thus, what the Lahore High Court amendment provided was that even if the claim or objection had not been designedly or unnecessarily delayed, but had not been taken within a reasonable time of the first attachment, a further right of the objector was barred in terms as stated in its amendment. Two points are of importance. Firstly, the one must consider the term "first attachment", which does not appear to have been used elsewhere in the Code and even in Rule 58(1) appeared for the first time only by means of the Lahore High Court amendment. In my view, as used therein, the phrase applied in the context of their being more than one or successive attachments of the same property, and the phrase merely referred to the first of such attachments. What the Lahore High Court amendment did was to provide that if the objection was not taken by the objector within a reasonable time of this (i.e. The first) attachment, then he was barred from taking any further objections with respect to other or successive attachments of the same property in execution of the same decree unless he claimed under a title acquired subsequently. In other words, the term "first attachment" had a rather limited use and purpose as envisaged by the Lahore High Court. Secondly, and this is of crucial importance, in any case the right of an objector to establish and vindicate his legal right, title or claim to the property was not at all affected even if the proviso (whether as originally enacted or A as amended by the Lahore High Court) applied to him. This was so since, as noted above, he could in any case file a suit within a period of one year from the date of the order disallowing his claim or objection under Rule 58. Thus, e.g., even if an order was made against the objector by application of the Lahore High Court amendment, his position was not materially affected thereby. The only result was that the speedy or summary procedure provided for in Rule 58 was not available to him. He would have to take recourse to ordinary litigation by way of a suit, as expressly recognized by the original Rule 63. 12. The proviso, as substituted by the 1972 Ordinance, on the other hand, while using many of the same words and terms as before, has nonetheless created a rather curious hotchpotch, which could, on at least one possible interpretation, result in grave injustice being done to an objector and in a serious miscarriage of justice. The reason for this, and this in my view is fundamental to a proper appreciation of Rules 58 to 62 as they stand at present, is that a separate suit by the objector to establish his claim, right or title is now entirely barred and his only remedy is by way of an objection under Rule 58 (read with other Rules). Thus, on one possible reading, the proviso prohibits an investigation on the earliest occurrence of any one of the following three possibilities: (a) the claim or objection has been designedly or unnecessarily delayed; (b) the claim or objection was not made within a reasonable time; or (c) the claim or objection was not made within one year from the date of the "first attachment". It will be seen that on this reading, which was the interpretation, in effect, urged by learned counsel appearing for the Decree Holder and the Auction
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Purchaser, the period of one year from the date of first attachment serves as the outside limit beyond which no objection or claim can be investigated by the court. Put differently, on this reading, the proviso has placed a period of limitation of one year from the date of the first attachment within which an objection or claim must be brought. The objector may have a perfectly valid, indeed indefeasible, title to the property under attachment, but if his application were made more than one year after the date of first attachment, it would be of no avail. His application would have to be dismissed and he would have no other remedy for the enforcement or vindication of his legal rights. Such an interpretation cannot surely be correct. The intent behind the 1972 amendments was to prevent frivolous, fictitious or…
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