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Petitioner: NAN FUNGDecreeHolder VS Respondent: H. PIR MUHAMMAD SHAMSDIN
Court Name: Sindh High Court Judge(s): G. H. Malik Title: NAN FUNGDecreeHolder vs H. PIR MUHAMMAD SHAMSDIN Case No.:Civil Miscellaneous Applications Nos.232 and 240 of 1984 in Ex. No, 132 of
1980, Date of Judgment:1995-04-26 Reported As: PLD 1995 Karachi 421 Result: Order accordingly Judgment ORDER ' The following are the reasons for the order dated the 8th March, 1995, whereby I had dismissed the Objectors' Applications (C.M.As. 232/84 and 240/84) under Order 21, Rule 58, C.P.C. ' Before considering the evidence of the objectors and arguments advanced by the learned counsel, it would be useful to set out briefly the events leading to the present proceedings. ' The decree-holder filed in July, 1975, J.M. No, 82 of 1976 to make the award made in their favour by Liverpool Cotton Association, Ltd. a rule of this Court; and on the 27th May, 1979, a decree in terms of the award was passed against the judgment-debtor, namely, the Firm of H. Pir Muhammad Shamsuddin for U.S. $.274,584 with interest thereon at 10% per annum and costs. Mian Muhammad Bashir is a partner of that firm. ' On the 26th February, 1980, the Decree Holder filed the present Execution Application for recovery of the decretal amount by attachment and sale of the movable property of the firm and of immovable property viz. House No, 229, E.I. Lines, Karachi, belonging to the aforesaid Mian Muhammad Bashir. ' Meanwhile, the judgment debtor challenged the decree in High Court Appeal No, 60 of 1979 and, as appears from the order, dated the 7th December, 1980, the Appellate Bench stayed the execution of the decree subject to the judgment-debtor furnishing security for the decretal amount within one month. No such security having been furnished, the execution Application was granted as prayed on the 7th December, 1980. ' The decree-holder filed an application (C.MA. 420/81) under Order 21, Rule 50, C.P.C. And another application (C.MA. 421/81) under Order 21, Rule 64, C.P.C. While the judgment-debtor Mian
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Muhammad Bashir filed on 30th April, 1981, through Mr. A. Rauf, an application (C.MA. 422/81) under Order 21, Rule 58, C.P.C., alleging that "Mian Muhammad Bashir is not the owner of the Property No,229-E.I, Lines, Karachi", and praying that the attachment be raised. ' On the 17th May, 1981, CMA 422 of 1981 was, in view of the allegation noted above, dismissed; and in regard to C.MA. 421 of 1981 under Order 21, Rule 64, C.P.C. Filed by the decree holder, it was observed that there was "nothing on the file to indicate on what date the property was actually attached by the Court"; and the office was directed to report as to the date of actual attachment. ' The office, consequently, put up a note, dated the 31st May, 1981, stating, in relevant parts-- "As regards immovable property belonging to Mian Muhammad Bashir partner of the J.D. The attachment order under Order 21, rule 54, C.P.C. Has been served on Mian Muhammad Bashir. The attachment order under Order 21, Rule 54, C.P.C. Of 'the immovable property has also to be affixed on the immovable property, Court Notice Board and office of the Deputy Commissioner, Karachi. ' The Office by mistake not issued the copy of the attachment order for affixations." ' The note was considered on the 18th October, 1981, when the office was directed to "complete the formalities (of attachment) as required by the law". On the same date notice of C.MAs. 420/81 under Order 21, Rule 50 and 421/81 under Order 21, Rule 64, filed by decree-holder, was ordered to be issued. On the 28th March, 1982, both the above applications came up for hearing in the presence of the Advocate for the decree-holder and Mr. A. Rauf for the judgment-debtor when C.MA. 420/81 was allowed and as to C.MA. 421/81, the judgment-Debtor's counsel stated that "the property belongs to some third person" and the decree-holder was "directed to produce certified copies from the property register to show that the property belongs to the judgment-debtor or any of its partners before further orders are passed. ' Subsequently, the hearing of C.MA. 421/81 was, by consent, adjourned; and that application was eventually granted on the 14th April, 1982. ' On the 13th January, 1983, the present applicant Mian Zahid Bashir, filed the instant application (C.MA. 232/84) under Order 21, Rule 58, C.P.C. Claiming that the Property, namely, No,229, E.J Lines, Karachi, which had been attached at the instance of the decree-holder bad been gifted by Mian Muhammad Bashir to Mian Khalid Bashir and the applicant. He, however, did not pursue the application till the 27th February, 1984, when the objection raised by the office was complied with. On the 29th February, 1984, the applicant filed C.MA. 240/84 praying that the sale of the property be postponed pending investigation into his claim. ' Meanwhile, on the 29th January, 1984, proclamation of sale was ordered to be issued for sale of the aforesaid immovable property. ' On the 26th August, 1984 when C.M.As. 232/84 and 240/84 came up for hearing, the following issues were framed:-- "(1) Whether the objections are barred by time? (2) Whether there was any valid transfer of the property by way of oral gift from Mian Muhammad Bashir to his two sons/objectors, if so whether the objectors have acquired any valid title? (3) Whether the objections are mala fide and with intention to cause delay in the proceedings?" and the hearing was adjourned for recording the evidence of the parties. ' The objectors have examined Muhammad Arshad, Ziaul Hasan, A. Ghaffar, Mian Zahid Bashir and Mian Muhammad Bashir. The last named was examined on commission. The decree-holder has not lead any evidence and its counsel stated on 18th March, 1985, that he would refer to the file of JM 82 of 1976 and would not lead any other evidence. ' Thereafter, the case came up for hearing of arguments on numerous occasions but at the request of one or the other of the parties the hearing was adjourned. The arguments were then heard on the 11th February, 1987, when orders were reserved. Before, however, the orders could be passed the objectors filed another application (C.M.A. 218/87) for permission to file additional documents. That
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application was granted on the 14th April, 1987, and on the 12th October, 1987, it was ordered that the arguments would be reheard on the basis of additional documents produced by the objectors. ' After several further adjournments, the arguments were reheard, after almost five years, on the 18th May, 1992, and orders were reserved by another learned Judge. However, on the 28th June, 1992, it was ordered that "The matter may be fixed in Court for further hearing for clarification of certain points on 1-7-1992". ' On the 1st July, 1992, the hearing was adjourned because Mr. A. Rauf was "out of station", to a date in office; and on the 31st August, 1992, the hearing was again adjourned to 7th September, 1992, as Mr. A. Rauf was not well and required time to prepare the case. On 7th September, 1992, adjournment was sought on behalf of Mr. Shamsul Arfin because he was not well. The hearing was, therefore, adjourned and it was ordered as follows:-- "The case was fixed for further hearing for clarification of certain points but now it is a long time when the hearing had taken place and it will be in the fitness of thing if the matter is argued afresh in toto. By consent, the hearing is adjourned to 15-9-1992." ' The arguments were then partly heard on the 23rd August, 1993, but before they could be concluded the learned Judge who had heard them was appointed Federal Law Secretary. ' The case then came up before me on 14th December, 1993, when it was contended by Mr. A. Rauf, inter alia, that the property in question had not been validly attached. I, therefore, directed the office to submit a report showing when in what manner and how the property had been attached. It may here be observed that at that time the previous orders referred to above were not brought to my attention. ' In pursuance of the above order, the office submitted the following report:-- "The Honourable Court vide its order dated 14-12-1993 directed the office to put up a note showing when in what manner and how the property in question was attached. Office beg to say the pro- order under Order 21, Rule 54, C.P.C. Was issued against Muhammad Bashir the partner No,1 of judgment debtor on 15-2-1981, through bailiff which was served on him on 1-3-1981 as per report of bailiff dated 25-3-1981 (flag A). But since property was not attached due to mistake of office, office placed a reference dated 31-5-1981 in the Court for necessary order (flagged B). The Hon'ble Court vide its order dated 18-10-1981 directed the office to complete the formalities as required by the law. A note on the order sheet 18-10-1981 shows that the superintendent of that time has given direction to the concerned to issue Pro-order for affixation and complete the attachment. ' Office has gone through the file and found that office copy of attachment order for affixation is not available on the file. Office has also tried his best to trace out the delivery book of that time from Record Branch under which the attachment order of affixation was sent to the bailiff. The same could not be traced-out. ' Office humbly beg to say that the formalities have been performed as required by law otherwise the Advocate for the Defendant/judgment debtor would not have been admitted the same in his objection dated 11-3-1982 (flagged C) and C.MA. No,232 of 1984 application under Order 21, Rule 58 read with section 151, C.P.C. Last para. (Flagged D). Affidavit dated 11-1-1983 (flag-E)." ' Arguments were then partly heard on the 7th March, 1994, and the hearing was adjourned to the 17th March, 1994, when it was again, for want of time, adjourned. For various reasons the case could not be heard until the 30th January, 1995, when in view of the length of time that had elapsed since the last hearing the case was not treated as part heard. ' Finally, the arguments were heard on the 22nd February, 1995, Ist March and the 8th March, 1995, when the applications were, by a short order, dismissed. My findings on the issues and the reasons, therefore, are as follows:-- ' Issues No,1.--The objections vide C.MA. 232/84 were admittedly filed on the 13th January, 1983, under Order 21, rule 58(1), C.P.C., which, in relevant part provides-
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"Where any claim is preferred to, or any objection is made to 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." ' Mr. Shamsul Arfin pointed out that the execution application for attachment and sale of the property was granted on the 7th December, 1980, and, in pursuance of that order, pro-order was served on the judgment-debtor, Mian Muhammad Bashir, on the 1st March, 1981; that on the 18th October, 1981, the office was directed to complete the remaining formalities to effect attachment and that, on the 19th October, 1981, the Superintendent of the branch issued instructions (which appear on the order sheet alongside the order, dated the 18th October, 1981) to "Issue pro-order for affixation and complete the attachment." These facts are not in dispute; and Mr. Shamsul Arfm submitted that it must be assumed that the requisite formalities were duly completed and the property was attached on the 19th October, 1981. He submitted further that the objections having been filed more than one year after the property was first attached, no investigation into the claim or objections can be made in view of the Proviso to Order 21, Rule 58(1) C.P.C. He relied upon the case of the That Engineering Industries, Ltd. v. The Bank of Bahawalpur Ltd. And another (1979 SCM R 32). ' Mr. A. Rauf, on the other hand submitted that the property has not been attached in fact, that a mere order of attachment is not enough, and that, therefore, the question of any delay in filing objections does not arise. He submitted further that investigation having already been undertaken in this case, the Proviso to Order 21, Rule 58(1) has become irrelevant and sought to support the submission with the cases of Nga San Balu v. Mi Thaik and another (AIR 1918 Upper Burma 32(1) and Surendra Nath Goswa my and others v. Rajani Kanta Das (AIR 1917 Calcutta 9(2). ' The questions for decision, therefore, are whether and, if so, when, the property was attached and whether the objections fall within the ambit of the proviso noted above. ' It appears from the record, summarised above, that the property was ordered to be attached on the 7th December, 1980, and subsequently, on the 17th May, 1981. It was observed, at the hearing of the decree holder's application under Order 21, rule 64, C.P.C., that there was nothing on the record to indicate the date on which the property was attached. The office was directed to submit a report as to the actual date of attachment. It transpired from the office note, dated 31st May, 1981, that while the Prohibition order had been duly served on Mian Muhammad Bashir, the office had not issued copies of the order for affixation as prescribed by rule 54 of Order 21, C.P.C. Consequently, the office was directed on the 18th October, 1981, to complete the formalities of attachment; and the Superintendent of the branch, in compliance with the above order, issued instructions to issue Prohibition order for affixation to complete the attachment. ' On the 28th March, 1982, C.M.A. 421/81, under Order, 21, Rule 64, C.P.C. Again came up for hearing in the presence of Mr. A. Rauf for the judgment-debtor when, in view of statement by him that the property belongs to "some third party" the decree-holder was directed to produce certified copies of extract from the Property Register to show that the property belongs to the judgment-debtor. C.MA. 421/81 was eventually granted on the 14th April, 1982; and on the 29th January, 1984, proclamation of sale was ordered to be issued. It appears to me to be quite clear that the Court, having at first refused to grant the application under Order 21, Rule 64, C.P.C., because the record did not indicate the date on which the property had been attached, would not have granted that application subsequently unless the property had been in fact attached. Besides, the presumption
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of regularity attaches to the act of the Court in ordering sale of the property, which could only have been done after the property had in fact been attached. ' Further, it may be noted that Mr. A. Rauf, the learned counsel for the objector, who appeared on 28th March, 1982, for the judgment-debtor when the application under Order 21, Rule 64, C.P.C. Came up for hearing, did not raise any objection as to the actual attachment of the property; and the objector himself has admitted in the present applications that the property had been attached. As to that Mr. A. Rauf stated during the arguments that the objector was not aware, at the time of filing the objections, that the property had not been attached but discovered that fact only later on. No credence can be accorded to that statement, firstly, because the objector has made no attempt to file additional affidavit or to adduce any evidence to substantiate the argument now advanced by his counsel; and, secondly, because, it is inconceivable that Mr. A. Rauf had, when he appeared for the judgment-debtor, any doubt, about the fact of attachment for, if he had any such doubt .He would most certainly not have failed to take advantage of such a situation and to advise his present client, the objector, accordingly. As it happens, the objector; on the advise of Mr. A. Rauf, filed the present application on the basis that the property had been attached. ' In the circumstances, the plea that the property has not been attached appears to be merely an attempt to take advantage of the situation where the relevant record relating to attachment is not available; and, in any case, the objector is not, in the absence of any allegation in his application regarding the attachment of the property, entitled to urge such a ground during arguments. ' I would, therefore, hold that the property in question was duly attached before the present applications were filed by the Objector. It, however, remains to be seen whether the attachment took place more than a year before the 13th January, 1983, when C.MA. 232/84 was filed. Mr. Shamsul Arfin has submitted, as noted above, that the formalities of attachment were completed on the 19th October, 1981, when the Superintendent of the concerned branch issued instructions to complete the formalities of attachment. The contention of Mr. A. Rauf, on the other hand, was that mere issuance of instructions is not enough. I think that the truth must lie between the two positions respectively adopted by the learned counsel; and while it may be too optimistic to assume that the instructions of the Superintendent were carried out on the same day, it is not unreasonable to assume that they were complied with within reasonable time. Such reasonable time would be no more than 15 days, at the most, from the date of the instructions, so that it may reasonably be assumed that the instructions were complied with and the attachment was completed by, say, the 3rd November, 1981. That being so, the objections were filed more than one year after the attachment of the property; and, therefore, fall within the mischief of the proviso. ' That, however, is not all, for, the proviso applies also where the claim or the objection has been designedly or unnecessarily delayed or has not been filed within reasonable time. As has been noted above, Mian Muhammad Bashir, the father of the objector, had filed C.M.A. 422 of 1981, under Order 21, Rule 58, C.P.C., on the 30th April, 1981, and that application was dismissed on the 17th May, 1981, but the counsel, Mr. A. Rauf, continued to appear for the judgment debtor and was present on the 28th March, 1982, when the decree holder's application under Order 21, Rule 64, C.P.C., came up for hearing. It may, in the circumstances, be fairly assumed that the objector through his father, the judgment debtor, and their common counsel, Mr. A. Rauf, was aware on the 28th March, 1982, if not earlier, that the property had been attached. The objections ought, therefore, to have been filed almost immediately unless the objector was, for reasons beyond his control, prevented from doing so. In the event, they were not filed till the 13th January, 1983. It, therefore, appears that the objections were unreasonably and unnecessarily delayed. ' The next contention of Mr. A. Rauf, namely, that the investigation into the objection or claim of the objector having commenced, the Proviso to Order 21, Rule 58(1), C.P.C., has become irrelevant, may now be considered. The contention is not supported by the language of either Rule 1(1) of Order 58,
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C.P.C. Or the Proviso thereto. While the rule enjoins upon the Court to investigate the claim or objection, the Proviso just as emphatically prohibits the Court from investigating the claim or objection which has been designedly or unnecessarily delayed or which has not been made within reasonable time or within one year whichever is earlier. It cannot, therefore, reasonably be contended, in effect, that the provisions of the Proviso may be nullified merely be holding the investigation by ignoring, either advertently or inadvertently, the fact that the claim or the objection might fall within the mischief of the Proviso. I would venture to suggest that the proviso would apply even if initially it is not apparent that it would apply to the facts of a case but if such fact emerges at any time before the claim or objection is disposed of. ' In the case of Nga San Bartn v. ,Mi was Thaik, cited by Mr. A. Rauf, it w held that the Proviso did not apply because "investigation had already been made." With due respect to the learned Judge who made that observation, I am unable to agree with it for the reasons which have been given above. In any event, it was held in that case that in the circumstances of the case it could not be said that the application had been designedly or unnecessarily delayed. The observation was, therefore, obiter. The case of Surendra Nath Goswamy v. Rajani Kanta Das, also cited by Mr. A. Rauf, far from being of any assistance to him, in fact goes against him. There it was held by a Division Bench of Calcutta High Court that the Proviso prohibits the Court from inquiring into the claim or objection when it was designedly or unnecessarily delayed and that; "No decision can cut down the express and clear words used by the legislature that where the Court considers that the claim or objection was designedly or unnecessarily delayed no investigation shall be made." In the circumstances, the objections are liable to the dismissed on this ground alone, namely, that they fall within the mischief of the Proviso to Order 21, Rule 58(1), C.P.C. ' ISSUE No,2. ' In the application, the objector has set out the correspondence between the Military Estate Officer and the judgment-debtor in connection with the latter's intention to transfer the property by way of gift; and in the affidavit it is alleged "that this transfer had taken place by means of an oral gift deed which was latter on witnessed by a document". However, there is no mention in either the application or the affidavit of the particulars of the gift viz the date and the place thereof or the witness thereto or the circumstances in which it was made; nor was the memorandum of gift produced with either the application or the affidavit. ' The witnesses of the applicant have deposed, however, that the judgment-debtor orally gifted the property to the applicant and Khalid Bashir on the 15th May, 1979 and that the judgment-debtor subsequently executed a-memorandum of gift. The witnesses have produced the correspondence between the Military Estate Officer and the judgment-debtor, a photo stat copy of the alleged memorandum of gift, extract from Property Register and a paper purporting to contain a list of various gifts alleged to have been made by the judgment-debtor. One of those documents is a letter, dated the 5th June, 1979, from the judgment-debtor to Military Estate Officer (Ex. 12). It would be useful to reproduce that letter before considering the evidence of the witnesses. The letter reads-- "The Military Estate Officer, Karachi Circle, Karachi. ' Dear Sir, ' Re: PROPERTY NO. 229, E.I. Lines. ' Please refer to your letter No, K-7/229/28 dated 27-5-1979. ' The undersigned being lawful owner of the property at 229 E. I Lines, Karachi, intends to transfer the same to his legal heirs M/s. Khalid Bashir and Zahid Bashir (Sons) by way of Gift Declaration. ' Please take one month's notice from the date hereof that the undersigned shall execute the necessary transfer of the property in question to his legal heirs mentioned hereinabove after the
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expiry of 30 days notice from the date hereof. Thanking you. Your's faithfully (Sd) (MUHAMMAD BASHIR) ' The evidence of the witnesses on two points, namely, the making of the oral gift and the execution of the memorandum of gift may now be examined. ORAL GIFT ' Muhammad Arshad has stated,"... On 15-5-1979 after office hours I accompanied by Mr. Ziaul Hasan, a colleague of mine went to the bungalow, the property in dispute, where Khalid Bashir and Zahid Bashir were also present. In my presence and in the presence of Mr. Ziaul Hasan, Mian Muhammad Bashir said, "Today is the birthday of my son Zahid Bashir and I am gifting this property today to Zahid Bashir and Khalid Bashir. The said two boys formally took possession of the bungalow". ' In cross-examination, it was put to him that in view of the letter, dated the 5th June, 1979, (reproduced above), the story of oral gift was false, and his answer was, merely,- "The oral gift was made in May, 1979". ' The witness, admittedly, was an employee of the judgment-debtor, and, as indicated by his cross- examination he not only avoided answering the crucial question regarding the letter of 5th June, 1979, but appears to have been suffering from selective amnesia. He claimed to remember exactly when and in what words, the oral gift was made, when the decree was passed,…
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