Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. S – 1178 of 2016

Date of hearing: 15.10.2018.

Date of judgment: 26.10.2018.

Mr. Parya Ram M. Vaswani, Advocate for the petitioners.

Mr. Raj Kumar D. Rajput, Advocate for respondents No.1 to 3.

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This petition impugns an order passed by the executing Court in Execution Application No. 1 of 2002 and order dated 20.02.2016 passed in Revision Application No. 22 of 2015.

2. Brief facts are that Seetal Mal filed a suit bearing No. 85 of 1985, having new No. 36 of 1999, for specific performance which was dismissed. An appeal was preferred by the legal heirs as Appeal No. 123 of 2000, which appeal was allowed and the decree by the appellate Court was set aside vide judgment dated 11.10.2001. An execution application was filed by the respondents No.1, 2 and 3, and Mukhtiarkar was directed to issue sale certificate. It is a case of the petitioners that at the relevant time when the directions were given to issue sale certificate, Khushi Muhammad, who was defending the suit, was not the owner. It is a case of the petitioners that they acquired the subject property by virtue of a sale deed. On filing execution application, when it transpired to the decree holder that an attempt was made to frustrate the decree by change of title on the basis of a sale deed, an application under Section 47 and 151, CPC, was filed to direct the subsequent purchaser to execute sale deed in pursuance of the judgment and the decree of the Civil Court. The application was contested by the petitioners on the strength of a sale deed executed in August 2011. Though the subject application was dismissed, but the Mukhtiarkar concerned was directed to issue sale certificate to the decree holder. The subject order was challenged by way of a revision bearing No. 22 of 2015 before Additional District Judge-IV Mirpur Mathelo, which was also dismissed. The petitioners as such, being aggrieved with the two orders, have now preferred this petition.

3. Learned counsel for the petitioners has argued that the question of lis pendence under Section 56 of the Transfer of Property Act is not applicable where no notice regarding pendency of suit or proceedings was registered under Section 18. He submits that the petitioners have independent rights arising out of a sale deed which entries were maintained by the concerned Mukhtiarkar.

4. Learned counsel for the respondents / decree holders, on the other hand, submits that the subject sale deed is an abuse of process of law, as intentionally and deliberately, the connivance deed was registered despite having knowledge of the dispute and the pendency of the case. Learned counsel submits that the petition otherwise is not maintainable since the trial Court while dismissing the application observed that in case the petitioners have any objection to the execution of the decree, they may well agitate their grievance in terms of Order XXI of the Civil Procedure Code.

5. I have heard the learned counsel and perused the material available on record.

6. Primarily, it is to be seen whether the petitioners have a case in terms of Section 27 of the Specific Relief Act and Section 41 of the Transfer of Property Act. All that is required to be established in these proceedings at least was that they were the bonafide purchasers without having knowledge of any dispute between the plaintiffs and defendants, who have been arrayed as respondents. The perusal of the record reveals that during pendency of the suit, an application for contempt was filed. Khushi Muhammad and Ali Nawaz both were alleged contemnors and the notices were issued in November 2006. The suit was decreed on 12.10.2001 and execution application was filed on 07.09.2002, and was allowed on 17.05.2003.

7. In addition to the above facts, the revenue record also reveals that it was noted by the revenue officer in the revenue record, as produced by the petitioners themselves, that the case of Khushi Muhammad son of Karam Ali is pending before the Court and until the Court decides the matter, the entry will remain adjourned. This entry was made on 12.10.2004.

8. The record further reveals that the subject sale deed, on the strength of which petitioners are relying, was executed on 22.08.2011, that is much after the issuance of contempt notices to one of the petitioners i.e. Ali Nawaz, and much after the endorsement in the revenue record that the case is pending. In presence of all these objections, it can be safely presumed that the petitioners had knowledge of the pendency of the suit in the shape of contempt notice received by one of the vendee / petitioner, and in the shape of endorsement made in the revenue record that the case is pending by all vendees. Section 27 of the Specific Relief Act and Section 41 of the Transfer of Property Act provide defence to the subsequent buyer provided that they have acted in good faith, having no notice of the previous dispute or the pendency of the case. The protection as available to the petitioners in terms of Order XXI Rule 99 and 101, CPC, is not available in terms of Order XXI Rule 102, CPC, where the property stood transferred after institution of the suit in which the decree was passed.

9. The question of the pendency of the suit and necessary registration under Section 18 of the Registration Act is misconceived since the decree had already been passed and as such the defence, as claimed in terms of the registration of an agreement of sale under Section 18 of the Registration Act was not available.

10. The above facts and circumstances lead to irresistible conclusion that the petitioners have not approached the Court with clean hands. This petition is against the concurrent findings of two Courts where the petitioners were not considered to be the bonafide purchasers or without notice of such dispute. The indulgence as such cannot be granted.

11. The petition as such is dismissed along with the pending applications.

J U D G E

Abdul Basit