IN THE HIGH COURT OF SINDH AT KARACHI
Execution No.31 of 2009
Decree Holder: Haji Abdul Razik
through:Mr. Abdul Wajid Wyne Advocate.
Judgment Debtor: Moinuddin Khan
through Mr. Muhammad Rafi Kamboh, Advocate.
Date of hearing: 16.09.2014.
Date of order: 23.09.2014.
O R D E R:
Salahuddin Panhwar j- Through instant execution application Decree Holder Seeks execution of decree dated 19.11.2008.
2. Record reflects that suit No.1484 of 2006 for specific performance, perpetual injunction & special damages was instituted; during proceedings both the parties entered into compromise, thus suit was decreed in view of terms and conditions of compromise, para-6 being relevant is reproduced herewith:-
“That the defendant is also agreed that he will transfer the said property in favour of the plaintiff within 15 days from the passing of the decree in the above case; and in case of failure plaintiff is entitled to execute the same through Nazir of this Honourable Court after deposit the balance sale consideration of Rs.56,50,000/-“
Order dated 02.03.2010 reflects as under:-
“Both the sides are present. The parties are also present in person. By consent the judgment debtor is allowed to withdraw Rs.10,000,00/- (Rupees Ten Lacs only) out of the sale consideration deposited with the Nazir of this Court and CMA in that regard stands allowed accordingly. The Nazir is also present. According to him the judgment debtor has got no title documents which are required to be handed over to the decree holder together with the finalization or execution of the matter as a matter of routine and legal requirement in that regard and as per the judgment debtor whatever documents had been with them, they have already deposited in the Court and they are ready to undertake that they will not exploit the title documents if they find the same in future in any manner whatsoever, and will face the consequences and will accept all responsibility in case of any such exploitation by anybody as well. Nazir is directed to transfer the property in favour of the decree holder as per the rules. It is however proposed (on the question of exploitation of the missing title documents) publication may be made in newspapers for general public to the satisfaction of the Nazir and that of the court.”
Whereas, order dated 27.05.2010 reads as under:-
“Mr. Moinuddin Ahmed, Nazir of this court is present and he has submitted a report on 27.05.2010. Nazir has also intimated that the draft of conveyance deed was submitted by the Decree Holder, which is okay however, the stamps have not been affixed on the conveyance deed, which are awaiting. The property falls within the territorial limit of PECHS and the original documents are also not available. The Nazir has also shown his ignorance whether 99 years’ lease of this property was issued by the Society or not, which is very crucial. Nazir is directed to approach to the PECHS Office and ascertain the status of the property including the tile documents and indenture of lease. Nazir will also apply for duplicate copies of all relevant documents to the PECHS Society. This exercise should be completed within two weeks.
At this stage, the learned counsel for the Judgment Debtor states that the Judgement Debtor desperately needs the funds for some necessary domestic works including the education of children, therefore, at least Rs.10 Lacs may be ordered to be released by the Nazir of this Court to the Judgment Debtor. The learned counsel for the Decree Holder has opposed that instead of Rs.10 Lacs, only Rs.5 lacs may be released. Since the property is also in possession of the Decree Holder since 2005 and the further steps for necessary transfer of the property in the name of Decree Holder have already been ordered today, which will be effected by the Nazir of this Court expeditiously. In my view, Rs.10 lacs may be released to the Judgment Debtor to cater his needs, however, the Judgment Debtor will execute a Personal Bond before the Nazir of this Court that in case the deal will not be materialized and transfer will not be possible in the name of the Decree Holder, he will return the entire amount whatever he has received from the Decree Holder.”
3. On 01.02.2011 an order was passed which reflects that J/D is one of the legal heirs of deceased Fazaluddin Khan, who is owner of the subject property, thus notices were issued to the other legal heirs. Subsequently, albeit, they appeared on 20.04.2011 and sought time to engage counsel but remained absent thereafter. At this stage, it would be conducive to refer order dated 01.03.2013 is as under:-
“On perusal of record, it reveals that on 03.12.2010 Nazir has submitted report that the subject property of the present Execution Application is in the name of Fazaluddin Khan and the Judgment Debtor is only one of the legal heir of said Fazaluddin Khan. Four other legal heirs of said Fazaluddin Khan namely Raeesa Khatoon, Dr. Naeemuddin Khan, Moninuddin Khan and Shahida Khatoon appeared before the Nazir and filed their objection to the sale of the subject property. By the order dated 29.09.2011 present Execution was adjourned sine-die till Judgment Debtor obtains a Declaration regarding his entitlement to receive the entire sale consideration excluding other legal heirs or brings on record Letter of Administration/execute Registered Conveyance Deed in favourof the Decree Holder. Judgment Debtor on that date stated before this Court that there was a family settlement by which all the legal heirs have relinquished their claim. Alongwith CMA No.586/2012 judgment debtor has filed certified copy of the judgment of Civil Suit No.304/2012, which was decreed exparte. Said suit filed by the present Judgment Debtor against the legal heirs of Fazaluddin Khan, the actual owner of the subject property for declaration and mandatory injunction with the following prayers:-
A. A judgment/decree in favour of the plaintiff and against the defendants by declaring that the plaintiff is lawful owner of the property bearing Plot No.766-C, measuring 107 Sq. Yards, Commercial Area Block-2, PECHS, Karachi.
B. A judgment/decree in favour of the plaintiff and against the defendants by declaring that the Plaintiff is entitled to sell, transfer and convey the property bearing Plot No.766-C, measuring 107 Sq. Yards, Commercial Area, Block-2, PECHS, Karachi and to withdraw the sale consideration from the Nazir of Honourable High Court of Sindh at Karachi.
C. A judgment/decree in favour of the Plaintiff and against the defendants by directing the defendant s through mandatory injunction to sign all such documents, which are required for transferable title in favour of the plaintiff.
D. A judgment/decree in favour of the Plaintiff and against the defendants by permanently restraining the defendants , their respective legal heirs, attorneys, beneficiary person or persons acting for them or under their instructions from demanding share creating third party interest in the property bearing Plot No.766-C, measuring 107 Sq. Yards Commercial Area, Block-2 PECHS, Karachi.
E. A judgment/decree in favour of the Plaintiff and against the defendants by granting any further relief more relief(s) as this Honourable Court deems just and appropriate in the present circumstances.
On 12.12.2012 this Court directed that at the first instance, notice be issued to three persons identified as defendants in the Civil Suit before the Civil Court. Notices were repeatedly issued to the defendants in Civil Suit who are legal heirs of Fazlaluddin Khan, the father of the Judgment Debtor through all modes except publication but it appears that service is not effected upon them through ordinary course. Let notice be issued to the Defendants in Civil Suit No.304/2012 through substituted service i.e. publication in daily “Jang” Karachi as well as by other prescribed modes.”
4. Learned counsel for the J.D. contended that though suit property was in the name of his late father but there was family settlement because of which he was exclusive owner, due to objection raised by other legal heirs, he filed a Civil Suit No.304/12, which was decreed on 18.10.2012 whereby J.D. was declared exclusive owner; no appeal is preferred by any legal heirs against the judgment; J.D. is ready to comply with the direction of this Court but D.H is not ready to bear the expenses on the change of title, when decree reflects that it is the sole duty of D.H.
5. It is surfaced that when both the parties entered into compromise and filed compromise agreement in consequence of such compromise agreement, J.D. was not exclusive owner of such property. Moreover, it is a matter of record that J.D. filed Civil Suit and got decree in his favour; record is not clear whether any appeal is pending against that decree, however, other legal heirs are not appearing before this Court inspite of knowledge.
6. Without prejudice to above, since this Court has already issued direction for compliance of decree, thus J.D. is bound to make all necessary arrangements for effecting the mutation in his favour by removing all clouds over the legal character of subject matter property, thereafter, Nazir shall proceed further and ensure that decree is complied with in its letter and spirit. In above terms, execution application is allowed. It is made clear that in case litigation over the subject matter property is pending, instant order would not be implemented and consequently execution application will remain adjourned as sine die ,however, decree holder would be entitled to take legal course against J.D in accordance with law.
7. With regard to MA. No.586 of 2012 apparently it is on premature stage, hence same is devoid of merits, thus dismissed, however, in case the decree is satisfied judgment debtor would be entitled for release of sale consideration.
Karachi. JUDGE
Dated:_________
Sajid Akhtar