Execution No.
20 / 2004
M/S Union Bank Limited --------------------------------------------
Decree Holder
Versus
Iqbal Ahmed Malik --------------------------------------------------Judgment
Debtor
For
hearing of CMA No. 528 of 2009.
Date of hearing: 01.04.2015
Date of Order: 20.04.2015
Decree
Holder: Through M/s Habibur Rehman and Ghulam
Mujtaba Advocates.
Judgment Debtor: Through
Mr. Salim Salam Ansari Advocate.
Objector: Through Mr. Rana
Azeem Advocate.
O R D E R
Muhammad
Junaid Ghaffar J: This
is an application filed under Order 21 Rule 13 & 54 read with Section 151
CPC on behalf of the decree holder, whereby, it has been prayed that this Court
may be pleased to attach the property / business being run in the name of M/s Shah
Nawaz Packages, at Land / Plot No. 4 & 5 Sector No. C-V, Export Processing
Zone, Landhi Industrial Area, Karachi.
2. Briefly
the facts as relevant are that the decree holder had filed a Suit for recovery
of AED 907,973.50 bearing No. 80 of 2003 which had proceeded Ex-parte against
the judgment debtor and vide judgment dated 25.2.2004 the Suit was decreed and
thereafter decree dated 3.3.2004 was prepared. The judgment debtor being
aggrieved, had preferred an application under Section 12(2) CPC which was also
dismissed and the same was further challenged through High Court Appeal No. 158
of 2006 which was also dismissed vide order dated 17.5.2006. Thereafter the judgment
debtor assailed the same before the Hon’ble Supreme Court by filing Civil
Petition for Leave to Appeal No. 497-K/2006 which was also dismissed by the
Hon’ble Supreme Court vide order dated 22.8.2007. Therefore, insofar as the
present Execution proceedings are concerned, the same are in respect of a
judgment and decree which has since attained finality and such fact has not
been disputed by the learned Counsel for the judgment debtor. It has been
stated in the listed application that pursuant to orders of this Court the
judgment debtor was examined on 7.5.2009 who has testified on oath that the
above property belongs to him and being run under the name and style of M/s Shah
Nawaz Packages, whereas, the aforesaid property has been gifted to his wife
namely Mst. Rehana Naseem. It is further stated that the judgment debtor is
neither insolvent and has falsified and committed perjury as the property in
question belongs to him, hence, he is liable to be arrested and sent to prison
as he has transferred / alienated the property in question with intention to
defraud the creditors.
3. Learned Counsel for the decree holder
contended that the business being run in the name of M/s Shah Nawaz Packages
was owned by the judgment debtor and was transferred by him to his wife through
a gift which was executed to defraud the creditor / decree holder. Learned Counsel
further contended that the plot in question is a leased property of Export
Processing Zone and at the very first instance, it could not have been gifted,
as the judgment debtor was not the absolute owner of the property in question, therefore
such gift, even otherwise is against the Sharia Law. Per learned Counsel notices
were issued to Karachi Export Processing Zone by this Court on 03.05.2011, who
have filed relevant documents through which it reflects that the property in
question is on 30 years lease. It was further contended by the learned Counsel
that the gift in question was a conditional transfer; therefore, it does not
fulfill the criteria of hiba as provided in Sharia, whereas, it only allows the
donee to carry on the business and nothing else. Learned Counsel also referred
to Article 140 of Muhammadan Law and contended that the gift in question was
merely to defraud the decree holder from enjoying the benefit of decree which
had been passed in the year 2003. In view of hereinabove submissions, learned Counsel
prayed that the property in question may be ordered to be attached.
4. Conversely learned Counsel for judgment
debtor contended that the gift in question was executed much prior to the
filing of Suit for recovery, whereas it is not merely a gift as Export
Processing Zone Authority has, thereafter, executed a lease in favour of the
donee. Per learned Counsel the gift in question does not fall in the exceptions
provided in Section 51 CPC as the property was leased prior to filing of the Suit,
hence the judgment debtor cannot be sent to prison. Learned Counsel further
contended that neither the intention was bad nor malafide as the gift had been executed
much prior to the filing of the Suit. Learned Counsel also submitted that the
donee / objector has filed a Suit bearing No. 325 of 2013 against the decree holder
and the donor, whereas, the property in question is already mortgaged with M/s
Bank Al-Habib Limited against which the donee / objector has obtained loan for
running its business. Leaned Counsel finally contended that it is settled law
that even if the entry is not registered in the records of right a gift is
complete. In support of his contention learned Counsel has relied upon the
cases reported in Abdul Basit Zahid Vs. Modaraba Al-Tijarah and 2 others PLD 2000 KARACHI
322, Precision Engineering Ltd. and others VS. The Grays Leasing Limited PLD
2000 LAHORE 290 and Mir Haji Ahmed Ali Khan Talpur and 9 others Vs. Government
of Sindh and 2 others PLD 1976 KARACHI 316.
5. Similarly learned Counsel appearing on
behalf of the objector / donee in addition to adopting the arguments of the
learned Counsel for the judgment debtor, contended that insofar as the plot in
question is concerned the same is on lease agreement, whereas, the objector is
paying rent on such lease and the same in fact belongs to Export Processing
Zone, therefore, even otherwise the land in question cannot be attached.
6. I have heard all the learned Counsel,
perused the record and the case law relied upon by the parties. Insofar as the
facts as stated hereinabove are concerned the same are not in dispute. The
judgment dated 25.2.2004 and decree dated 03.03.2004 have attained finality as application
under Section 12(2) CPC was dismissed, where after, High Court Appeal bearing
No. 158 of 2006 has been dismissed vide order dated 17.5.2006, whereas the
Hon’ble Supreme Court has also declined leave to appeal preferred by the
judgment debtor vide order dated 22.8.2007. The only question before this Court
is, that as to whether the property in question, which according to the decree
holder has been fraudulently gifted / alienated by the judgment debtor, can be
attached or not. It appears that some directions were issued by this Court on
03.05.2011 to the Export Processing Zone Authority, Karachi, whereas details
were called in respect of the property in question and a statement dated
29.9.2011 along with relevant documents of the property in question have been
submitted by the Export Processing Zone Authority. From perusal of the same, it
reflects that that property in question was gifted by the judgment debtor to
his wife / objector vide Gift Deed dated 25.10.2001. Thereafter a lease deed dated
21.2.2002 was executed between the Export Processing Zone and the objector / donee,
whereby the property in question has been leased in favor of the objector /
donee. The record further reflects that a letter dated 14.7.2005 was issued by
the Export Processing Zone Authority, Karachi, whereby a charge has been
created on the assets of Messrs Shah Nawaz Packages in favour of M/s Bank
Al-Habib Limited, Offshore Banking Unit, Karachi Export Processing Zone,
Karachi, whereas the Suit in the instant matter was filed by the decree holder
on 16.1.2003. Therefore, insofar as the facts and the relevant dates are
concerned the same are not in dispute and it is an admitted position that upon
investigation carried out by this Court, it has come on record that the
property in question is, at present, not in the name of the judgment debtor,
whereas, the same was gifted / transferred by the judgment debtor to his wife
on 25.10.2001, i.e. much prior to filing of instant Suit by the decree holder. It
has been contended through listed application as well as by the learned Counsel
for the decree holder, that since the judgment debtor is avoiding execution of
decree, on one pretext or the other, he is liable to be arrested by this Court
for enforcement of the decree in question. The proceedings of arrest /
detention of a judgment debtor are governed by the provisions of Section 51 CPC
and it would be advantageous to refer to it which confers powers on the Court
to enforce execution, including arrest and or detention, which reads as under:-
“51. Powers to Court to enforce execution.- Subject
to such conditions and limitations as may be prescribed, the Court may, on the
application of the decree-holder, order execution of the decree—
(a) by
delivery of any property specifically decreed;
(b) by
attachment and sale or by sale without attachment of any property;
(c) By
arrest and detention in prison;
(d) By
appointing receiver; or
(e) In
such other manner as the nature of the relief granted may require;
[Provided that, [xxxxx] execution by detention in
prison shall not be ordered unless, after giving the judgment debtor an
opportunity of showing cause why he should not be committed to prison, the Court,
for reasons recorded in writing, is satisfied—
(a)
that the judgment debtor, with the
object or effect of obstructing or delaying the execution of the decree,--
(i)
is likely to abscond or leave the
local limits of the jurisdiction of the Court, or
(ii)
has after institution of the suit in
which the decree was passed, dishonestly transferred concealed or removed any
part of his property, or committed any other act of bad faith in relation to
his property; or
(b)
that the judgment debtor has, or has
had since the date of the decree, the means to pay the amount of the decree or
some substantial part thereof and
refuses or neglects or has refused or neglected to pay the same, or
(c)
that the decree is for a sum for which
the judgment debtor was bound in a fiduciary capacity to account. “
7. Perusal of the aforesaid provision of
Section 51 CPC, specially the proviso (a) (ii), it reflects that the Court in Execution
proceedings after giving an opportunity of showing cause, may detain a judgment
debtor in prison, if the Court comes to a conclusion that the judgment debtor,
has after institution of the Suit in which the decree was passed, dishonestly
transferred, concealed or removed any part of the property or committed any
other act of bad faith in relation to his property. It appears that insofar as
the prayer for detention of the judgment debtor in prison as raised through
listed application on behalf of the decree holder is concerned, the same appears
to be misconceived, as admittedly the property in question has been gifted /
leased out in favour of the donee / objector much prior to the institution of
the Suit, therefore, insofar as the detention of the judgment debtor in prison is
concerned, no such powers can be exercised by this Court under Section 51 CPC
with specific reference to proviso (a) (ii), whereas, the decree holder has not
been able to show any material, whereby, it could reflect that the property in
question was dishonestly transferred / gifted and or alienated by the judgment
debtor. The gift deed and the lease documents or their veracity has not been
challenged or dislodged independently nor the credibility and or the
authenticity of these documents have been disputed which otherwise are legally
executed and admissible documents, except the objection that the gift, at the
outset is void as the donor was not the absolute owner of the property in
question. In my candid view this objection has no merits to sustain as the
decree holder has failed to substantiate the same with any corroborating
material and has failed to bring on record any such document or evidence
whereby such objection can be sustained. Therefore, in my view, no case has
been made out on behalf of the decree holder, whereby, any order could be
passed for detention of the judgment debtor in prison in terms of section 51
CPC.
8. Insofar as the other objection which has
been raised by the learned Counsel for the decree holder, that the judgment
debtor was not the absolute owner of the property in question, therefore, the
gift was against the Sharia Law is concerned, the same appears to be based on
the premise that the property in question was leased in favour of the donee / objector
with certain conditions attached to it, hence could not have been gifted or the
gift in question was not complete and absolute. It is of utmost importance to mention
that the property in question is situated in an area which is owned by the
Export Processing Zone Authority, Karachi, which has been developed exclusively
for Industries engaged in the business of hundred percent Exports. In the said
area, no ordinary person can establish an Industry, except the one who has been
granted lease and land by the Export Processing Zone Authority and who
otherwise fulfills the legal requirements of establishing such Industry in the
specified area. Therefore, if there are certain conditions attached to the
lease in question in this regard, to safeguard the interest of the lessor
(Export Processing Zone Authority), this would not amount to putting a
restrictive covenant, whereby, such property cannot be transferred by way of
gift / hiba. Further, in the instant matter not only the land in question has
been gifted by the judgment debtor, but such gift is also in respect of and not
limited to, building. Construction raised thereon, machinery, fixtures, etc.,
including the name and style of business, having its own Goodwill; therefore,
even otherwise the contention of the learned Counsel with regard to putting in
any conditions and or restrictions in the lease deed is also misconceived as
the same is not attracted in the case of building, construction, fixtures etc.
Therefore, the issue of absolute ownership or not, otherwise is not relevant
and rather appears to be misconceived and is hereby repelled.
9. It would not be out of place to mention
that the learned Counsel for the decree holder tried his level best to convince
this Court to see that whether any extra ordinary relief could be granted to
the decree holder in view of the fact that the decree in the instant matter has
not been satisfied since 2003, whereas it has served no useful purpose and the
Court must enforce its execution by even engaging some extra ordinary measures
and must not find itself constricted in the vinculum of the procedural law,
which if implemented, would ultimately benefit the judgment debtor and the
honor and dignity of the Court would not be upheld and would give an impression
that the Court in such matters is helpless. Learned Counsel had also submitted
that technicalities of law should not, in any manner, be allowed to impede the
interest of justice. Though, this may appear to be an attractive argument, but
with utmost respect to the learned Counsel, there can be hardly any two
opinions that in the process of dispensing and administration of justice, a
party to a lis must not be knocked out on any such technical ground. However,
this is not the case here, and neither such argument is tenable nor the Court
ever considers itself nor ought to, in a position, whereby an impression of
being helplessness can be inferred. The Court must and has to implement the
law; come what may. There is no occasion for any embarrassment for the Court,
if the law, as applicable, is followed. Therefore the contention and
submissions by the learned Counsel for the decree holder in this regard being
misconceived is hereby repelled with the observation that the Court must and
always does acts in accordance with law, however, with an inherent margin of
error which is always open to correction and or modification by the appellate
Courts. Adding to it, I may observe further, that this is neither a
Constitutional Court having extra ordinary powers vested in it to exercise discretion
in a manner so as to dispense and meet the ends of justice out of way, nor and
more importantly, the Court even otherwise must not enter into a venture to
legislate by itself, whereby, such authority could not be questioned as being
above the law. The Court has to work within the ambit of law and to interpret
it in the given facts and circumstances of a case before it, and nothing else.
Even otherwise, this is an executing Court, which has its limitation, and
perhaps cannot pass a declaration, as the one being sought on behalf of the
decree holder, whereby the gift in question can be declared to be void and
illegal.
10. This Court in the case of Sohail
Farooq Shaikh Vs. the State reported in 2009 MLD 375, has dealt with a more or less similar situation. In
that case in Execution proceedings, whereby a property was being sold, an
objection was raised by the objector that the property bearing Plot No. A-62,
Block-A, measuring 135 square yards situated in Al-Falah Co-operative Housing
Society Limited, Drigh Colony, Karachi, does not belong to the judgment debtor as
it was leased in her favor in the year 1991, even before filing of the Suit and
the same was acquired by her from her own resources. The Court after examining
the entire material on record, came to the conclusion that the contention of the objector had force for the reason that the property
was leased in her favour even before filing of the Suit and it cannot be said
that the judgment debtor with intention to frustrate the decree had transferred
the property in favor of the objector. The Court further held that “whereas the Court in Execution Proceedings
cannot go into the fact that who provided the funds for the purchase of the property
and the production of title documents
by the objector was a sufficient proof that the property belongs to the objector.
Therefore, by respectfully following the above view, I am of the opinion that in
the given facts and circumstances of the instant case it cannot be held by this
Court in present execution proceedings, that the gift in question is against
the Shariah law or the same has not been properly gifted and or executed as the
judgment debtor was not an absolute owner of the property in question as such
determination is not within the domain of this Court in Execution proceedings,
whereas as stated hereinabove, the decree holder has not been able to challenge
or dispute the title documents of the objector obtained by way of gift / lease
issued in her favor by the Export Processing Zone Authority with any substantial
material or evidence.
11. In view of hereinabove facts and
circumstances of the instant case, I am of the view, that the decree holder has
failed to make out a case, whereby the property in question can be attached, as
the same does not belong to the judgment debtor as it stood gifted / transferred
/ leased / alienated in favor of the objector / donee, much prior to the filing
of Suit in the instant matter. Accordingly, listed application, having no force
is hereby dismissed.
Dated:
20.04.2015
J U D G E
ARSHAD/