IN THE HIGH COURT OF SINDH AT KARACHI

 

 

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/