SARDAR ALI vs ABDUL GHAFOOR S — 2022 CLC 1925 LAHORE-HIGH-COURT-LAHORE

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SARDAR ALI VS ABDUL GHAFOOR S.47 O. XXI, Rr. 97, 100 & 103---Suit for specific performance---Execution---Objection petition---Factual controversy as to title---Court's duty to frame issues and record evidence---Suit by petitioner against one of the respondents was decreed, execution petition was filed---Another respondent allegedly was owner of suit property prior to the institution of suit, filed objection petition and application for cancellation of sale deed before Executing Court---Executing Court accepted objection petition, cancelled registered sale deed and dismissed the execution petition---Petitioner's appeal was also dismissed by appellate Court---Validity---Admittedly, said one of the respondent was owner of Ahata (measuring 8 marla, 1 sarsohi), who sold portion (4 marla 2 sarsohi) to the petitioner---Petitioner filed suit for specific performance against said respondents on who submitted consenting written statement---Trial Court decreed the suit---One of the alleged purchasers of the said Ahata for consideration from said one of the respondents through allegedly registered power of attorney executed by said respondent in his favour, alienated portion of said Ahata measuring 4 marla 2-sarsohi in favour of the respondent who got executed an oral sale mutation sanctioned prior to institution of petitioner's suit---Executing Court executed sale deed in favour of petitioner and possession of decretal property was also transferred to him on---Said respondent moved objection petition and also moved application for cancellation of said sale deed before Executing Court---Executing Court, without framing issues and recording evidence, accepted the petition/application dismissing the execution petition of petitioner and setting aside the sale deed---Mutation sanctioned in favour of said respondent, which was prior to the institution of the suit by petitioner on basis of agreement to sell, but such agreement to sell was executed prior to the sanction of said mutation---Said mutation had not been incorporated by said one of the respondents (original owner) himself but through general attorney having power of attorney executed on date after the date of execution of said agreement to sell and in a city other than the city where property situated---Facts of the purchase of property by said respondent from alleged seller, for alleged consideration, and execution of power of attorney by original owner in favour of such seller were not established on record which required evidence---Said respondent had every knowledge of decree (of Trial Court) as he himself challenged that decree by way of application under S.12(2) of Civil Procedure Code, 1908---Question of limitation was also relevant---All questions could not be resolved without recording of evidence---Executing Court had to frame necessary issues to have recourse to evidence to resolve the factual controversy---Executing Court summarily accepted the assertions made by said respondent on extraneous consideration/personal assumptions---Revision petition was allowed, impugned orders of Courts below were set aside, and execution petition, objection petition, and application for setting aside sale deed were deemed pending before the Executing Court.

SARDAR ALI vs ABDUL GHAFOOR S — 2022 CLC 1925 LAHORE-HIGH-COURT-LAHORE

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