The selling of property by judgment debtor during execution proceedings is sham transaction

#2022LHC4510       #1973)89ITR190      #2017SCMR321     #1990CLC686
#2015SCMR128       # 2015CLC667      
#2002 SCMR1950
The selling of property by judgment debtor during execution proceedings
becomes a sham transaction?
Lahore High Court
Naeem Shehzad v. Additional District Judge, Arifwala and 2 others
Writ Petition No. 208019 of 2018
Mr. Justice Muhammad Shan Gul
https://sys.lhc.gov.pk/appjudgments/2...
Facts: A family suit was decreed in favour of the respondent. Respondent filed an
execution petition. During execution proceedings respondent moved an
application to attach property which was allowed by the learned executing court
and it was ordered to be attached. This led the petitioner before this court to file
an objection petition maintaining that he had purchased the said property from his
real brother.

Issues: i) How the selling of property by judgment debtor during execution proceedings
becomes a sham transaction?
ii) Whether the family court has the power to execute its decree by adopting the
modes provided for recovery of land revenue?

Analysis: i) Where innocence is claimed by a party causing loss to the other, “the rule of
equity which applies to an innocent person signifies that the one who could
prevent the loss must suffer and not the other who was powerless to do so…
where an agreement to sell and subsequently a sale deed was executed to frustrate
a judgment and decree passed by a Family Court, the sale deed was declared to be
invalid and it was held that the sale deed was invalid having been effectuated only
to frustrate the judgment and decree of the Family Court and was thus a
fraudulent transaction.
ii) The technical trappings of execution provided in the Code of Civil Procedure
were not strictly applicable to execution proceedings before a Family Court and
that Section 13(3) of the West Pakistan Family Courts Act, 1964 empowered the
Family Court to execute its own decree for payment of money by adopting modes
provided for recovery of arrears of land revenue.
Conclusion: i) The selling of property by judgment debtor during execution proceedings
becomes a sham transaction if executed to frustrate the judgment and decree.
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ii) The family court has the power to execute its decree by adopting the modes
provided for recovery of land revenue.