Objections in Execution


IN THE COURT OF 2nd SENIOR CIVIL JUDGE EAST AT KARACHI.

Suit No.423/2011
Ex.No.23/2013

Mst. Naeema & Ors. ……        ……………… Appellant.
VERSUS
Mst. Nasreen & Ors. ……………………… Respondent.

OBJECTIONS
ON BEHALF OF THE DEFENDANT NO.1

Humbly shewth:

The background facts of the case and objections on behalf of the defendant No.1, on the execution field by the plaintiffs are submitted as under:

1.                  Preliminary objections:

The decree is not drawn in form and manners prescribed by the civil procedure code as it did not contain particulars prescribed of claim and relief granted. The Decree resulting out of judgment which is announced abruptly and with no evidence on record. It is also left to be determine that the answering defendant along with defendant No.6 ( Sub Registrar Jamshaid Town) and defendant No.7 ( Assistant district officer –Revenue & Land), is responsible jointly or severely for relief claimed.

2.                  Back ground of case and Facts:

2.1         The answering defendant / J.D is a widow of deceased Muhammad Habib S/O Muhammad Bashir, who was murdered on 9-11-2005 in result of F.I.R No.338/2005 U/S:302/324/34 PPC, PS.Jamshaid Quarters was lodged. Upon completion of investigation, the Investigation officer of F.I.R had declared in challan as accused to Mst. Naeema ( Plaintiff No.1 who is real sister of deceased Habib), Mst Yasmeen (Plaintiff No.2 who is daughter of plaintiff No.1) Abdul Saboor (Plaintiff No.3 who is Son of Plaintiff No.1) and Muhammad Naeem (who is real brother of deceased Habib).

2.2            Thereafter the trial No.111/2006 of said case crime was commenced and during trial the defendants of this matter / case had deposed as a witness of said case of murder by plaintiffs. The trial was concluded and in result the plaintiffs were acquitted.

2.3            Thereafter, in continuation of said trial, the answering defendant had preferred to file appeal against judgment of acquittal against plaintiffs, vide Cr. Appeal No.135/2011 at Honorable High Court, which is still pending. And in response, just for fraudulent gains and just to pressurize the defendants to push them at step back from leveling criminal charges, the plaintiffs had field subject suit i.e No. 463/2011 at this honorable court.

2.4            That the subject suit i.e 463/2011 was decreed 1st time as ex-party vide judgment dated 10-02-2012 and accordingly the plaintiffs were granted relief as entitled to claim for damages Rs.3,00,000/= from only defendant No.1 on account of malicious prosecution. Thereafter being dissatisfied, the plaintiffs themselves had preferred appeal vide Civil Appeal No.70/2012. Thereon the appellate court was pleased to remand back the matter for deciding it on merits.

2.5            It is a matter of record that as per case diaries, in hasty manners and abruptly, by setting the dates with gap of  2/3 days, with out giving opportunity or with out leading evidence, the judgment dated:05-4-2013 in subject matter was announced under Order 8 rule 10 CPC.

2.6            That it is matter of record that the answering defendant/ defendant No.1 had lodged F.I.R against murder of her husband. The Investigation of said FIR was conducted by I.O / police department who had declared accused to plaintiffs. Other defendants No.2, 3, 4 & 5, who are also blood relatives of plaintiffs, had witnessed the matter in court also. The said FIR / case is pending in continuation of trial at appellate forum at Honorable High court. But with out taking in consideration all above, the judgment is directing also to defendant No.6 & 7, who has no concern with subject FIR / case, to pay damages with out any determination of portion of damages.

2.7            After murder of husband, the circumstances against  answering defendant / defendant No.1, have become merciful. She has young aged 4 children and has no money to bear charges of litigation. The plaintiffs have made involved her in criminal case of FIR No.407/2012, U/S. 506-B, PS. jamshaid Quarter falsely, which is also pending at court of honorable judicial magistrate East. Due to threats of  plaintiffs, she has left the city at place of her shelter and use to live at Lahore with her relatives. She always intended to file appeal against judgment but due to circumstances she could not avail chance.

3.               OBJECTIONS

3.1            Order 20 Rule 6 reads as under:

(2)   The decree shall also state the amount of cost incurred in suit, and by whom and out of what property and in what proportions such costs are to be paid.

3.2            In first ex-party judgment the trial court  pronounced  as “the plaintiffs are entitled to claim for damages Rs.3,00,000/= from only defendant No.1 on account of  malicious prosecution” and in second ex-party judgment, on same set of record or evidences, the same court pronounced again as “ the suit is decreed as prayed with no order as to cost” .

3.3            That the case FIR No.338/2005, U/S 302/324/34 PPC, PS. Jamshaid Quarters, which is subject of cause of action in impugn judgment, is still pending in continuation of trial at Honorable High court vide Cr.Appeal No.135/2011.

3.4            That the appellants are the accused of Murder of their real brother, this appeal is field just to take step back the respondents from perusal of murder case at Honorable High court. More over  the appellant  also have lodged  New FIR vide No.407/2012, U/S 506-B/34/109, Ps. Jamshaid Quarters, against the defendants.

PRAYER

All above said facts & objections may be considered as this is a case of stay of execution under order 21 rule 26, for reasonable time to enable the judgment debtor to approach the appellate forum to avail remedy.

Karachi.                                                               DEFENDANT NO.1
Dated:        
             ADVOCATE FOR THE DEFENDANT NO.1  

VERIFECATION.
I, Mst.Nasreen Wd/O deceased Muhammad Habib, Muslim, adult resident of Karachi, do hereby verify on oath that whatever stated above is true and correct to the best of my knowledge and belief.

                                 DEPONENT


The deponent above named is identified by me:
                                                                     ADVOCATE
Solemnly affirmed and stated on oath before me at Karachi on this--------- day of November, 2013 by the deponent above named who is identified to me by Mr. Farhan Khaliq Anwer Advocate who is known to me personally.

 

COMMISSIONER FOR TAKING AFFIDAVITS





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