Mukhtar Khas (special attorney) The Lahore High Court held that (Special Attorney) only represents the defendant in court and is not bound by any financial or legal obligation in his personal capacity. 2025 LHC 5370 Writ Petition No.65675/2021Mukhtar Khas (special attorney) The Lahore High Court held that (Special Attorney) only represents the defendant in court and is not bound by any financial or legal obligation in his personal capacity. 2025 LHC 5370 Writ Petition No.65675/2021
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| Mukhtar Khas (special attorney) The Lahore High Court held that (Special Attorney) only represents the defendant in court and is not bound by any financial or legal obligation in his personal capacity. 2025 LHC 5370 Writ Petition No.65675/2021Mukhtar Khas (special attorney) The Lahore High Court held that (Special Attorney) only represents the defendant in court and is not bound by any financial or legal obligation in his personal capacity. 2025 LHC 5370 Writ Petition No.65675/2021 |
اس فیصلے سے درج ذیل اہم نکات واضح ہوئے:
1. خصوصی وکیل کی ذمہ داری:
خصوصی وکیل (Special Attorney) صرف مدعا علیہ کی نمائندگی کرتا ہے اور ذاتی حیثیت میں کسی مالی یا قانونی ذمہ داری کا پابند نہیں ہوتا۔
2. ضمانتی بانڈ کا اطلاق:
اگر ضمانتی بانڈ غیر قانونی یا غیر ضروری طور پر دیا گیا ہو، تو اس کے تحت جائیداد کی نیلامی غیر قانونی ہوگی۔
3. ڈگری کا نفاذ:
عدالتی ڈگری صرف مدعا علیہ (Judgment Debtor) کے خلاف نافذ کی جا سکتی ہے، خصوصی وکیل یا کسی اور فریق پر نہیں۔
4. سی پی سی کے قوانین:
سی پی سی کے آرڈر III رولز 1 اور 2 کے تحت خصوصی وکیل کے اختیارات اور ذمہ داریاں سختی سے متعین ہیں، اور وہ صرف عدالت میں نمائندگی اور کارروائی تک محدود ہیں۔
5. عدالتی نظیریں:
ماضی کے فیصلوں کی روشنی میں عدالت نے واضح کیا کہ خصوصی وکیل کو مدعا علیہ کی ذاتی ذمہ داریوں کا بوجھ نہیں اٹھانا پڑ سکتا۔
6. فیصلے کا قانونی اثر:
عدالت نے ضمانتی بانڈ کے غیر قانونی اطلاق اور جائیداد کی نیلامی کو کالعدم قرار دے دیا، اور مدعا علیہ کے خلاف دیگر قانونی ذرائع استعمال کرنے کا حکم دیا۔
یہ نکات اس بات پر زور دیتے ہیں کہ قانون میں ہر کردار کی ذمہ داری واضح اور محدود ہوتی ہے، جس کی خلاف ورزی جائز نہیں۔
فیصلے کے اہم نکات
1. خصوصی وکیل کی قانونی حیثیت:
خصوصی وکیل (Special Attorney) صرف مدعا علیہ کی نمائندگی کے لیے مقرر ہوتا ہے، اور اسے ذاتی طور پر مقدمے کی ذمہ داری نہیں اٹھانی پڑتی۔
ڈگری کی تکمیل خصوصی وکیل کے بجائے مدعا علیہ کے خلاف نافذ کی جانی چاہیے۔
2. ضمانتی بانڈ کا دائرہ:
اگر ضمانتی بانڈ کسی غیر ضروری یا غیر قانونی بنیاد پر دیا جائے، تو اس کے تحت کسی بھی جائیداد کی نیلامی غیر قانونی ہوگی۔
عدالت نے درخواست گزار کی جائیداد کی نیلامی کے احکامات کالعدم قرار دیے۔
3. قانونی نظیریں:
عدالت نے مختلف عدالتی نظیروں کا حوالہ دیا جن میں خصوصی وکیل کی ذمہ داری کو محدود رکھا گیا ہے۔
نظیروں کے مطابق خصوصی وکیل ذاتی حیثیت میں کسی ڈگری کے نفاذ کا ذمہ دار نہیں ہوتا۔
4. فیصلے کی قانونی وضاحت:
سی پی سی کے آرڈر III رولز 1 اور 2 کے تحت خصوصی وکیل کا کردار واضح ہے: وہ صرف "نمائندہ" ہوتا ہے اور اس پر مدعا علیہ کی مالی یا قانونی ذمہ داری عائد نہیں کی جا سکتی۔
5. فیصلہ:
عدالت نے قرار دیا کہ ضمانتی بانڈ اور اس کی بنیاد پر جائیداد کی نیلامی غیر قانونی ہے۔
درخواست گزار کو اس غیر قانونی عمل سے تحفظ دیا گیا۔
Stereo.HCJDA.38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.65675/2021
Muhammad Naeem
Vs. Additional District Judge etc.
Date of hearing
25-11-2024
Petitioner by
Syed Muhammad Usman Hadi Bukhari,
Advocate.
Respondents No.3 &
4 by
Ms. Areesha Sajid, Advocate.
ABID AZIZ SHEIKH, J. Through this Constitutional
Petition the petitioner has challenged the impugned orders dated
01.03.2021, 13.09.2021 & 18.09.2021 (impugned orders) passed by
the Executing Court and the Appellate Court, whereby his Objection
Petition against the attachment and auction of his immovable
property was dismissed and the auction schedule was announced.
2.
Relevant facts are that contesting-respondents No.3 & 4 (wife
& minor-daughter — contesting respondents) filed a family Suit for
Dissolution of Marriage, Recovery of Dower, Dowry Articles and
Maintenance Allowance (Suit) against respondent No.5/defendant
(Muhammad Akbar). Respondent No.6 (Abdul Aziz) appeared on
behalf of the defendant through Special Power-of-Attorney/Exh.D2
(hereinafter referred to as Special Attorney). He contested the Suit
by filing written-statement; however, the Suit was decreed on
06.05.2015 against respondent No.5. During execution, the said
decree could not be satisfied against respondent No.5/Judgmentdebtor (hereinafter referred to as Judgment-debtor), resultantly, the
Special Attorney was sent to Civil Prison. The Petitioner stood
Surety on behalf of Special Attorney by tendering his Surety Bond
dated 31.05.2019 (Surety Bond). Subsequently, Petitioner’s
immovable property, mentioned on the Surety Bond, was attached
on account of failure to satisfy the decree by the Judgment-debtor
and the Special Attorney. The Petitioner filed Objection Petition,
Writ Petition No.65675/2021
which was however dismissed through the impugned order dated
01.03.2021, which was assailed by the Petitioner in Appeal and his
Appeal was also declined on 13.09.2024, thereafter, Petitioner’s
attached immovable property was put to auction while announcing
the auction schedule vide impugned order 18.09.2021; hence, this
Constitutional Petition.
3.
Learned counsel for the Petitioner submits that the decree was
passed against the Judgment-debtor and not against the Special
Attorney, hence, since the Petitioner stood Surety on behalf of the
Special Attorney, his attached immovable property could not be put
to auction for satisfaction of the decree.
4.
Learned counsel for contesting-respondents, on the other
hand, supported the impugned orders and submits that the Petitioner
executed Surety Bond on behalf of the Judgment-debtor and Special
Attorney, therefore, his attached immovable property was lawfully
put to auction for failure to satisfy the decree. She further submits
that because respondents No.5 & 6 have common interest with the
Petitioner and they are intentionally delaying this matter, therefore,
this case may be decided on merits after hearing the contestingrespondents.
5.
Arguments heard. Perusal of the record transpires that the Suit
was filed by contesting-respondents against respondent No.5, which
was decreed by the Trial Court on 06.05.2015. The Special Attorney
on behalf of respondent No.5 was neither impleaded as defendant in
the Suit nor the Suit was decreed against him, rather he appeared in
the Court only in the capacity of Special Attorney on behalf of the
Judgment-debtor. In absence of any decree against the Special
Attorney or specific clause to this effect in Special Power-of-attorney
(Exh.D2), the Executing Court could satisfy the decree only against
the Judgment-debtor but not against the Special Attorney, who never
appeared in the Suit in his personal capacity but only as Special
Writ Petition No.65675/2021
Attorney of the Judgment-debtor. In the circumstances, order for
arrest of the Special Attorney and sending him in Civil Prison for
execution of the decree was not warranted in law. Consequently, the
Surety Bond by the petitioner for release of Special Attorney was
also neither required nor enforceable.
6.
The same view was also expressed by this Court in
“Muhammad Aslam Vs. Ayyan Ghazanffar and 2 others” (PLD 2012
Lahore 392), where it is held as under:-
“12. Whenever the question of interpretation of Power
of Attorney is considered, it is now a consensus on the
point that deed of power of attorney is strictly to be
construed and a power which has not been assigned in
specific terms cannot be presumed to have been given by
the principal to the attorney. The attorney in this case
when extended the power to defend the suit on behalf of
the defendant was never provided with any liability to the
effect that in case of any possible decree against
defendant/judgment debtor, the same can equally be
executable against the attorney. Even in Muhammad
Pervez’s case (Supra) the Hon’ble Supreme Court of
Pakistan is of the view that it is the judgment debtor
Fazal-e-Haq who is bound to satisfy the decree either
himself or through attorney. Keeping in view such
findings of the Hon’ble Supreme Court of Pakistan, the
attorney in his independent capacity cannot be booked
for satisfaction of decree which was never granted
against him.”
Same opinion was expressed by this Court in “Muhammad Nawazish
Ali Vs. Family Judge and others” (2021 CLC 1841) in following
words:-
“27. The counsel for Respondents No.2 and 3 halfheartedly attempted to argue that the decretal `amount
payable to Respondent No.3 could be realized from the
Petitioner as he was pursuing the cases on behalf of
Sarfraz Hussain. This contention deserves a short shrift.
The Petitioner is the special attorney of Sarfraz Hussain
Writ Petition No.65675/2021
and never assumed any liability on his behalf. He neither
posted surety bond nor otherwise gave an undertaking to
the Court at any point of time for payment of any money.”
The Islamabad High Court in “Muhammad Mohsin Fawad Vs. Hina
Tayyaba Khalil and another” (2018 YLR 2199) reiterated this view
as under:-
“25. The fact remains that the petitioner is not the
judgment debtor. The petitioner was not a party to the
suit instituted by the respondents. The petitioner
happened to be pursuing the case on behalf of Dr.
Qureshi before the Courts. It is not disputed that the Plot
was owned by the petitioner and not by Dr. Qureshi.
Therefore, the decree dated 03.10.2014 could not be
satisfied by attaching or selling the property which
belonged to the petitioner. The said decree is to be
executed against the judgment debtor i.e., Dr. Qureshi,
and none other.”
No doubt the Hon’ble Supreme Court in “Muhammad Pervez Vs.
Mst. Nabila Yasmeen and 2 others” (2004 SCMR 1352) held that
judgment debtor is bound to satisfy the decree either himself or
through the attorney, however, in the present case it is not shown
from the Special Power-of-Attorney (Exh.D2) that the Judgmentdebtor required the Special Attorney to burden the liability for
satisfaction of decree. This legal position is also explained by this
Court in the case of Muhammad Aslam, supra.
7.
From the above case law, there is no doubt that the Special
Attorney was not liable for execution of the decree, consequently,
the Surety Bond executed by the Petitioner for release of the Special
Attorney cannot be made basis to attach his immoveable property for
the satisfaction of decree. Though the Surety Bond is also on behalf
of the Judgment-debtor besides the Special Attorney, however, when
the Petitioner was not required at first place to execute the Surety
Bond for release of Special Attorney, then the whole superstructure
on the basis of illegal detention order will crumble down and
Writ Petition No.65675/2021
Petitioner’s property cannot be auctioned merely because he
mentioned the name of Judgment-debtor in his Surety Bond, which
was not required to be executed at the first instance.
8.
There is a clear distinction between "surety" & "specialattorney''; Rules 1 & 2 of Order III of the Code of Civil Procedure,
1908 (CPC) deal with the Special Attorney. For convenience Rules
1 & 2 of Order III of the CPC are reproduced hereunder:-
“1. Appearances, etc., may be in person, by
recognized agent or by pleader.– Any appearance,
application or act in or to any Court, required or
authorized by law to be made or done by a party in such
Court, may, except where otherwise expressly provided
by any law for the time being in force, be made or done
by the party in person, or by his recognized agent, or by
a pleader [appearing, applying or acting, as the case
may be,] on his behalf:
Provided that any such appearance shall, if the
Court so directs, be made by the party in person.
2.
Recognized Agents.– The recognized agents of
parties by whom such appearances, applications and
acts may be made or done are—
(a) persons holding powers-of-attorney,
authorizing them to make and do such
appearances, applications and acts on behalf of
such parties;
(b) persons carrying on trade or business for and
in names of parties not resident within the local
limits of the jurisdiction of the Court within which
limits the appearance, application or act is made
or done, in matters connected with such trade or
business only, where no other agent is expressly
authorized to make and do such appearances,
applications and acts.”
9.
Plain reading of Rule 1 of Order III of the CPC shows that a
recognized agent can appear, file applications or act in or to any
Court on behalf of any party; Rule 2 of Order III of the CPC refers
to a class of persons who could be treated as recognized agents of
parties, which include a person holding power-of-attorney
Petition No.65675/2021
authorizing him to make and do such appearance, application and act
on behalf of a party. The words “appearance”, “application” and
“act” used in Rules 1 & 2 ibid are not defined therein. However,
applying ordinary meaning to these words the word “appear” means
to be present and to represent the party at various stages of litigation.
The words “application” or “act” mean necessary steps, which can
be taken on behalf of a party in the Court or in the offices of the Court
in the course of litigation. Thus, the recognized agent or Special
Attorney is entitled to appear, file application and act for a party but
not liable for satisfaction of the decree passed against the Judgmentdebtor; whereas a “surety” is governed under Section 128 of the
Contract Act, 1872 (Act) and enforceable for performance of any
decree or any part thereof under Section 145 CPC. Though CPC does
not strictly apply in family matters but its principles are applicable.
10. From the above legal position, it is evident that the Special
Attorney will only appear on behalf of a person and will not be liable
as a surety unless he executes surety bond on behalf of a judgmentdebtor for the satisfaction of decree.
11. In view of above discussion, this Writ Petition is allowed and
the impugned orders are set-aside being without lawful authority and
of no legal effect. However, this judgment will not preclude the
Executing Court to proceed against the Judgment-debtor through all
modes available under the law for satisfaction of the decree.
(ABID AZIZ SHEIKH)
JUDGE
Approved for Reporting.
JUDGE
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