Last Updated: Wednesday May 23, 2007
Law on attachment before judgment
Citation Name : 2007 YLR 389
PESHAWAR-HIGH-COURT-NWFP
Side Appellant : MIRA JAN
Side Opponent : State
---Ss.
88, 89, & 561-A---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---attachment of property of
absconder---Restoration of attached property---Limitation---Accused who was
involved in criminal case, having remained absconder for a considerable period,
proceedings under S. 88, Cr.P.C. were initiated against him and an order for attachment of his land was
passed---Accused surrendered, himself before the Court and was arrested; he was tried and was
acquitted---Accused, after his acquittal filed application for release of his
land, but his application was dismissed by Judicial Magistrate and appeal
against judgment of Magistrate was also
dismissed being timebarred---Possession of attached land remained with accused
during alleged period of his abscondence---Land was not practically attached on
the spot and accused remained in its actual physical possession during alleged
period of abscondence, so he could not get knowledge of attachment ---Accused stated that he
got information about attachment order on a specified date and that fact stood un-rebutted---Submission
of application by accused for restoration of attached land under S.89, Cr.P.C.
within one month of date of knowledge, was well within time---Refusal to
release attached property on the only ground that accused remained absconder in
a criminal case, in which he had been ultimately acquitted, would be absolutely
unjustified and against all canons of justice---Allowing petition, attached
land was ordered to be released in favour of petitioner.
Citation Name : 2007 CLD 175
KARACHI-HIGH-COURT-SINDH
Side Appellant : SAUDI PAK COMMERCIAL BANK
LTD.
Side Opponent : A.H. INTERNATIONAL (PVT.)
LTD.
---Ss.
16(1), 23(1)(2) & 9(5)---Civil Procedure Code (V of 1908), O.XXXVIII, R.5
& S.151---Transfer of Property Act (IV of 1882), S.52---Suit for recovery
of bank loan---Application for attachment of property before pronouncing judgment ---Scope---Transaction of sale not made to defeat or delay
prospective decree or to defeat right of creditors---Effect---Plaintiff Bank
filed suit for recovery of loan amount against defendants and also joined
different banking-companies as defendants having Pari Pasu charge on assets of
the defendants---During pendency of suit plaintiff filed application under S.16
of Financial Institutions (Recovery of Finances) Ordinance, 2001, read with O.
XVIII, R.5 & S.151, C.P.C. to attach property of defendants---Plaintiff
contended that on having information that defendants intended to sell property
in question, notice was served on them to the effect that sale was in violation
of S.53 of Transfer of Property Act, 1882, as defendants were heavily indebted
to plaintiff and that in case property was not attached it was to become
difficult for plaintiff to adjust liability---Defendant Banking Company argued
that with its permission defendants agreed to sell property in question on
which four defendant-Banking Companies had their Pari Pasu mortgage charge;
that by sale of said property, defendants were to be in a position to adjust
part of their liabilities; that property in question was not mortgaged with
plaintiff-Bank and that plaintiff-Bank had only 7% share in total liability
against defendants, hence plaintiff was not entitled for attachment of property in
question---Validity---Under S.16(1) of the Financial Institutions (Recovery of
Finances) Ordinance, 2001, financial institution could after filing of suit,
file an application to restrain customer from transferring, alienating, parting
with possession of property which was mortgaged, pledged, hypothecated or
assigned or which was subject to any obligation---Since property in question
was neither under mortgage of plaintiff, nor plaintiff had any charge over it
nor same was subject to any obligation in favour of plaintiff, therefore,
application under S.16(1) of the Ordinance was not maintainable---Under Ss. 16,
23(1) & 23(2) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, before pronouncement of judgment and interim decree or otherwise, Plaintiff-Bank could ask
for attachment of property of customer
over which it had charge and customer could not transfer it but after passing
of decree---Customer could not deal with any of his property except with prior
written permission of Banking Court---Bank, however, could apply for attachment of property other than one
over which Bank had charge under. O.XXXVIII, R.5, C.P.C.---Under S.53 of
Transfer of Property Act, 1882, transaction for sale of immovable property by
debtors could not be held void or voidable transaction at the option of
creditors, if the same was carried out in normal course of business bona fide
and not with intent to defeat or delay creditors-Plaintiff in order to bring
his case within ambit of S.53 of Transfer of Property Act, 1882, was to
establish that transfer of property was made with intent to defeat right of
creditors-Plaintiff in order to attract provisions of S.53 of Transfer of
Property Act, 1882, should have filed suit seeking declaration that transaction
was void but no such relief had been asked for by plaintiff in his
suit---Notice for sale of property in question was. published much prior to
filing of suit and as such it did not lie in mouth of plaintiff to say that
defendants were disposing of property with intent to obstruct or delay
execution of any decree that might be passed against them---Object of
O.XXXVIII, R.5, C.P.C. was not to paralyze the normal and bona fide transaction
and unless it was established that defendants were about to dispose of property
with intent to defeat or delay decree that might be passed, normally, Court was
not to pass order for attachment of property before judgment ---Defendant Banking Company's charge on property was prior in time to
that of plaintiff's and on principle of qui prior est tempore portior estjure
(he has a better title who was first in time), plaintiff had no prima facie
case---Balance of convenience also was in favour of defendants as by disposal
of mortgaged property, outstanding dues of defendant Banking Companies who had
charge on property could be adjusted, whereas to restrain sale of property was
to result in increasing liabilities of defendants---Application for attachment of property was dismissed.
Citation Name : 2006 CLD 1437
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD IMRAN SHEIKH
Side Opponent : HABIB BANK LTD. through Authorized
Attorneys’
--S.19--Transfer
of Property Act (IV of 1882), S.53---Decree, execution of---attachment of property---Objection
petition by nephew of judgment -debtor claiming to be owner of attached
property---Production of PT-I Form and allotment letter by objector in support
of claim---Dismissal of objection petition by Banking Court on the ground that
allotment letter for not being a title deed would not confer upon objector any
right in property---Subsequent registration of sale-deed in favour of objector
by owner of property---Validity---Impugned order had rightly been passed as
sale-deed was not in existence at the time of its passing---Had sale-deed been
produced before Banking Court. Result would
have been different---Objector was neither mortgagor nor guarantor nor judgment -debtor ---Attached
property was not furnished as security for repayment of finance---judgment -debtor was neither owner
nor had any nexus with attached property---Parties to such sale-deed were not judgment-debtors---Objectors case would not fall within scope of
“fraudulent transfer” as envisaged under S.53 of Transfer of Property Act.
1882---Such property which was attached under misconception and dis-information,
was not liable to be attached---High Court accepted objection petition and
released property from attachment.
Citation Name : 2006 YLR 754
LAHORE-HIGH-COURT-LAHORE
Side Appellant : BASHIR AHMAD
Side Opponent : Mst. MUSSARAT SHAHEEN
---S.5,
Sched.---Civil Procedure Code (V of 1908), O. XXI, Rr. 58, 59 & 62---Constitution
of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of
maintenance allowance---attachment proceedings---Objection petition against attachment ---Suit for recovery of
maintenance allowance having been decreed, decree-holders filed execution
proceedings and sought attachment of Tractor in question which was ordered to be
attached---Petitioners in their objection petition had claimed that the Tractor
which was owned by them had no concern with the judgment -debtor---Such objection petition having been dismissed by
Executing Court and even in revision, petitioners had filed constitutional
petition---Record showed that one petitioner and one respondent were joint
owners of the tractor in question which was mortgaged with Bank---Petitioners
admittedly had acquired rights of ownership and title in tractor before order passed by Executing
Court regarding attachment of tractor and even before passing of decree in the suit for recovery of maintenance
allowance---Trial Court had not cared to investigate claim of petitioners as
required by O.XXI, Rr.58, 59 & 62, C.P.C. and by not applying judicial mind
had haphazardly dismissed objection petition filed by petitioners---Impugned
orders passed by Courts below were set aside by High Court in constitutional
petition and remanded case to Executing Court for adjudication afresh on merits
in accordance with law.
Citation Name : 2005 PLD 621
LAHORE-HIGH-COURT-LAHORE
Side Appellant : HAPPY FAMILY ASSOCIATES
Side Opponent : Messrs
--O.
XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of
cheque---Grant of leave to defend the suit---Order of attachment before judgment ---When the Trial Court passed the conditional leave granting order,
requiring the defendant to furnish the, surety bonds and the defendant in
compliance of the said order, filed the bonds, which, however, due to certain
inadequacies, were subsequently rejected by the Court and decree was passed,
which meant that earlier order of attachment , before the judgment , if any, was withdrawn by the Court and the specific
procedure provided by O.XXXVII, C.P.C. for the grant of leave, conditionally or
otherwise was followed---When the said decree was challenged by the defendant before High Court, the Court
directed the defendant to furnish fresh surety bonds to the satisfaction of the
Court within one month and in the judgment , it was provided that in case of default in compliance of
the said direction, the suit filed by the plaintiff shall stand
decreed---Question of attachment of property had never been raised by the defendant, before the High Court and thus
order of attachment lost its efficacy and it
was the judgment of the High Court, which
the defendant had to follow and comply by furnishing fresh sureties in terms
thereof.
Citation Name : 2005 CLC 1827
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUSHTAQ AHMAD
Side Opponent : MEHMOOD AHMAD
--O.
XXXVII, Rr. 2, 3; O.XXXVIII, Rr.4, 5, Ss.47, 48, 145 & O.XXI, Rr.64, 66,
67, 69, 92 & 94---Suit for recovery of amount on basis of cheques---attachment of property of defendants before decree---Execution of
decree, objection against---Suit was filed along with application under O.
XXXVIII, R. 4, C.P.C. for attachment of property of defendants before decree---Defendants had filed application for grant of
leave to appear and defend suit---Plaintiff had stated in his statement that if
defendants would submit surety bond equal to suit amount they could be allowed
to appear and defend suit---Trial Court dismissed plaintiff's application filed
under O.XXXVIII, R.4, C.P.C. as withdrawn and granted leave to appear and
defend suit to defendant subject to their furnishing security
accordingly---Defendants, who could not arrange for surety, filed application
that property mentioned in their application for leave to appear and defend
suit be attached as security for grant of leave to appear and defend suit;
Court ordered accordingly and adjourned the suit for recording evidence of
parties---Trial Court, after completion of evidence of parties, decreed spit
against one defendant only and dismissed suit to the extent of remaining
defendants and five defendants were ordered to be deleted from the
suit---Executing Court, on filing execution petition by decree-holder, directed
that property detailed in application of defendants for leave to appear and
defend suit, be sold through public auction, against which objection petition
was filed by defendants seeking annulment of order of auction---Defendants had
contended that by dismissal of suit to their extent, they were not liable for
performance of decree passed against one defendant only---Validity---Defendants
did stand surety and gave undertaking for performance of decree irrespective of
their being defendants/judgment -debtors, their status as surety neither did come to an end
nor they could avoid any liability by taking benefit of deletion of their names
from suit---Executing Court before proceeding with property of said defendants, did not issue
any notice to them and straightaway proceeded to order auction of their
property after giving notice to judgment -debtor only which was violation of S.145, C.P.C. which had
provided that while proceeding against property of surety, Court was bound to
give notice to him---Order of Executing Court directing auction of property of
defendants through Court Auctioneer, was declared to be without lawful
authority and of no legal effect and was set aside.
Citation Name : 2005 CLC 865
LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAEED AHMED
Side Opponent : JAN SULTAN
---S.
46---Objection petition during proceedings on a precept---Maintainability---attachment of property by Civil Court
in pursuance of precept issued by Executing Court---Dismissal of objection
petition by Civil Court on merits---Such dismissal was upheld by Appellate
Court on the ground that what was pending before Civil Court was a precept---Validity---Main execution
proceedings never stood transferred to Civil Court as under S.46, C.P.C.,
Executing Court issues a precept to another Court having jurisdiction in the
matter, where property belonging to judgment -debtor proposed to be attached is situated---Decree under
execution passed about twenty years back and upheld up to Supreme Court could
not be executed primarily upon objections filed only by brother of judgment -debtor---High Court
dismissed revision petition in circumstances.
Citation Name : 2005 CLC 641
LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHAMAD KHAN
Side Opponent : Sh. MUHAMMAD AKBAR
---O.
XXXVII, Rr. 2 & 3, O.XXI, Rr.12 & 13---Contract Act (IX of 1872), Ss.
134 & 139---Suit for recovery of amount on basis of Promissory
Note---Execution of decree---attachment of property of surety---Discharge of surety---Plaintiff
filed suit for recovery of amount and defendant was allowed to appear and
defend suit subject to his furnishing security---“A” stood surety for the
defendant and bound himself, his property and a residential house to satisfy
decree if passed against the defendant and bond in that respect was submitted before Trial Court---Plaintiffs
compromised the dispute and defendant had stated that he had paid considerable
amount to the plaintiff and had no objection if the suit to the extent of
remaining amount was decreed---Such having been accepted by plaintiff, suit was
decreed accordingly---Decree-holder in execution proceedings moved an
application for attachment of property of the surety, who challenged initiation of
execution proceedings contending that though he stood surety for the judgment -debtor, but he had never
undertaken that even if a consent decree was passed, he would be
liable---Validity---Surety, according to the bond had categorically undertaken
that in case suit was decreed, he would be liable to pay decretal amount and he
also bound his property to satisfy decree passed by Trial Court---No
reservation was made in the surety bond that he would be bound only by a decree
passed after contest of the suit---No rule existed showing that in case of a
consent decree surety was ipso facto discharged.
Citation Name : 2004 CLD 502
LAHORE-HIGH-COURT-LAHORE
Side Appellant : Messrs NAZIM POLY SACK (PVT.)
LIMITED
Side Opponent : NATIONAL DEVELOPMENT FINANCE
CORPORATION,
---O.XXI,
Rr.23-A, 58, 59 & 60---Suit for recovery of Bank loan was decreed and
property of the judgment -debtor was ordered to be attached by the Banking Court ---judgment debtor filed an objection
petition under O.XXI, Rr.58, 59 & 60, C.P.C. for release of movable and
immovable properties from attachment ---Banking Court, directed the judgment debtor to deposit a sum of Rs.5, 00, 000 under O.XXI,
R.23-A, C.P.C. which was not deposited by the judgment -debtor on which his objection petition was
dismissed---Bank, decree holder, resisted the objection petition by way of
filing of the reply, wherein a preliminary objection was raised regarding, the
non-compliance of the provision of O.XXI, R.23-A, C.P.C.---Validity---Banking
Court, although directed the judgment -debtor to deposit Rs. 5, 00, 000 in purported exercise of
powers conferred under O. XXI, R.23-A, C.P.C., yet no sufficient opportunity
was granted to the judgment debtor for the compliance of the said order, inasmuch as
the impugned order was passed in absence of counsel of the judgment -debtor---Banking Court, in
circumstances, should have waited for counsel of the judgment -debtor or if the judgment -debtor had failed to .
comply with the terms of order under O.XXI, R.23-A, C,P.C., it would have been
in the fitness of things to have provided another opportunity for the deposit.
of the said amount---judgment -debtor, however, deposited the amount in question under
the instructions of the High Court (in first appeal) thus order of Banking
Court had substantially been complied with and there remained no impediment in
setting aside the order of the Banking Court more so when the objection
petition was mainly dismissed on account of the non-compliance of the order
regarding deposit of Rs. 5, 00, 000 without rendering its findings on the
merits of the objection petition---Order of the Banking Court, in
circumstances, was not sustainable, in law as no sufficient opportunity was
granted to judgment debtor for the deposit of requisite amount---Objection
petition filed by the judgment -debtor would be deemed to be pending before the Banking Court, which
shall decide the same after hearing the parties in accordance with law.
Citation Name : 2004 CLC 1711
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUMTAZ AHMAD KHAN
Side Opponent : Malik TAJ MUHAMMAD
----O.
XXXVII, R.5, O.XXXVIII, R.5 & O.I, R.10---Specific Relief Act (I of 1877),
S.12---Suit for recovery or money on the basis of pronote--attachment of properties---Application
under O.I, R.10, C.P.C. to be impleaded as party on the ground that one of the
properties so attached had been transferred to the applicants through an
agreement and their suit for specific performance qua the same property was
pending in the Civil Court---Applicants further pleaded that any attachment order passed thereabout
would affect adversely their interest---District Judge accepted the application
for attachment before judgment of the property and dismissed the application for being impleaded as
party to the suit--Plaintiffs in the suit for recovery also applied to be
impleaded as party in the suit for specific performance---
Citation Name : 2004 MLD 1839
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD IFTIKHAR KHAN
Side Opponent : DISTRICT AND SESSIONS JUDGE,
---Art.
199---Civil Procedure Code (V of 1908), O.XXI, Rr. 52 & 58---Constitutional
petition---Maintainability---Execution petition--attachment ---Show-cause notice-- Executing Court had attached the
refund amount lying with the department and owned by the judgment -debtor---Repeated
directions issued by the Executing Court were not complied with and the amount
attached was not remitted---Petitioner had made a reference in terms of section
170 of the Income Tax Ordinance, 2000---Executing Court issued a show-cause
notice to the petitioner--Reply of show-cause notice was filed alongwith an
objection petition under Order XXI, rule 58, C.P.C.---Executing Court directed
the petitioner to appear in person---Validity---Proceedings before the Executing Court were
not under law of contempt of Court---Mere issuance of show-cause notice did not
confer any right to any addressee to maintain a Constitutional
petition---Petition was dismissed as premature in circumstances.
Citation Name : 2003 CLD 497
QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : Mst. PARVEEN QASIM JAN
Side Opponent : HABIB BANK LIMITED
----S.
18---Civil Procedure Code (V of 1908), S.52---Banking decree, execution- of---attachment of property owned by sons
of the judgment -debtor---Sons of the
borrower contended that the decree could not be enforced against them as the
property owned by them was not inherited by them--Banking Court attached the
property on the pretext that the property owned by the sons was purchased by
the judgment -debtor, though much before the loan was,
sanctioned---Validity---Decree could be executed against the deceased judgment -debtor to the extent of
the property left by him and legal representatives of the deceased could not be
held responsible beyond the property let by the deceased---Findings of the
Banking Court were erroneous that the property was purchased by the deceased in
the name of his sons, as there was nothing on record to support the findings of
the Banking Court---Even if the property was ,purchased by the deceased in the
name of his sons, the same was done much prior to the execution of the
mortgaged deed and the sons were owners of the property at the time of
execution of the mortgage deed and the deceased judgment -debtor never claimed to be the owner of, the property in
dispute---Entire property of sons could not be attached towards satisfaction of
the entire decretal amount in circumstances.
Citation Name : 2003 CLD 528
LAHORE-HIGH-COURT-LAHORE
Side Appellant : Ms. BUSHRA KHANUM
Side Opponent : HABIB BANK LTD.
----
Recovery of loan amount---Execution of decree-Decree was passed in favour of
Bank and property was attached and auctioned by the Executing Court subsequent
to the stay order by the High Court in appeal---Legality---Petitioner moved an
objection petition against the attachment of the property on the ground that the judgment -debtor had executed the
agreement to sell in his favour for the sale of the property and that he was
also in possession thereof--Executing Court, dismissed the objections holding
that the agreement to sell did not create any right or interest in the movable
property and on the basis of mere agreement, objections could not be
maintained---Petitioner, aggrieved of the order of the Executing Court came up
in appeal before the
High Court whereupon auction of the property was stayed---Executing Court being
unaware of the said order of stay put the property to auction and respondent
was declared as the highest bidder---Validity---Auction was conducted in
violation of the stay order passed by the High Court---"Stay order"
issued by a superior Court against the order of the subordinate Court, even if
not conveyed/ communicated or served upon the opposite side, or the Court
below, shall operate from the moment, it had been passed, in contrast to the
injunctive order would become effective when it was served and in certain cases
when it came to the knowledge of the concerned person--Property having been put
to auction, subsequent to the stay order, such auction was null and void.
Citation Name : 2003 CLD 288
LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDUL MAJID
Side Opponent : ALLIED BANK OF
Banking
Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997
----Ss.18 & 21---Civil Procedure Code (V of 1908), O. XXI, Rs.23-A, 58, 59
& 60---Execution of decree-- -Objection petition by appellant seeking de-attachment and release of disputed
property---Banking Court dismissed objection petition---Validity---Appellant in
capacity of one of judgment debtors had filed objection petition---Banking Court had
dismissed objection in a summary manner without directing appellant to comply
with provisions of O. XXI, R.23-A, C.P.C.---Bank did not object to remand of
case, if appellant was directed to pay decretal amount before entertaining of objection
petition---High Court accepted appeal, set aside impugned order with direction
that Banking Court would entertain objection petition only after deposit of
decretal amount by appellant and would then decide the same after affording
adequate opportunity to parties to produce evidence to establish their claims;
but if appellant failed to deposit decretal amount within stipulated time, then
his objection petition would be deemed to have been dismissed.
Citation Name : 2003 CLD 280
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD SALEEM
Side Opponent : ALLIED BANK OF
Banking
Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 ----Ss.
18 & 21---Civil Procedure Code (V of 1908), O. XXI, Rr. 58, 59 &
60---Execution of money decree---Objection of appellant seeking de-attachment and release of disputed
property was that he was neither a borrower nor judgment debtor---Banking Court dismissed objection
petition--Validity---Record showed that appellant was neither arrayed as
defendant in the suit nor any decree had been passed against him---Appellant
had specifically asserted that he was neither judgment -debtor nor guarantor nor customer nor had furnished title
deed of property to the Bank---Banking Court had not dealt with such matters,
but had passed impugned order in a mechanical manner without considering the
contentions raised by appellant in the objection petition---Banking Court before passing impugned order
ought to have investigated the claim and objections to attachment of property raised by
appellant by providing sufficient opportunity to parties for establishing their
respective claims through production of evidence--Impugned order was neither in
conformity with record nor in consonance with law on the subject---High Court
accepted appeal, set aside impugned order, resultantly objection petition would
be deemed to be pending before Banking Court, which would decide the same in accordance
with law after affording adequate opportunity to parties to produce evidence to
establish their respective claims.
Citation Name : 2002 CLD 1742
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MAJID & SONS
Side Opponent : NATIONAL BANK OF
Banking
Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance 1997
----Ss. 18(6) & 21---Civil Procedure Code (V of 1908), O.XXI,
R.90---Execution proceedings---Objection to sale of property---Investigation of
claim- --Direction of Executing Court to deposit 2096 of sale price---Failure
of appellant/ judgment -debtor to make such deposit---Dismissal of application---Contention
of appellant was that such application had to be dealt with in accordance with
S. 18(6) of the Act and provisions of O. XXI, R.90, C.P.C. were not to be
followed---Validity---Provisions of C.P.C., stood excluded by non obstante
clause of S. 18(6) of the Banking Companies (Recovery of Loans, Advances,
Credits and Finances) Act, 1997---Execution Court had to decide the objection
in respect of attachment or sale of property within 30 days, and if it found that
such allegation was filed mala fide to delay the sale it could impose penalty
up to 2096 of sale price ---executing Court had acted in violation of the Act
by directing appellant to make a deposit of 2096 of sale price as a condition
precedent for hearing ,of objection---High Court accepted the appeal and set
aside impugned order with the result, that objection petition filed by
appellant would be deemed to be pending before Executing Court to be decided in accordance with provisions
of S.18(6) of the Act.
Citation Name : 2002 CLD 593
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MRS. RAANA AKBAR
Side Opponent : BANK OF
Banking
Companies (Recovery of Loans) Ordinance 1979 ----S.11---Sale of property in
execution of decree---judgment debtor substituted his mortgaged property known as A with
property known as B---Objection of judgment -debtor was that property known as C could not be sold before sale of property known as
A---Validity---Bank had already sold the substituted property known as B in
execution of decree thus property known as C could neither be released from attachment nor exempted from sale.
Citation Name : 2002 CLD 391
KARACHI-HIGH-COURT-SINDH
Side Appellant : MESSRS PRINZE (PVT.) LIMITED
Side Opponent : SHAHID SAEED KHAN
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O.XXXVIII R.5---attachment before judgment ---Furnishing of security for production of
property---Pre-condition---Where Court is satisfied by affidavit or otherwise
that defendant with intent to obstruct or delay execution of any decree that
may be passed against him, is about to dispose of property at any stage of the
suit, the Court can pass an order under O.XXXVIII. R.5, C.P.C.
Citation Name : 2001 CLC 1156
KARACHI-HIGH-COURT-SINDH
Side Appellant : NASIR AHMAD Side Opponent :
PAKLAND CEMENT LIMITED
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O. XXXVII, Rr.2
&.3---Negotiable Instruments Act (XXVI of 1881), S.118---Leave to defend
the suit, grant 4f---Suit for recovery of money on the basis of negotiable
instruments---Dispute was with regard to dishonoured cheques---Issuance of the
cheques and the same being without consideration required evidence to be
led---For the purpose of determining as to whether the disputed cheque was
issued without consideration leave to appear and defend the suit was
granted---Such leave was granted subject to the defendant, furnishing security,
of the amount mentioned on the face of the cheques---Application for leave to
defend the suit was disposed of accordingly.
Citation Name : 2000 CLC 1669
PESHAWAR-HIGH-COURT-NWFP
Side Appellant : GOVERNMENT OF N.-W.F.P.
Side Opponent : COMRADE CONSTRUCTION CO. LTD.
Code of
Civil Procedure 1908 S. 82 & O. XXI, R. 41---Execution of decree---attachment during execution
proceedings---Executing Court during execution proceedings attached vehicles
and development funds of judgment -debtor---attachment order had been called in question by judgmnt-debtor on two
grounds firstly, that Executing Court had not given specific time to
Government/judgment - debtor for payment of decretal amount prescribed in S.82,
C.P.C. and Executing Court in circumstances had not followed procedure as laid
down in said section; secondly, that Court which had passed decree did not
prepare decree-sheet, as provided under the law and that in absence of
decree-sheet, decree could not be executed---Validity---Both the grounds were
baseless and after filing execution application notice was issued to judgment -debtor and representative
of judgment -debtors appeared before Executing Court and sought
various adjournments to make payment of decretal amount, but despite lapse of
more than three months judgment -debtor could not pay the said amount---Sufficient time was
granted to judgment -debtor for payment of decretal amount, but they failed to
make payment---Contention of judgment -debtors that Court had not followed procedure laid down in
S.82, C.P.C. was repelled, in circumstances---Objection of judgment debtors that no decree-sheet
was prepared by Court passing decree, had also no force because decree-sheet
was duly prepared by Court and copy of said decree.-sheet was submitted to
Executing Court--judgment -debtors having failed to show that order passed by
Executing Court was without jurisdiction or illegal or Executing Court had
failed to exercise jurisdiction vested in it or had committed any irregularity,
order of Executing Court could not be interfered with in revisional
Citation Name : 2000 CLC 1177
KARACHI-HIGH-COURT-SINDH
Side Appellant : INTERNATIONAL FINANCE INVESTMENT AND COMMERCE BANK LIMITED
Side Opponent : UNITED BANK LIMITED
Banking
Companies Recovery of Loans Ordinance 1997 ----S. 23---Banking Companies
(Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.
28---Civil Procedure Code (V of 1908), O.XXXVIII, R. 5---Constitution of
Citation Name : 1999 PLD 216
LAHORE-HIGH-COURT-LAHORE
Side Appellant : REHMANIA TEXTILE MILLS (PVT) LTD.
Side Opponent : MUHAMMAD INAYATULLAH KHAN NIAZI
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O. XXXVIII, Rr. 11
& 6---If the property is under attachment during the pendency of suit then ordinarily, under
O.XXXVIII, R.11, C.P.C. it shall not be necessary upon application for
execution of decree to apply for re-attachment of the property.
Citation Name : 1999 PLD 216
LAHORE-HIGH-COURT-LAHORE
Side Appellant : REHMANIA TEXTILE MILLS (PVT) LTD.
Side Opponent : MUHAMMAD INAYATULLAH KHAN NIAZI
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O.XXXVIII,
R.11---Order of attachment of property---Applicant went in appeal against order of attachment and impugned order of attachment was suspended with direction
by Appellate Court that no further proceedings for attachment shall be conducted before the Trial Court---Effect---Order of attachment having ceased to exist, it
could not be said that the order of attachment in the suit was intact and that no fresh order was
required.
Citation Name : 1999 CLC 413
LAHORE-HIGH-COURT-LAHORE
Side Appellant : AZMAT RABBANI
Side Opponent : UNITED BANK LIMITED,
Banking
Tribunals Ordinance 1984 ----S. 11---Civil Procedure Code (V of 1908), O.XXI,
R.58---attachment of
property---Appeal---Objection petition---Appellant tiled objection petition before Banking Tribunal against attachment of property on basis of
agreement to sell with judgment -debtor in respect of attached property, which was rejected--Decree-holder
offered a price five times more than the price mentioned in agreement to
sell---Attached property was mortgaged in favour of decree-holder and all
necessary documents were with the decree-holder---As to how property was agreed
to be sold for paltry amount when decree-holder was ready to purchase that
property at a much higher price was not explained---Appeal was dismissed in
circumstances.
Citation Name : 1999 YLR 478
KARACHI-HIGH-COURT-SINDH
Side Appellant : MESSRS PROGRESSIVE FIBRES LTD.
Side Opponent : MESSRS HYUSUNG CORPORATION
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O. XXXVIII, Rr.l
& 2---Furnishing security for appearance---Plaintiff imported goods from
defendant/exporter, a foreign company having no assets in Pakistan--Plaintiff's
contention was that the goods supplied by the defendant/exporter were contrary
to the agreed description--Application for obtaining security from the
defendant/exporter was filed by plaintiff--Validity---Direction under
O.XXXVIII, C. P. C., could not be issued on the sole ground that the defendant
was .a foreign company and the same had no assets in Pakistan---Application was
dismissed in circumstances.
Citation Name : 1999 MLD 1434
KARACHI-HIGH-COURT-SINDH
Side Appellant : IRAM GHEE MILLS (PVT.) LTD.,
Side Opponent : MALAYSIA INTERNATIONAL SHIPPING CORPORATION BERHAD
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O. XXXVIII, R.5---Suit
for recovery of money alongwith application for attachment of ship before judgment ---Essentials---Plaintiff imported palm oil through defendants, a
shipping corporation---Short delivery of palm oil---Total quantity of palm oil
having not been delivered to plaintiff, he filed suit for recovery of amount of
short delivery against defendants---Plaintiff had also filed application under
O.XXXVIII, R.5, C.P.C. for attachment of ship of defendants before judgment ---For purpose of obtaining an order of attachment of ship before judgment , plaintiff was required to satisfy the Court by affidavit or otherwise
that defendants with intent to delay or to avoid any process of Court or to
delay execution of any decree that could be passed, was attempting to abandon
the jurisdiction of the Court or to dispose of or remove from the jurisdiction
of the Court the property vested in defendants, or was about to leave
Pakistan---All such ingredients were absent in plaintiff's suit---Mere
apprehension of plaintiff that in case vessel was allowed to leave territorial
waters of Pakistan, plaintiff would be left with no assets available, would not
attract provisions of O.XXXVIII, R.5, C.P.C.---Application for attachment of ship was dismissed, in
circumstances.
Citation Name : 1999 MLD 1091
KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD SHAHID MURTAZA
Side Opponent : HABIB BANK LIMITED
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O. XXXIV, R.
7---Preliminary decree---Preliminary decree as provided under O. XXXIV, R. 7,
C.P.C., was to be passed it to the satisfaction of Court plaintiff succeeded to
prove a case of passing of preliminary decree.
Citation Name : 1999 MLD 1091
KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD SHAHID MURTAZA
Side Opponent : HABIB BANK LIMITED
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O. XXXVIII, R.5---attachment before judgment ---In order to obtain an order of attachment before judgment , a party was required to
show that the defendant, with intent to obstruct or delay the execution of
decree, that could be passed against him, was about to dispose of whole or any
part of his property or was about to remove whole or any part of his property
from the local limits of jurisdiction of the Court, with intent to defeat any
decree that could be passed against him.
Citation Name : 1999 MLD 64
KARACHI-HIGH-COURT-SINDH
Side Appellant : ALLIED BANK LIMITED
Side Opponent : GOLDEN EAGLE ENTERPRISES
Banking
Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 ----S.
16---Civil Procedure Code (V of 1908), O. XL, R. 1---attachment before judgment and appointment of receiver---Essentials---Agreement of Finance lease
between parties---Banking Court would have power at any stage .of proceedings
to attach leased property, appoint one or more Receivers of such property or
after passing ;pf interim decree authorise Banking Company to recover property
directly or with assistance of Court---Banking Court having already passed
interim decree, Manager of plaintiff-Bank was appointed as Receiver of leased
property (15 buses) with power to sell them if necessary and recover its dues
or take such appropriate action in respect of such property as plaintiff (Bank)
might deem fit in circumstances.
Citation Name : 1998 SCMR 1950
SUPREME-COURT
Side Appellant : AHMAD ALI ANJUM
Side Opponent : DEPUTY COMMISSIONER,
Constitution
of
Citation Name : 1998 CLC 740
LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZENAT BROTHERS (PVT.) LTD.
Side Opponent : RIAZ & SONS
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O.XXXVIII, R.5, OAX, R.13
& O.XLIII, R.1---attachment before judgment ---Validity---Suit
decreed ex parte meanwhile---Application for setting aside ex parte decree was
pending adjudication--- Plaintiff had moved application for attachment of various bills of
defendant pending in different departments whereupon Trial Court had directed
that all pending bills of defendant be attached which were attached before judgment , thereafter, defendant had filed appeal against attachment before judgment ---Suit having been decreed, thereafter, as ex parte, application for
setting aside the same was pending before Trial Court---Parties had entered into compromise during
pendency of suit under which schedule was prepared for payment of outstanding
dues---Defendant however, allegedly failed to comply with the terms of
compromise---Such factual questions could not be determined in appeal against
order of attachment before judgment ---Such questions would be determined by Trial Court while deciding
application for setting aside ex parte decree---attachment before judgment would be valid to the
extent of bills pending with respondent (department); order of attachment made by Trial Court to that
extent was maintained---Rest of the bills pending with other departments were
not liable to attachment , for outstanding amount could be satisfied from the amount
of bills which stood attached with respondent (department)---Amount of such
bills, however, would be paid subject to decision of Trial Court on the
application for setting aside ex parte decree.
Citation Name : 1998 MLD 171
KARACHI-HIGH-COURT-SINDH
Side Appellant : RASHEEDA QUDRAT
Side Opponent : MUHAMMAD QUDRATULLAH KHAN
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O.XXXVIII, R. 5---attachment before judgment ---Essentials---Plaintiff while seeking relief of attachment before judgment defendants' properties, was required, prima facie to show that defendant
was intending to dispose of his properties with intention to obstruct or delay
execution of any, decree that might be passed against him---Plaintiff could not
satisfactorily establish factum of such intended disposal---Mere apprehension of
plaintiff would not attract such discretion of Court---Plaintiff was, thus, not
entitled to attachment before judgment .
Citation Name : 1997 SCMR 1199
SUPREME-COURT
Side Appellant : SPORTS WORLD
Side Opponent : ONYX GARMENTS (PVT.) LTD.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O.XXXVIII, R.
8---Constitution of Pakistan (1973), Art. 185(3)---Disposal of property in
question by defendant after institution of suit---Application for attachment of property before judgment ---Leave to appeal was granted to consider whether property
in question, which had already been disposed of by defendant after institution
of suit could still be subject-matter of attachment before judgment ---Person who had
acquired such property was directed not to dispose of property in
question---Supreme Court further directed that pendency of appeal (before Supreme Court) should not
hamper or delay trial of suit.
Citation Name : 1997 SCMR 309
SUPREME-COURT
Side Appellant : M.Y. MALIK & COMPANY
Side Opponent : SPLENDOURS INTERNATIONAL
Code of
Civil Procedure 1908 ----S. 47---Constitution of
Citation Name : 1997 CLC 2003
KARACHI-HIGH-COURT-SINDH
Side Appellant : ENCYLOPAEDIA BRITANNICA INC.
Side Opponent : PAK AMERICAN COMMERCIAL (PVT.) LTD.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O.XXXVIII, R.5---Objects,
purpose and import of---attachment before judgment ---While Court would have
inherent power to pass order of attachment of property before judgment , such order, however, could not -be passed, unless strong circumstances
were shown to exist warranting such order---Order of attachment coupled with sealing,
unlike injunction, was more akin to taking over property into custodia leges
through appointment of Receiver---Exercise of such power in relation to running
business, however, ought to be exercised sparingly and with
circumspection---Object of power conferred by O.XXXVIII,R. 5, C.P.C. was to
secure performance of decree likely to be passed and not to coerce its
performance before judgment ---Plaintiff did not show any material that defendant was disposing of
its stock-in-trade and properties with a view to defeat decree that might be
passed against him---Only material relied upon by plaintiff was report
published in newspaper which stood contradicted by defendants--Shifting of business
premises, however, could not be deemed to be akin to disposal of
stock-in-trade---Personal bond executed by Managing Director of defendant would
continue to be valid and effective till further orders of Court--Defendants
were directed to supply copy of new address of business to Court as well as to
plaintiff.
Citation Name : 1997 MLD 55
KARACHI-HIGH-COURT-SINDH
Side Appellant : ARROW TRADING COMPANY
Side Opponent : HYOSUNG CORPORATION
Civil
Procedure Code --Order XXI of C.P.C. Execution of Decrees and Orders ---OXXI,
R.47, OXXXVIII, R.5 & S.151---Suit for compensation for non-supply of
contracted goods---Plaintiff, during pendency of suit, seeking attachment before judgment on the plea of defendant being a foreigner owning no property in Pakistan---Entitlement---Property
sought to be attached was two letters of credit opened in favour of those
defendants who had no privity of contract---Plaintiff having himself referred
dispute to defendant (Commercial Arbitration Board) whereby he had agreed that
all disputes would be submitted for arbitration to specified defendant and that
Award by such defendant would be final and binding could not now turn back
during pendency of arbitration proceedings to invoke jurisdiction of Court to
claim attachment of those Letters of Credit
with which he had no concern---attachment before judgment could not be claimed
merely on plea that defendant was foreigner having no property in
Pakistan---Perusal of prayer clause in suit showed that plaintiff had not
sought permanent injunction and all that sought was decree for compensation and
costs of suit---Material placed on record would not entitle plaintiff to claim attachment of Letters of Credit opened
in the name of defendant with whom he had no privity of contract---No case was
made out for grant of application for attachment of defendant's property before judgment and the same was dismissed in circumstances.
Citation Name : 1996 MLD 809
KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD SALEH
Side Opponent : SALAHUDDIN
Civil
Procedure Code --Order XL of C.P.C. Appointment of Receivers ----O.XL, R.1---attachment before judgment of properties of defendant--Plaintiff's application was based on
supposition that defendant having gifted one of his properties to his wife (as
gift) was intending to dispose of his properties in order to delay or obstruct
execution of decree which might be passed against him---Plaintiff's such plea
was untenable for alienation of property by defendant well before plaintiff's suit was filed,
would not by itself amount to evidence of any intention on his part to dispose
of property for purpose of defeating any decree which might be passed against
him---No evidence was brought on record that any negotiations were being
carried on by defendant for sale of property in question, nor was there any
evidence of the alleged intention on the part of defendant to dispose of his
property--Application for attachment before judgment being without merit was
dismissed in circumstances.
Citation Name : 1995 SCMR 925
SUPREME-COURT
Side Appellant : ABDUL RAUF GHAURI
Side Opponent : KISHWAR SULTANA
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment OXXXVII, R.
3---Constitution of Pakistan (1973), Art. 185(3)---Suit for recovery of money
in summary jurisdiction---Defendant was allowed to appear and defend suit on
furnishing of Bank guarantee equal to the amount claimed in the
suit---Petitioner's revision against such order to the extent of Bank Guarantee
remained unsuccessful---Validity---Trial Court as per terms of agreement
between the parties was not justified in imposing condition of furnishing Bank
Guarantee as a term for grant of leave to defend suit--Defendant was prepared
to offer any solvent security to the satisfaction of Court equal to the amount
of claim in suit---Defence raised in application for grant of leave to defend
would justify setting aside order of High Court and that of Trial Court to the
extent it imposed condition of Bank Guarantee as a term for defending shit by
defendant filed against him---Order in question, was amended by Supreme Court
to the extent that leave to defend suit would be deemed to have been granted to
defendant on condition of furnishing any solvent security to the satisfaction
of Trial Court in circumstances.
Citation Name : 1995 MLD 1707
LAHORE-HIGH-COURT-LAHORE
Side Appellant : SPORTS WORLD
Side Opponent : LATEES FABRICS
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----O.XXXVIII, R.5---Application
for attachment before judgment --Essentials---Application for attachment before judgment should be supported by
affidavit---Plaintiffs did append affidavit with their application for attachment but defendants did not file
affidavit alongwith their written reply--Plea raised in application, thus,
remained uncontroverted and contents of affidavits of plaintiffs would be
deemed to be correct.---[Affidavit].
Citation Name : 1995 MLD 1707
LAHORE-HIGH-COURT-LAHORE
Side Appellant : SPORTS WORLD
Side Opponent : LATEES FABRICS
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----OXXXVII, R.2---High
Court (Lahore) - Rules and Orders, Vol. 1, Chap. 1-K, R.10---Commercial
case---Suit for recovery of money on account of supply of goods---Plaintiffs in
such suit was advised to move application alongwith, suit to treat their suit
as "commercial case" in terms of R.10, High Court (Lahore) Rules and
Orders, Vol. 1, Chap. 1-K---Such course would eliminate delay in adjudication
of commercial suit and appeals covered by them---Members of Bar were expected
to make maximum use of the provision.
Citation Name : 1994 MLD 1922 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD NAZIR
Side Opponent : NATIONAL BANK
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ----OXXXVII, Rr.3 & 4
and O.IX, R.13---Banking Companies (Recovery of Loans) Ordinance (XIX of 1979),
S.6---Suit for recovery of amount---Ex parte decree---Setting aside of---Defendant/borrower,
on filing suit for recovery of loan amount, was duly served, but neither he
appeared nor made application for grant of leave to appear and defend suit and
Court passed ex parte preliminary decree against
defendant/borrower---Defendant-borrower, in his application for setting aside
ex parte preliminary decree, nowhere made averments that he was not served or
that he was prevented from any circumstances beyond his control to appear before Court and make application
for grant of leave to appear and defend suit---Defendant/judgment -debtor who appeared at the
stage of passing of final decree, also did not raise any objection against
preliminary ex parte decree already passed against lam--..Application for
setting aside ex parte 'decree, filed by borrower, was not maintainable, in
circumstances.
Citation Name : 1992 CLC 1470 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NOOR MUHAMMAD
Side Opponent : ZAINAB BIBI
Civil
Procedure Code --Order XXI of C.P.C. Execution of Decrees and Orders ----OXXI,
R.54 & S. 115---Execution of decree---attachment of property--Objection to---Property of judgment -debtors, sought to be
attached in execution of decree, admittedly was purchased by objector exactly
on date on which executing Court passed order for attachment of property in dispute--Order of Court attaching property,
admittedly was proclaimed through beat of drum exactly one month after passing
of order attaching same, but it had not been mentioned in report of bailiff
that copy of order of executing Court was either affixed on a conspicuous part
of property in question or upon a conspicuous part of Court house---Statement
of objector in his examination-in-chief that he did not know about order of
Court regarding attachment of property, was not questioned in
cross-examination----Order of attachment thus could not be effective on very date it was passed, but
could be effective at the most on date when proclamation by beat of drum was
made which admittedly was after purchase of property -----Objector admittedly
having acquired rights of ownership and title in property in dispute before order passed by Executing
Court regarding attachment of property became effective, property could not have been
proceeded against and sold as property of judgment -debtor in execution of decree passed against
him---Findings of Courts below that objector- had acquired knowledge of passing
of order of attachment by Executing Court, were based on misreading and wrong
application of law and Courts below thus had committed material irregularity
and illegality in rejecting objection petition of objector.
Citation Name : 1992 CLC 1644 KARACHI-HIGH-COURT-SINDH
Side Appellant : TRAVELAGENTS ASSOCIATION OF
Side Opponent : SKYLINE (PVT.) TRAVELS,LTD.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment OXXXVIII, R.5---attachment before judgment ---Application for--attachment before judgment could not be lightly
ordered---Court had to satisfy itself before making such order that defendant was about to (cave country
or dispose of his property with a view to frustrate or delay execution of
decree that might be passed against him---Such satisfaction, however, could be
deduced from affidavits and from surrounding circumstances of case as
well--Court on being satisfied that defendants were intending to leave country
with intent to frustrate or delay execution .of any decree that might be passed
against them, directed them to furnish security of specified amount within a
period of one month, failing which attachment before judgment would be issued against
defendant establishment in respect of its assets and office premises and
passport of other defendants would be impounded.
Citation Name : 1992 CLC 1323 KARACHI-HIGH-COURT-SINDH
Side Appellant : ASHAD ALI SADIQ
Side Opponent : PAKISTAN INTERNATIONAL AIRLINES CORPORATION
Code of
Civil Procedure 1908 S.64 & OXXXVIII, R. 10 Order of attachment , its object To deal with
alienation of property after its attachment in execution of decree is the object of S.64, Civil
Procedure Code, 1908 while O.XXXVIII, R. 10 deals with alienations after attachment before judgment Provisions of S.64 and OXXXVIII, R.10, MI Procedure Code thus deal with
different kinds of situations Plea that general rule laid down is S.64, must be
read subject to the special rule laid down under OXXXVIII, R.10, Civil
Procedure Code, 1908 was not valid.
Citation Name : 1991 CLC 2071 KARACHI-HIGH-COURT-SINDH
Side Appellant : BALAGAMWALA OIL MILLS
Side Opponent : SHAKARCHI TRADING A.G.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment OXXXVIII, R. 5---attachment before judgment ---Application for--Application for attachment before judgment , could not be granted on
the only ground that defendant was a foreign company and it had no other assets
in Pakistan, except those in hands of other defendant, especially when
plaintiff was already aware that he was dealing with a Company which had no
assets in Pakistan.
Citation Name : 1990 CLC 1162 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD SAEED
Side Opponent : HANIFA BEGUM
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment OXXXVIII, R.5, OXL; R.1
& S.151---Six equal instalments of principal amount fixed by Court by
consent of parties---Defendant having failed to pay such instalments plaintiff
moved application under O.XL, R.1 and S.151 for appointment of receiver which
was dismissed by Additional Registrar directing plaintiff to move execution
application---Legality---Period of six months fixed by Court being not over
when application for appointment of receiver was made, decree had not become
executable thus Additional Registrar's order was not justified in directing
plaintiff to file execution application---Only a period of one month being left
to the decree becoming executable, appointment of receiver was not deemed
justifiable---Court instead ordered attachment of defendants' property under OXXXVIII, R.5 before decree because
executable---Plaintiff would be at liberty to move for sale of such property
when decree became executable in case instalments were not paid by defendant
within the fixed period.
Citation Name : 1989 MLD 955 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD MIAN
Side Opponent : JUDGE FAMILY COURT
West
Pakistan Family Court Act 1964 ---S.13--Constitution of Pakistan (1973),
Art.199--Execution of drcrec for maintenance--Warrant of arrest, challange
to--Executing Court made all efforts to recover' decretal amount before issuing warrants of arrest
against judgment debtor--Jugment-debtor
frustrated orders for attachment of his property, did not pay instalments and did not even
care to appear before the Court--judgment debtor by his conduct forced Court to issue warrants of
arrest against him--Court being competent to execute decree and recover
decretal amount as arrears of land revenue, held, could issue warrants of
arrest against judgment -debtor-Refusal of judgment -debtor to pay decretal amount had disentitled him to any
assistance from High Court in exercise of its constitutional jurisdiction.
Citation Name : 1989 MLD 2027 KARACHI-HIGH-COURT-SINDH
Side Appellant : ALLIED INDUSTRIES HUB (PVT.) LTD.
Side Opponent :
Civil
Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory
Orders ---O.XXXVIII, R. 5, O:XXXIX, Rr. 1 & 2 and S. 151--Negotiable
Instruments Act (XXVI of 1881), S.5--Irrevocable letter of credit--attachment before judgment --Plaintiffs plea in his application for attachment before judgment was that if the defendant
was allowed to take away the money secured to him, by letter of credit, it
could not effectively enforce its claims arising from breach of contract as
defendant had no assets in Pakistan, therefore, any decree that might be
obtained could not be executed-- Allegation that defendant had no assets in
Pakistan was made in the pleadings which had no relevance to the
case-Irrevocable letter of credit had a definite implication .as that was a
mechanism of great importance in international trade-- Any interference with
that mechanism was bound'to have serious repercussion on the international
trade of the country--Held, that except under very exceptional circumstances
the Court should not interfere with that mechanism--Application .for interim
injunction, and attachment rejected.
Citation Name : 1989 MLD 2027 KARACHI-HIGH-COURT-SINDH
Side Appellant : ALLIED INDUSTRIES HUB (PVT.) LTD.
Side Opponent :
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O.XXXVIII, R. 5,
O:XXXIX, Rr. 1 & 2 and S. 151--Negotiable Instruments Act (XXVI of 1881),
S.5--Irrevocable letter of credit--attachment before judgment --Plaintiffs plea in his
application for attachment before judgment was that if the defendant
was allowed to take away the money secured to him, by letter of credit, it
could not effectively enforce its claims arising from breach of contract as
defendant had no assets in Pakistan, therefore, any decree that might be
obtained could not be executed-- Allegation that defendant had no assets in
Pakistan was made in the pleadings which had no relevance to the
case-Irrevocable letter of credit had a definite implication .as that was a
mechanism of great importance in international trade-- Any interference with
that mechanism was bound'to have serious repercussion on the international
trade of the country--Held, that except under very exceptional circumstances
the Court should not interfere with that mechanism--Application .for interim
injunction, and attachment rejected.
Citation Name : 1989 MLD 2027 KARACHI-HIGH-COURT-SINDH
Side Appellant : ALLIED INDUSTRIES HUB (PVT.) LTD.
Side Opponent :
Negotiable
Instruments Act 1881 ---O.XXXVIII, R. 5, O:XXXIX, Rr. 1 & 2 and S.
151--Negotiable Instruments Act (XXVI of 1881), S.5--Irrevocable letter of
credit--attachment before judgment --Plaintiffs plea in his application for attachment before judgment was that if the defendant
was allowed to take away the money secured to him, by letter of credit, it
could not effectively enforce its claims arising from breach of contract as
defendant had no assets in Pakistan, therefore, any decree that might be
obtained could not be executed-- Allegation that defendant had no assets in
Pakistan was made in the pleadings which had no relevance to the
case-Irrevocable letter of credit had a definite implication .as that was a
mechanism of great importance in international trade-- Any interference with
that mechanism was bound'to have serious repercussion on the international
trade of the country--Held, that except under very exceptional circumstances
the Court should not interfere with that mechanism--Application .for interim
injunction, and attachment rejected.
Citation Name : 1988 MLD 290 KARACHI-HIGH-COURT-SINDH
Side Appellant : ASGHAR AL1
Side Opponent : ASGHAR ALI
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O. XXXVIII, R.
5--Specific Relief Act (I of 1877), S. 10--Non-filing of written
statement--Effect--Suit for recovery of machine--Plaintiff filing suit against
defendant to recover machine alongwith application for attachment of same before judgment , alleging that he had entrusted machine to defendant as
`Amanat' against receipt--Defendant contradicting alleged receipt in counter
affidavit without filing written statement--High Court setting aside judgment s and decrees of both
Courts below remanded case to Trial Court, directing that defendant be allowed
to, file proper written statement with reference to contents of plaint and
thereafter to frame issues and to record evidence.
Citation Name : 1987 CLC 124 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAUKAT ALI
Side Opponent : SULTAN AHMAD
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O.XXXVIII, R. 5, O.
XXI, R. 58 & O. XLIII, R. 1(q)--attachment before judgment --Objections to attachment of property in execution of
decree--Locus standi to object--Objectors/appellants admitting in memo. of
appeal that property in their occupation and purchased by them was different
from property which decree-holder had applied for attachment during pendency of his suit--Appeal being against execution
of decree wherein appellants had no right or interest as per their admission,
such appellants, held, would have no locus standi to agitate against
proceedings taken by executing Court--Bona fide of appellants would be in
serious doubt wherein memo. of appeal such appellant had urged untenable
objections against decree itself which would be indicative of fact that
objectors to execution were inducted into proceeding for benefit of judgment -debtor--Where proceedings
launched by objectors/ appellants appeared to be dishonestly motivated, such
appeal being without substance and frivolous would be dismissed in limine.
Citation Name : 1987 CLC 2282 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL AZIZ TAYEB
Side Opponent : JAWAID GARMENTS INDUSTRIES
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O.XXXVIII, R. 5, S. 151
& 0. XLVIII, R.1--Sind Rented Premises Ordinance (XVII of 1979, S.
15--Order for attachment of movable property granted by High court in original civil
jurisdiction- -Movable property on site i.e. machinery etc. was to remain in
possession of defendant who, however, could not alienate the same or create
charge thereon or remove same from premises- -Plaintiff subsequently getting
ejectment order against defendant from the Court of Rent Controller which
became final due to non-filing of appeal by such defendant-Execution
proceedings pending before Rent Controller- -Plaintiff making application before High Court under S. 151,
C.P.C. for clarification of its order of attachment -- High Court clarifying ealier order and directing Nazir
of Court to remove articles lying on premises on expenses of plaintiff so that
plaintiff could reap fruit of his success of his ejectment petition by getting
possession of vacant site.
Citation Name : 1987 CLC 1898 KARACHI-HIGH-COURT-SINDH
Side Appellant : HABIBA KASSIM
Side Opponent : HABIB BANK LIMITED
Civil
Procedure Code --Order VII of C.P.C. Plaint O. VII, R. 11 & O. XXI, Rr. 58,
60 & 62--Objection to attachment , dismissal of--Suit for declaration about ownership of
attached property, whether maintainable--Where objection to attachment of property was dismissed,
remedy against such dismissal, held, would be to file appeal against such
dismissal and not a civil suit--Where a suit had been filed by judgment -debtor against attachment of property, remedy
available to plaintiff would lie under O. XXI, R. 62, C.P.C. which bars a suit
filed for establishing right, title or interest of the claimant in such
property--Legality of attachment had to be decided by executing Court--Where plaintiff's
objection was dismissed as premature and for want of prima facie evidence of
title to the goods, such plaintiffs could repeat their objection before executing Court after attachment was complete--Suit to
challenge attachment of property being barred under O.XXI, R.62, C.P.C. plaint
was rejected.
Citation Name : 1987 CLC 1784 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD AMIN
Side Opponent : MUHAMMAD MOOSA
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O XXXVIII, R. 5 &
O XXXIX Rr. 1 & 2--Specific Relief Act (I of 1877), S. 12--Suit for
specific performance--Applications for attachment and injunction--Plaintiff claiming that land in dispute,
belonging to defendants 1 and 2 was to be sold to him by them under an
agreement of sale, for which they were paid part consideration, through
defendant No.3 who was their attorney under registered general power of
attorney but said land had been sold to defendant No.5 by a registered deed
which was a collusive and fraudulent transaction depriving plaintiff of his
rights--Defendants 1 & 2 on the other hand contending that agreement of
sale with plaintiff as well as receipt about consideration was executed by
defendant No.3, when his power of attorney had already been revoked and he had
no authority to enter into an agreement with plaintiff on their behalf and that
agreement in favour of defendant 5 was made with active participation of
defendant No.3--Held, participation of defendant No.3 in deal with defendant
No.5 prima facie established that defendant No.2, in collusion with defendant
No.3, arranged sale to defendant No.5 because if power of attorney of defendant
No.3 had been cancelled in real sense then there was no need to seek his
participation in agreement with defendant No.5--Plaintiff though making out a
prima facie case yet he failed to satisfy ingredients of O. XXXVIII, R. 5,
C.P.C. for purpose of attaching of property--Since both parties i.e. plaintiff
as well as defendant No.5, were claiming same land and had paid part of sale
consideration to defendants 1, 2 and 3, maintenance of status quo was ordered.
Citation Name : 1987 CLC 1734 KARACHI-HIGH-COURT-SINDH
Side Appellant : PRINT PACK (PVT.) LTD.
Side Opponent : BALUMA DATE PACKING LTD.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O. XXXVIII, R. 5--attachment before judgment --Application for-Power conferred on Court under O. XXXVIII, R. 5,
C.P.C. to call upon defendant to furnish security for production of property
involved in decree, was to be exercised sparingly with due caution and not as
matter of course--Intention of defendant to defeat or delay execution of decree
must be established first--Plaintiff apprehended that due to serious financial
difficulties defendant firm had stopped functioning and that defendant did not
own other property sufficient to satisfy decree--Defendant on other hand by
producing authentic documentary evidence proved to satisfaction of Court that
they owned other properties from which decree against them could be
satisfactorily satisfied--Circumstances warranting passing of order in favour
of plaintiff having not been established, application of plaintiff for attachment before judgment merely based on presumption and apprehension was dismissed.
Citation Name : 1987 CLC 1002 KARACHI-HIGH-COURT-SINDH
Side Appellant : HABIB BANK LTD.
Side Opponent : CARGO DESPATCH CO. LTD.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O. V R.20 & O.
XXXVIII, R. 2--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979),
S.6--Banking Companies (Recovery of Loans) Rules 1980, R.8--Limitation Act (IX
of 1908), Art.159--Suit for recovery of loan--Service of summons through
publication is not as effective as service through bailiff or by registered
post--Mere publication of summons under R.8 of Banking Companies (Recovery of
Loans) Rules 1980, held, would not be proper service unless defendant was
proved to be avoiding service of summons issued through bailiff and registered
post or whereabouts of defendants were not known or where service could not be
effected in ordinary manner.
Citation Name : 1987 CLC 984 KARACHI-HIGH-COURT-SINDH
Side Appellant : ASIA STEEL INDUSTRIES AID LTD.
Side Opponent : IFTIKHAR & CO. LTD.
Civil
Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory
Orders ---O. XXXVIII, R.5 and O. XXXIX Rr.l & 2--attachment before judgment --Application for attachment of payments and for injunction-Conditions required to be
satisfied by plaintiff before an order for attachment before judgment of properties of defendants
could be passed not satisfied by plaintiff--Pleadings not showing prima facie
that one defendant with intent to obstruct or delay execution of decree that
may be passed against him in suit was about to dispose of whole or any part of
its property or was about to remove whole or any part of its property from
local limit of jurisdiction of Court--Allegation that said defendant was
repatriating any amount outside Pakistan with intent to obstruct or delay
execution of decree that may be passed against him in suit prima facie not
established--Payments of bills were being received by said defendant from
another defendant under terms of turnkey contract between them--Plaintiff yet
to establish his claim for damages through evidence--Prima facie no suspicion
attached to payments being made by the other defendant to the said
defendant--Held, no case was made out by plaintiff either for attachment of payments or for grant of
temporary injunction--Application of plaintiff dismissed.
Citation Name : 1987 CLC 984 KARACHI-HIGH-COURT-SINDH
Side Appellant : ASIA STEEL INDUSTRIES AID LTD.
Side Opponent : IFTIKHAR & CO. LTD.
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O. XXXVIII, R.5 and O.
XXXIX Rr.l & 2--attachment before judgment --Application for attachment of payments and for
injunction-Conditions required to be satisfied by plaintiff before an order for attachment before judgment of properties of defendants could be passed not satisfied by
plaintiff--Pleadings not showing prima facie that one defendant with intent to
obstruct or delay execution of decree that may be passed against him in suit
was about to dispose of whole or any part of its property or was about to
remove whole or any part of its property from local limit of jurisdiction of
Court--Allegation that said defendant was repatriating any amount outside
Pakistan with intent to obstruct or delay execution of decree that may be
passed against him in suit prima facie not established--Payments of bills were
being received by said defendant from another defendant under terms of turnkey
contract between them--Plaintiff yet to establish his claim for damages through
evidence--Prima facie no suspicion attached to payments being made by the other
defendant to the said defendant--Held, no case was made out by plaintiff either
for attachment of payments or for grant of
temporary injunction--Application of plaintiff dismissed.
Citation Name : 1987 MLD 2577 KARACHI-HIGH-COURT-SINDH
Side Appellant : Maulana MUSHTAQ AHMA
Side Opponent : MUBARAK AHMED
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---O.XXXVIII, R.6--attachment before judgment --Simple money suit of applicant-plaintiff decreed in his favour--Fact
that immovable property was attached pending judgment in a simple money suit, held, could not be a ground for
delivery of its possession to applicant plaintiff upon a decree having been
passed in his favour-Applicant plaintiff could only proceed for realization of
amount against said property and there was no question of delivery of its
possession to him in execution of decree.
Citation Name : 1987 MLD 2341 KARACHI-HIGH-COURT-SINDH
Side Appellant : HABIB BANK LIMITED
Side Opponent : HOTEL METROPOLE LIMITED
Civil
Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory
Orders ---O.XXXVIII, R.5 & O.XXXIX, Rr.1, 2 & 4 read with S.151--Suit
for recovery of loan advanced to defendants against mortgage of their
property--Defendant, during pendency of suit, entering into an agreement of
sale for disposing of their other properties-- Plaintiffs thereafter filing an
application under O.XXXVIII, R.5 and O.XXXIX, Rr.1 & 2 read with S.151,
C.P.C. inter alia prayiag for attachment before judgment of said properties as
according to plaintiffs sale was being effected by defendants with a view to
obstruct and delay execution of decree which might be passed in suit--Ad
interim order accordingly passed in favour of plaintiff by issuance of
injunction restraining defendants from alienating said properties--Defendants
making application under O.XXXIX, R.4 read with S.151, C.P.C. for vacation of
ad interim order on ground that the amount of money advanced as loan stood
fully secured by mortgage of building in favour of plaintiffs and secondly,
that plaintiffs had failed to establish that sale of said properties was with
intention to obstruct or delay execution of decree which was the requirement of
O.XXXVIII, R.5, C.P.C.--Plaintiffs, in opposing defendant's application,
contending that security furnished by defendants had become insufficient and
defendants were consciously trying to obstruct plaintiffs--Loan although
secured by a mortgage but property mortgaged with plaintiffs, being an old
building and mostly occupied by tenants had not appreciated in value--Loan
granted to defendants in 1978 initially was Rs.34,90,369.42 but due to
accumulation of interest thereon outstanding amount had reached the figure of
Rs.1,45,22,722.17 and it was hard to accept that security of property now
sufficiently covered the amount in suit--Burden to establish mala fide
intention on part of defendants was undeniably on plaintiffs for getting an
order under O.XXXVIII, R.5, C.P.C. but jurisdiction of Court under S.151,
C.P.C. had also been invoked-- Intention of defendant can always be inferred
from circumstances of the case and since security furnished by defendants
failed to sufficiently cover amount of money claimed in suit, interest of
plaintiffs needed to be safeguarded--Ends of justice, held, would be best
served if interim order is modified to extent that the defendants may be
directed not to complete the sale transaction pending final disposal of the
suit--Order accordingly.
Citation Name : 1986 MLD 1356 KARACHI-HIGH-COURT-SINDH
Side Appellant : UZIN EXPORT IMPORT ENTERPRISES FOR FOREIGN TRADE
Side Opponent : MESSRS ASIA STEEL INDUSTRIAL AIDS LTD.
Civil
Procedure Code --Order XLI of C.P.C. Appeals from Original Decrees ---O.XL,
R.1--attachment before judgment --Justification for--Where prayer in suit was for a decree jointly and
severally against all defendants, interim order of injunction., appointment of
receiver or demanding security from one of defendants, held, would not be
sustainable in circumstances.
Citation Name : 1986 MLD 1356 KARACHI-HIGH-COURT-SINDH
Side Appellant : UZIN EXPORT IMPORT ENTERPRISES FOR FOREIGN TRADE
Side Opponent : MESSRS ASIA STEEL INDUSTRIAL AIDS LTD.
Civil Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment ---S. 151 & O.XXXVIII, R.5--attachment before judgment --Object and purpose of--Purpose of such attachment being to prevent attempt on part of defendant to obstruct or delay execution of prospective decree which could be passed against him, question of security, held, could not be divested from such attachment --Where there is specific-provision provision for dealing with any matter, inherent jurisdiction could not be invoked.
Citation Name : 1985 MLD 555 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAEEDA KHANUM
Side Opponent : STATE LIFE INSURANCE
CORPORATION OF
Code of Civil Procedure 1908 ---Ss.115,50 and O.XXI, r.22--Execution of decree--judgment -debtor, dying before issuance of warrants of attachment --Such warrants issued against "legal representatives" of deceased judgment -debtor, without notice and without determination of factum of such persons being in fact legal representatives--Such orders of attachment , held, were passed by executing Court without applying mind and mechanically—Warrants of attachment could not be issued against petitioners without first judicially determining question whether petitioners were legal representatives of deceased--Order of attachment set aside in circumstances.
Citation Name : 1985 CLC 38 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD BASBIR KHAN
Side Opponent : STEELFABS LTD.,
Civil
Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory
Orders O.XXXIX, rr.1 & 2, O.XXXVIII, r.5 and O.XXI, r.46--Injunction-attachment before judgment --Certain amount remaining due against defendant company which having
been taken over by new Management, having rift with previous
Management--Plaintiff apprehending that due to rift defendants may disappear
after realizing assets of company, seeking injunction for restraining defendant
company from receiving, realising and disposing of their assets in general and attachment of their property before judgment --No reference as to previous conduct of defendants to
dispose of property immediately before filing suit shown nor allegation of alienation of property
during pendency of suit with intention of defeating decree which may be passed
in his favour, substantiated--Mere referring to dispute or rift between
previous Management and present Management, held, could hardly furnish or
substantiate such allegations--Applications for temporary injunction and attachment before judgment dismissed.--[attachment ].
Citation Name : 1984 CLC 2366 KARACHI-HIGH-COURT-SINDH
Side Appellant : NISHAT TALKIES
Side Opponent : ZERAY ENTERPRISES LTD.
O.
XXXVIII, r. 5-attachment before judgment - Plaintiffs making
application for attachment before judgment of amount lying with A
payable to defendant-Amount of loan not disputed by defendant-Defendant possessing
no other property within jurisdiction of Court from which claim of plaintiff
could be satisfied in event of decree in their favour-Prohibitory order issued
earlier against A made absolute with directions that order would stand
discharged if bank guarantee to suit amount was furnished by defendant within
one month of order.--[attachment ].
Citation Name : 1984 MLD 547 KARACHI-HIGH-COURT-SINDH
Side Appellant : COMMERCE BANK LTD.
Side Opponent : MUHAMMAD AKHTAR
Code of
Civil Procedure 1908 ---S. 60--attachment --Properties pledged as security for repayment of
loan--Title and interest transferred subsequently by way of family settlement
without intimation to creditor--No declaration of gift nor registered deed or
evidence of transfer available--Attempt by defendant to transfer property was,
held, with intention to delay and defeat decree that may be passed against
them--attachment of property' before judgment ordered.
Citation Name : 1976 PLD 298 LAHORE-HIGH-COURT-LAHORE
Side Appellant : FAQIR
Side Opponent : MUHAMMAD HAYAT
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment 0. XXXVIII, rr. 5(1)
& 6(1) - attachment before judgment -Rule 6(1) comes into
play only after issue of notice under r. 5(1)Order for attachment before judgment - Cannot be passed unless defendant either fails to furnish security or
to show cause under r. 5.
Citation Name : 1976 PLD 1469 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAHUR ILAHI N. B. P.
Side Opponent : ZAHUR ILAHI N. B. P.
Code of
Civil Procedure 1908 ----Ss. 47 & 151 and O. XXI, r. 66-Execution of
decree-attachment , objection to-Time to
prove fitness and solvency of surety Consent order by executing Court leaving
no objection in field regarding share certificates of sureties to be produced
to show sureties solvency Such order, held, created a right in judgment -debtors favour qua
acceptance of sureties and Court could not deprive judgment -debtors of such right unless itself satisfied as to delay
in production of certificates being undue-Time requested for production of
share certificates on ground of judgment -debtor running from place to place qua his arrests, bail before arrest etc. and sureties
being not available for that reason-Executing Court without realising judgment -debtors difficulties
giving an extension of 7 days only as a last opportunity without assigning any
reason-Order of executing Court, held, liable to be set aside on such ground
alone-Eventual order disallowing further time on ground of decree-holders
counsel having "objected" to it- Executing Court not saying a word
about his own impressions, reasoning or judgment about objection-Executing Court, held, lost sight of his
own functions and directly or indirectly delegated his own power to decree-holders
counsel-Refusal to adjourn case, in circum stances suffered from serious defect
of judgment as also of
jurisdiction-Further orders not affording opportunity to judgment -debtor to clarify form of
security bonds and not permitting production of new sureties as new sureties
could not be produced then and there also suffering from same infirmities as in
case of earlier refusal to give time, entire superstructure built upon initial
order, held, falls and cannot be upheld on basis of any reasoning.
Citation Name : 1969 PLD 349 SUPREME-COURT
Side Appellant : MESSRS SHIRKAT-I-AHBAB
Side Opponent : NATIONAL BANK OF
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O. XXXVIII, rr. 5, 6
& 9 and O. XLIII, r. 1(q)---attachment before judgment ---Court, on being moved
for attachment , ordering "Court is
satisfied that conditions attracting applicability of O. XXXVIII, r. S exist,
conditional attachment of goods ordered with notice to
respondents"-Subsequently, on respondent showing cause, Court withdrawing
order of attachment holding "there was no
risk of non-satisfaction of the decree even if the suit
succeeds"---Withdrawal of attachment held to be under r. 6(2) and not under r. 9 of O. XXXVIII
and as such appealable under O. XLIII, r. 1(q).
Citation Name : 1963 PLD 269 KARACHI-HIGH-COURT-SINDH
Side Appellant : KURBAN ALI M. MERCHANT
Side Opponent : MST. PURVIZ
Civil
Procedure Code --Order XXI of C.P.C. Execution of Decrees and Orders O. XXI, r.
46 and O. XXXVIII, r. 5-Garnishee-Amount deposited by defendant with Karachi
Stock Exchange Ltd. for carrying on business of stock broker-Not property of
garnishee-Mere floating security-Not assuming character of fixed or specific
security-Garnishee cannot refuse to pay money in Court and has no right to
raise objection against order of attachment before judgment.
Citation Name : 1962 PLD 119 SUPREME-COURT
Side Appellant : MOHIUDDIN MOLLA
Side Opponent : (1) THE
Civil
Procedure Code --Order XXI of C.P.C. Execution of Decrees and Orders -O. XXI, r
94--"Right, title and interest of judgment -debtor"-Auction-purchaser bound by judgment -debtor's
"agreement" to sell to third person entered into before attachment , auction purchaser having notice of such
agreement-"Covenants running with land" - Transfer of Property Act
(IV of 1882), Ss. 8, 40-Specific Relief Act (I of 1877), S. 27-Trusts Act (II
of 1882), S. 91.
Citation Name : 1956 PLD 161 SINDH-CHIEF-COURT
Side Appellant : HAJI DAULATBAI
Side Opponent : HAJI ABDUL KHALIK NIJAT, IRANI
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O. XXXVIII, r. 5attachment before judgment -Applicant, to succeed, should prove a prima facie case and the
requisite intention, on part of defendant in terms of r. 5----Courts
jurisdiction to entertain suit doubtful-Prima facie case not made out.
Citation Name : 1955 PLD 330 SINDH-CHIEF-COURT
Side Appellant : ABDULLA
Side Opponent : MUHAMMAD MOIZUDDIN
Civil
Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O, XXXV111 r. 5 Property
attachable is that of defendant not of plaintiff in the hands o f defendant.
Citation Name : 1954 PLD 35 JUDICIAL-COMMISSIONER-COURT-BALOCHISTAN
Side Appellant : ISRAR GUL
Side Opponent : ABDUL JALIL DAIRYWALA
Civil Procedure Code --Order XXXVIII of C.P.C. Arrest and attachment before judgment O. XXXVIII, r.3 Surety producing defendant-judgment -debtor in Court and at same time praying for discharge from his bond-Court bound to discharge and not empowered to keep bond in force till defendant was able to find fresh security-Improper to forfeit bond surety eventually produces defendant though the latter had defaulted previously.
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