Monday, 16 September 2013

Can the property be attached during trial?

PLJ 2011 Quetta 105 (DB)
Present: Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ.
MUHAMMAD IMRAN TEHSEEN--Petitioner
versus
EJAZ LODHI and others--Respondents
C.R. Nos. 282 and 298 of 2006, decided on 7.5.2011.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVIII, R. 9--S. 115--Civil revision--Order of attachment of property or in alternate furnishing of security bank guarantee--Suit for recovery was filed by plaintiffs against respondents--During course of trial, plaintiffs filed an application that property belong to respondent be ordered to be attached--Application was allowed--Challenge to--Order made for attachment of property--Validity--Whereby suit stood dismissed, it was incumbent upon trial Court to make a specific order for withdrawal of order made for attachment of the property even if Court failed to make an order, as required under Rules 9, even then it come to an end, as soon as the suit was dismissed--Fact of appeal, against such order of dismissal of the suit, did not change its effect--Pendency of an appeal against a final order will of no effect--If appellate Court arrived to findings and thereby set aside the order of trial Court, thereby remand the case to trial Court for further proceedings, even then order of attachment or furnishing surety did not revive--Petitions were dismissed.            [P. 107] A & B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. I, R. 10--Order of attachment of property--Challenged through revision petition--Application was filed by defendant before trial Court for deletion of his name from the suit to be unnecessarily impleaded--Validity--Where appeal was pending for relief--Deletion from list of defendants claiming himself to be joined un-necessarily--Appellate Court while hearing the appeal can easily adhere to request so made. [P. 107] C
Mr. Adnan Ejaz, Advocate for Petitioner.
Mr. Rauf Hashmi, Advocate for Respondents.
Date of hearing: 2.5.2011.
Judgment
Mrs. Syeda Tahira Safdar, J.--The petitioner Muhammad Imran Tahseen, being aggrieved of orders dated 26.09.2006, and 13.8.2008, of Senior Civil Judge-II, Quetta, filed above titled petitions, seeking revision of the orders. During course of the proceedings it was disclosed that, the suit filed by Respondents No. 1 & 2 has been decided by the trial Court through order dated 29.8.2009, while appeal filed against the order is also pending before this Court. It is contended by the learned counsel for Respondents No. 1 & 2 that both the petitions have become infructuous, as the orders assailed in present petitions have been made in respect of the miscellaneous applications. While replying the contention, the learned counsel for the appellant, stated that the main suit has not been decided on merits, rather it has been dismissed under provisions of Order XVII, Rule 3, CPC. Further, the appeal whereof is pending before this Court, thus in the circumstances, as the matter has not yet been finally decided, and there is a possibility that the suit may be revived or restored. It was his argument, that he may be allowed to revive his petitions, if an order is made whereby, on acceptance of the appeal, the suit be revived or restored, because at said stage there will be no remedy available to him. It was further contended by the learned counsel for the petitioner, that if his request be allowed, he will not press the instant petitions. The learned counsel for the respondent though not objected the request, but subject to all just exceptions.
According to the record, a suit for recovery of an amount of Rs.41,50,000/- was filed by the Plaintiffs/Respondents No. 1 & 2 against the petitioner and Respondents No. 3 & 4/defendants. During course of trial the Plaintiffs/Respondents No. 1 & 2 filed an application with prayer, that the property belong to the defendants/respondents be ordered to be attached or in alternate surety be obtained from them. This application was allowed by the trial Court through order dated 26.9.2006, whereby it was ordered:
"-----I am inclined to attach the property of the defendants' residence till the disposal of the suit or by other way the defendants are directed to submit Bank Guarantee of Rs. 41,50,000/-,-------"
This order is assailed through Revision Petition No. 282 of 2006. Meanwhile another application was filed by the Petitioner/Defendant No. 3 before the trial Court under provisions of Order-I Rule-10 CPC, for deletion of his name from the suit, claiming himself to be unnecessarily impleaded. The trial Court through order dated 13.8.2008 rejected the application and proceeded with the case. Being aggrieved of the order the petitioner filed Revision Petition No. 298 of 2008.
As far as order of attachment of property or in alternate furnishing of security/Bank Guarantee is concerned, this order i.e. dated 26.9.2006 was made by the trial Court while exercising powers under Rule-5 of Order-XXXVIII CPC, which states as under:--
"5. Where a defendant may be called upon to furnish security for production of property.--(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him--
(a)        is about to dispose of the whole or any part of his property, or
(b)        is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,
the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show-cause why he should not furnish security,
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the properly so specified."
The remaining Rules of the Order deals with the mode of attachments and the other proceedings made thereto. As the order of attachment made by the trial Court is an attachment before judgment, therefore, what would be its fate on final decision of the suit, is the question in hand. Rule-9 of the Order-XXXVIII CPC is relevant in the present case, which states as under:
"9. Removal of attachment when security furnished or suit dismissed.--Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed."
Keeping in view the mentioned Rule, while making an order, whereby the suit stand dismissed, it is incumbent upon the trial Court to make a specific order for withdrawal of the order made for attachment of the property. But even if the Court failed to make an order, as required under the Rule, even then it come to an end, as soon as the suit is dismissed. Further, the fact of filing of the appeal, against such order of dismissal of the suit, does not change its effect, as the attachment so made before the judgment, does not automatically revived, even if the decision of dismissal of the suit is reversed by the appellate Court. Thus in the circumstances, pendency of an appeal against a final order will be of no effects. Further, in view of Rule-9 of Order-XXXVIII CPC, the order of attachment made on 26.9.2006 has already stand withdrawn, as soon as the judgment was announced by the trial Court, whereby the suit was dismissed. As far as this proposition is concerned that if the appellate Court arrived to the findings and thereby set aside the order/decree of the trial Court, thereby remand the case to the trial Court for further proceedings, even then the order of attachment or furnishing surety does not revive, as discussed hereinabove. Rather, in the circumstances the party interested in order of attachment, has to make fresh request for the purpose, to obtain a fresh order in same respect.
As far as order dated 13.8.2008, which is questioned in Revision Petition No. 298/2008 is concerned, the petitioner may have approached the Court, where the appeal filed by Respondents No. 1 & 2 is pending, for the relief prayed. As he only sought his deletion from the list of the defendants claiming himself to be joined unnecessarily. The appellate Court while hearing the appeal can easily adhere to the request so made.
In view of above discussion, the request so made by the learned counsel for the petitioner, cannot be allowed. Both the revision petitions have been filed by the petitioner, assailing therein the interim orders, remain no more maintainable, after decision of the suit by the trial Court. The Revision Petitions No. 282 of 2006 and 298 of 2008 are dismissed being not maintainable.
These are the reasons of our short order made on 2.5.2011.
(R.A.)  Petitions dismissed.

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