2011 Y L R 2407
[Qeutta]
Before Mrs. Syeda T ahira Safdar and Muhammad Noor Meskanzai, JJ
MUHAMMAD IMRAN TEHSEEN ---Petitioner
Versus
EJAZ LODHI and 3 others ---Respondents
Civil Revision Nos.282 and 298 of 2006 decided on 7th May, 2011.
Civil Procedure Code (V of 1908) ---
----O. XXXVIII, R . 9---Attachment before judgment ---Dismissal of suit ---Pendency of
appeal ---Effect ---Plaintiff filed suit for recovery of money and during its pendency property
of defendants was attached before judgment but during pendency of petition before High
Court, t he Trial Court dismissed the suit ---Validity ---While making an order, whereby the
suit stood dismissed, it was incumbent upon Trial Court to make a specific order for
withdrawal of the order made for attachment of the property ---Even if the Trial Court fai led
to make order as required under O. XXXVIII, Rule 9 C.P.C., even then that order had come
to an end, as soon as the suit was dismissed ---Fact of filing of appeal against such order of
dismissal of suit did not change its effect, as attachment so made be fore the judgment did not
automatically revive, even if the decision of dismissal of suit was reversed by appellate Court
thus pendency of appeal against final order was of no effect ---Order of attachment stood
withdrawn as soon as the judgment was announc ed by Trial Court, whereby the suit was
dismissed ---If appellate Court would arrive to the findings and thereby set aside the order
decree of Trial Court and remanded the case to Trial Court for further proceedings, even then
the order of attachment or fur nishing of surety would not revive ---Party interested in order of
attachment, after remand of case to Trial Court, had to make a fresh request for the purpose to
obtain a fresh order in same respect ---Revision was dismissed in circumstances.
Adnan Ejaz for Petitioner.
Rauf Hashmi for Respondents.
Date of hearing: 2nd May, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J.---The petitioner Muhammad Imran Tahseen, being
aggrieved of orders dated 26 -9-2006, and 13 -8-2008, of Senior Civil Judge -II, Que tta, filed
above titled petitions, seeking revision of the orders. During course of the proceedings it was
disclosed that, the suit filed by respondents Nos.1 and 2 has, been decided by the trial Court
through order dated 29 -8-2009, while appeal filed agai nst the order is also pending before
this court. It is contended by the learned counsel for respondents Nos.1 and 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, C.P.C. 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 wher eby, 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 ins tant 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 Nos.1 and 2 agai nst the petitioner and respondents Nos.3 and
4/defendants. During course of trial the plaintiffs/ respondents Nos.1 and 2 filed an
application with prayer, that the property belong to the defendants/respondents be ordered to
be attached or in alternate sur ety 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 defe ndants 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 Orde r I Rule 10, C.P.C., 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 fil ed
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 X XXVIII, C.P.C., 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 o bstruct 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 th e estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any
portion of the property so specified."
The remaining Rules of the Order deals with the mode of attachments and the other
proceedings ma de 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, C.P.C. is relevant in the present case,
which states asunder: --
"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 withdra wal 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 came 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 revive, even if
the decision of dismissal of the suit is reversed by the appellate court. Thus in the
circumstances, pendency of an ap peal against a final order will be of no effect. Further, in
view of Rule 9 of Order XXXVIII, C.P.C., 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 dism issed. 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 attachm ent 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 of 2008 is
concerned, the petitioner may have approached the court, where the appeal filed by
respondents Nos.1 and 2 is pending, for the relief prayed. As he only sought his deletion from
the list of th e 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
maintain -able.
These are the reasons of our short order made on 2 -5-2011.
M.H./41/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.