1998 PLP 740 (CLC)

Sardar Muhammad Aslam for Respondent No.

1. Syed Asghar Hussain Sabzwari for Respondent No.2. Date of hearing: 19th June, 1997. The appellant/defendant entered into an agreement with respondent No.l i.e., M/s. Riaz & Sons (plaintiff) for supply and delivery of Diesel Generating Set (D.G. Set) to be installed in the Prime Minister Secretariat, Islamabad, which was under construction at the relevant time. The original agreement was later on amended and some more clauses were added to it. A civil suit was filed for the recovery of US $ 5.99,631 and Rs.48,75,173 by the respondent/plaintiff against the appellant/defendant. An application for temporary injunction was moved during the pendency of the suit which was dismissed, whereupon a review petition was filed. While the same was pending, the parties reached a compromise whereby Rs.10 lac were given to the plaintiff/respondent by the appellant/defendant at the time of the verification of compromise before the Court. Under the aforesaid agreement, the delivery of the D.G. Set and payment of remaining amount was to be made in accordance with the contract but the same was not done, which further led the parties to litigation as the respondent/plaintiff had moved a petition for attachment of the bills of the appellant/defendant pending in different departments including C.D.A., Islamabad. The remaining amount of Rs.67 lac was to be paid by the appellant/defendant to the respondent/plaintiff for which the learned trial Court directed that all the pending bills of the plaintiff as shown in the concluding paragraph of the impugned order at Serial Nos.(i) to (iv) were attached and that the case was fixed for further proceedings on 3‑3‑1997 with the direction that the appellant/defendant shall pay the aforesaid amount to the respondent/plaintiff alongwith .75 % interest per day.

2. Feeling aggrieved of the aforesaid order, this appeal was instituted or the ground that the amount in question as not payable because the respondent/plaintiff was at fault to frustrate the agreement; that the impugned order could not be passed without issuing of a notice for filing security as intended by Order 38, Rules 5 and 6, C.P.C.; that it could only be made when such notice was issued but the security was not furnished in pursuance of such notice. Reliance was placed on Messrs Madan Theatres Ltd. v. Hari Das (AIR 1936 Lahore 33) and Faqir Ali v. Muhammad Hayat (PLD 1976 Lahore 298); and that some of the bills related to the projects which were outside the territorial jurisdiction of the learned trial Court and, as such, no order of attachment could be made beyond its territorial limit. Reliance was placed on Chaudhri Kanhya Ram v. Firm Dina Nath Hardial Mill (AIR 1926 Lahore 330) to support this point that according to compromise, the bills relating to the C.D.A., could be attached at the best, but none of others as mentioned in the petition for attachment; and that the suit was finally decided by the learned trial Court ex parte vide its judgment, dated 3‑3‑1997 for which a petition was moved by the appellant/defendant for setting aside the same and it is yet pending.

3. Learned counsel for respondent No.l/plaintiff contended the since a decree has been passed on the basis of compromise, hence the present appeal had become infructuous. Since the cheques were given as security for the payment of outstanding amount, therefore, those were liable to be attached. Even otherwise, a Court could attach the property beyond its territorial jurisdiction for which reliance was placed on Kanshi Ram v. Hindustan National Bank Ltd. (AIR 1928 Lahore 376). That since a time‑schedule was given for the payment of the outstanding amount under an agreement by the parties, therefore, that time could not be changed or altered for which reliance was placed on Syed Ahmed Shah and 2 others v. Muhammad Yar and 6 others (1974 SCMR 191); that the attachment could be made even before the decree had become executable and, as such, the attachment already made was allegedly good in the eyes of law. Reliance was placed on Muhammad Saeed and others v. Mst. Hanifa Begum and others (1990 CLC 1162 (Karachi)).

4. Learned counsel for C.D.A. i.e., respondent No.2 contended that attachment as directed by the Court has already been made by the aforesaid respondent which is yet in force. 5.? I have considered the foregoing contentions. It may be observed that the suit in the Court below has already been decreed ex parte for which the appellant/defendant has moved an application for setting aside the same. As such. the moving of the petition for setting aside ex parte decree shall be considered in continuation of the original suit. The matter will only become final as and when the petitioner for ex parte decree is finally disposed of in that perspective, this appeal would not become infructuous, but would be decided in the light of the changed circumstances as indicated above. It is an admitted fact that there was an agreement between the parties on the basis of which a suit was instituted alleging that it was frustrated. During the pendency of the suit, parties had entered into a compromise under which a schedule was prepared for the payment of outstanding amount as aforesaid. The appellant allegedly failed to comply with the terms of compromise by violating the schedule of payment. This has been controverted by the appellant/defendant. These are the factual questions which cannot be determined in this appeal. Since the matter has been re‑opened in the Court below, therefore, it will be appropriate that such factua; matters be re-agitated in that Court.

6. As far as the attachment before judgment is concerned, it shall be valid to the extent of the bills pending with the C.D.A., i.e., respondent ,No.2 and the order of attachment made by the Trial Court to that extent is confirmed. The rest of the bills pending with the other departments which are mentioned in sub?paragraphs (ii), (iii) and (iv) of the concluding paragraph of the impugned judgment are not liable to be attached because the outstanding amount could be satisfied from the amount of the bills which stand attached by respondent No.2. As such, the bills pending with the aforesaid departments as shown in sub?paragraphs (ii). (iii) and (iv) above shall be released from attachment. The order of the learned trial Court is modified and set aside to extent. The order regarding attachment of the bills pending with the C.D.A. i.e., respondent No.2 is confirmed. As a consequence, the bills pending with the C.D.A., i.e., respondent No.2 shall remain attached, but their amount shall be paid subject to the decision of the learned trial Court on the petition for setting aside the ex parte decree. The appeal is partly allowed to that extent and is decided accordingly. The parties are left to bear their own expenses. A.A./Z‑32/L???????????????????????????????????????????????????????????????? ??????????? Petition partly allowed.