P L D 1979 Lahore 472 (PLP)

These two matters (F. A.. O. No. 293/78 and C. R. No. 1165/78) arise out of the same proceedings, therefore, they ace being disposed of together.

2. Learned counsel for the appellant at the time of motion hearing raised the point and made the statement as follows : "That even if the attachment was not considered proper by the learned trial Court, the first alternative in rule 5 of Order XXXVIII could have been adopted as a fair measure of protecting the rights of the defendants as also securing the interest of the plaintiffs. According to him, if adequate security would have been ordered to be furnished by the defendants the plaintiffs would have been satisfied."

3. Today respondents Nos. 1 and 2 who are the original defendants in the suit are represented through Mr. M. Nawaz Kasuri. He states that the said two defendants had already created a charge on a Film, named "MAIN BAGHI HOON" which is under production and that this was sufficient security for the plaintiffs-appellants. When questioned as to whether this charge was as a result of Court proceedings, he answered in the negative. Thus, the said charge, even if in existence, would not satisfy the provisions contained in Order XXXVIII. The Court was required to go into the question of satisfactory security and should have decided this question before deciding the question of attachment. Learned counsel for the said two defendants has offered that they are ready to furnish security to the satisfaction oil the trial Court. If that is so, the appellants should not have any grievance left to be satisfied provided the security is to the satisfaction of the trial Court. Despite this reality learned counsel for the appellants is apprehensive that finding given by the learned trial Court with regard to the rights and interest in the film, named "JASHAN"has already kept that property out of the ambit of the original proceedings. The appellants should not have any such apprehension. Any observation made by the learned trial Court while deciding the miscellaneous application qua security and attachment would always remain subject to the final decision in the suit. They in their nature are tentative opinions in order to determine the interim issues relating to security and attachment.

4. In view of the statement made by the learned counsel for the defendants Nos. 1 and 2 to the effect that they are ready to furnish adequate security to the satisfaction of the trial Court and in view of the clear provisions of Order XXXVIII, rule 5, C. P. C. which requires the learned trial Court to consider the question of security as first alternative*, the impugned order is set aside. The case is remanded to the learned trial Court for decision in accordance with law. There shall be no order as to costs. s. Q.?????? Case remanded.