2010 PLP 1032 (MLD)

SALMAN HAMID, J.

Through this application (C.M.A. No.8057 of 2007) the plaintiff seeks attachment before the judgment of defendants' Property bearing No. OZ/I/P-68 (1B & 1B), Molasses and Edible Oil Installation Area, Port Muhammad Bin Qasim, Karachi, hereinafter referred to as the "property" on the ground as mentioned in paragraph 4 of the supporting affidavit of the captioned application wherein it has been stated that the defendants Nos. 1 to 3 with intent to obstruct the execution of any decree, that may be passed against the defendants, have procured a buyer who is willing to purchase the property and, therefore, the property be attached before judgment and for the reason that there is no other property/asset of the defendants available with the plaintiff to recover the amount of Rs.21,482,628, if eventually the decree would be passed in their favour. No other ground for attachment of the property is mentioned in the application or supporting affidavit. A detailed counter-affidavit to the plaintiff tiled in support of the referred application was filed by the defendants, refuting all the allegations, as contained in the application and its supporting affidavit. The defendants in paragraph 3 of their counter-affidavit have categorically denied that they have any intention or they are negotiating with any prospective buyer for disposal of the property which would intent to obstruct and/or delay the execution of any decree that would be passed against them and, therefore, the application merits dismissal. Besides that, it is also mentioned in their counter-affidavit that the powers as contemplated under Order XXXVIII, rule 5, C.P.C. are to be exercised with caution and not as a matter of routine and on the mere .allegation of the party concerned that the properties would be sold by other party against whom the decree is sought cannot be granted. It is further urged by the defendants in their counter-affidavit that the plaintiffs have yet to prove their claim, as contained in the suit, and there is every likelihood that the decree would not be passed by this Court as the claim of the plaintiffs is utterly false, bogus and sham. No rejoinder to such counter-affidavit was filed by the plaintiffs. I have heard the learned counsel for the parties and perused the material available on record as well as case law cited by the learned counsel for the defendants i.e. PLD 1979 Karachi 734, 1982 CLC 1360 (Karachi), 1987 CLC 984 (Karachi), PLD 1996 Karachi 339, 1999 MLD 1434 (Karachi), 1999 MLD 1091 (Karachi), 1997 CLC 2003 (Karachi), 1992 CLC 1644 (Karachi), 1991 CLC 2071 (Karachi) and 1998 MLD 171 (Karachi). It is worthwhile to mention that in terms of order, dated 28-9-2007 the Advocate for the defendants undertook that the defendants have no intention to dispose of the property in question or to create third party interest therein whereafter the restraining orders from creating third party interest in respect of the property was passed which still holds the field. It would be further clear from the contents of the application and its supporting affidavit that no efforts have been made to show as to how the defendants are trying to create third party interest in the property. Neither the name of the buyer who is willing to purchase the property is shown in the application and/or its supporting affidavit nor any other proof has been filed to substantiate such an apprehension on the part of the plaintiffs. It is well-settled by now that the provisions of rule 5 of Order XXXVIII being penal in nature must be exercised with caution and not as a matter of course. Having giving anxious thought to the above provision of law and the case-law cited by learned counsel for the defendants, the application is without any merit and is hereby dismissed. M.U.Y./T-9/K???????????????????????????????????????????????????????????????????????? Applicant dismissed.