P L D 1976 Karachi 414 (PLP)
AUSTRALASIA BANK LTD.‑Plaintiff/Decree‑Holder Versus MESSRS JUMA KHAN AGHA JAVED CORPORATION AND OTHERS‑Defendants/Judgment‑Debtors
| Citation | P L D 1976 Karachi 414 (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | AUSTRALASIA BANK LTD.‑Plaintiff/Decree‑Holder Versus MESSRS JUMA KHAN AGHA JAVED CORPORATION AND OTHERS‑Defendants/Judgment‑Debtors |
Q1: What are the key laws and sections cited in P L D 1976 Karachi 414 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1976 Karachi 414 (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1976 Karachi 414 (PLP) (AUSTRALASIA BANK LTD.‑Plaintiff/Decree‑Holder Versus MESSRS JUMA KHAN AGHA JAVED CORPORATION AND OTHERS‑Defendants/Judgment‑Debtors). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Headnotes / Summary
O. XXI, r. 58 ‑ Provision does not apply to sale of mortgage property in execution of a decree for sale of mortgage property- Proceedings under such decree by attachment unnecessary. ‑(Mortgage].
Judgment & Decree
"58. Investigation of claims to and objections to attachment of attached property.
(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit; 'Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector :
(a)
(b)
(c)
." A plain reading of this rule shows that the provisions thereof are applicable only in case the property is attached in execution of a decree but not to sale of mortgage property in execution of a decree for sale of mortgage property, for a mortgage decree contains, as it ought to contain, a direction for sale of the mortgage property, the proceedings under such a decree by attachment is unnecessary. In the present case property has not been attached and this fact is not now in dispute. The law on this question is well settled. However, if any precedent is required for the above view, a number of cases can be referred to, particularly the following;
(1) Mahabir Prashad Singh v. Nogendra Nath Mandal A I R 1921 Cal. 479. (2) Kundan Lal v. Allah Bakhsh A I R 1932 Lah. 618. (3) Balijepalli Ramakou Suryanarayana Tanodar and others v. Kampalli Ramchandrudu and others A I R 1932 Mad. 716. (4) Hafiz Mohomed Ibrahim v. BhagWan Das A I R 1935 All.
897. In the first mentioned case Sanderson, C.J., observed as follows :
"In this case there is no doubt that the decree was what is called a mortgage decree, and contained a provision that this property should be sold. Consequently, it was not open to the Execution Court to entertain and adjudicate upon a claim, which was presented by the petitioner under Order XXI, rule 58. "
4. Therefore I am of the opinion that the objections filed by Ghulam Mohomed and Lal Mohomed are misconceived and are liable to be dismissed and I do hereby dismiss the same with costs. S. Q. Objections dismissed.