PAGE-689 (PLP)

Date of hearing : 20th December 1978. The respondent filed a suit for recovery of a sum of Rs. 40,000, on the basis of a receipt said to have been executed by the appellant and also applied in that suit under Order XXXVIII, rule 5, C. P. C. for attachment before judgment of House No. 58/K, Gulberg-III, Lahore. This application was allowed by the learned trial Court by the impugned order dated the 24th November, 1976.

2. Hence this appeal.

3. The learned Court has gone into the question whether the respondent has a strong prima facie case or not and has decided this question in his favour and consequently passed an order of attachment of half of the said house. At the time of admission of this appeal, this order was suspended subject to the appellant furnishing security to the extent of the amount claimed in the suit to the satisfaction of the learned trial Court.

4. The learned counsel for the appellant submitted that if the receipt in question is held to be a promissory note, no suit can be based on it since it is not properly stamped. He submitted that according to the Finance Act, 1973, stamp duty payable on a promissory note would be Rs. 10, while the stamp on the documents which do not even bear the signature of the appellant is only Paisa

80. He further stated that the suit was the outcome of a telegraphic notice sent by the appellant to the respondent in connection with a fraud played upon her by the respondent. Lastly, he argued that the ingredients of Order XXXVIII, rule 5, C. P. C. have not been alleged or proved in his application or the affidavit by the respondent in so far as there is no allegation or proof that the appellant is after selling the house in dispute "with intent to obstruct or delay execution of the decree that may be passed against, her. The learned counsel relied upon Muhammad Yousaf v. Aga Amir Muhammad P L D 1976 Kar. 926 and Faqir Ali v. Muhammad Hayat P L D 1976 Lah. 298 in support of the proposition that though the defendant may be selling his property but the order of attachment cannot be passed unless the required intention is proved on the record.

5. The learned counsel for the respondent on the other hand submitted that the mere fact that the appellant has already sold one house coupled with the circumstance that she wanted to transfer the House No. 58/K at the time of institution of suit and had actually transferred it after the stay order passed by this Court in this appeal on the 13th December, 1976, proves such an intention beyond any shadow of doubt.

6. I am of the view that this appeal must succeed since no order for attachment before judgment can be passed unless the Court is satisfied, by affidavit or otherwise, that the defendant is about to dispose of the whole or any part of his property, with intent to obstruct or delay the execution of any decree. I have seen the copy of the application under Order XXXVIII, rule 5, C. P. C. as well as affidavit attached to it. There is no allegation that the sale is with intent to obstruct or delay the execution of any decree that ma be passed against her. This ulterior motive has not, therefore, been brought home to the appellant. This is a matter which should be pleaded and proved by affidavit and cannot be inferred indirectly from any circumstances which are capable of being. explained in any other manner also.

7. In these circumstances, I allow this appeal leaving the parties to bear their own costs, set aside the order of the learned trial Court and dismiss the application under Order XXXVIII, rule 5, C. P. C. M.A. K. Appeal accepted.