2004 PLP 592 (CLC)

Civil Revision No.2306 of 2003, decided on 8th December, 2003.

O. XXI, R.53 & O. XXXVIII, R. 5

Suit for recovery of amount-- Plaintiff's plea was that he and defendant as partners in business were jointly entitled to certain amount from a third party

Defendant obtained money decree against third party without impleading plaintiff as party-- Plaintiff filed suit against defendant for recovery of his share in decretal amount alongwith application under O.XXI, R. 53, C.P.C. for attachment of money decree--Trial Court dismissed application-- Validity

Such application would not be competent in a separate and independent suit for recovery of money

Such application would be maintainable before Executing Court, where money decree was under process against third party

Powers under O.XXI, R.53, C.P.C., were exercisable by Court while executing motley decree and not by Court while exercising its original civil jurisdiction in an independent suit-- Court in exercise of its original jurisdiction could pass order of attachment before judgment of a property belonging to defendant only on fulfilment of conditions mentioned in O.XXXVIII, R.5, C.P.C.

High Court dismissed revision petition. Hassan Ahmad Khan Kanwar for Petitioner. The petitioner, brought a suit for the recovery of an amount of Rs.32,54,229 against the respondents claiming that, he and the respondents were conducting the business in partnership and were jointly entitled to certain amount from the Municipal Committee, Okara, but respondents Nos. 1 to 4, without impleading the petitioner, filed a suit for recovery against the Municipal Committee and procured a decree to the tune of Rs.65,08,458.09, in which, the petitioner has the half share, hence the suit. Alongwith the suit, an application under Order XXI, rule 53 of C.P.C. was moved by the petitioner, seeking attachment of the decree, which application has been dismissed through the impugned order for the reasons that, the petitioner had earlier filed some suit for rendition of accounts, which was subsequently, dismissed for want of evidence; appeal of the petitioner has also been dismissed; the petitioner was aware of the suit, which has been decreed and never applied to become a party; moreover, subsequently the petitioner again filed a suit for declaration on the basis of partnership dated 11-10-1990 to the effect that, he is entitled to 1/2 share of the decretal amount, but was subsequently withdrawn.

2. Learned counsel for the petitioner has reiterated that, the petitioner was entitled to 1/2 share and the decree by the other respondents against the Municipal Committee, has been procured without impleading him as party, therefore, he should be given the share in the fruits of such decree and thus, the decree was liable to be attached in terms of Order XXI, rule 53, C.P.C.

3. I have heard the learned counsel for the petitioner and by endorsing the reasons of the Courts below, given in the impugned order, find no merits in his contentions. Moreover, the application was/is liable to, be dismissed for another basic legal ground that, the same under Order XXI, rule 53, C.P.C., was not competent, in a separate and independent suit for recovery of money, filed by the petitioner, rather such application, if at all could be maintained, should have been filed before the Executing Court, where the decree earlier passed in favour of the respondents against the Municipal Committee, Okara, was in the process of execution. While explaining the above, it may be held that, the provisions of Order XXI, rule 53, C.P.C., are the powers only exercisable by the Executing Court of the decree mentioned above and not by the Court, while exercising its original civil jurisdiction in an independent suit. Because in contrast and contradiction to the above, the Court in the exercise of its original civil jurisdiction could only pass an order of attachment before judgment, of a property belonging to the defendant, if the provisions of Order 38, rule 5, C.P.C. were squarely applicable, entitling the suiter of a case, to seek such attachment, and the conditions of the aforesaid rule are duly met. But this is not the position in the present case. Resultantly, I do not find any merit in this petition, which is hereby dismissed. S.A.K./L-92/L Revision dismissed.