P L D 2011 Karachi 291 (PLP)

SYED HASAN AZHAR RIZVI, J.

C.M.A. No.345 of 2010 has been filed been C.P.C. applicant/objector under Order XXI, Rule 58 r/w section 151, C.P.C. seeking recall of order dated 15-3-2010 and pass an order to release/discharge the property from the order of this Court, as the property is solely owned/possessed by the applicant/objector. The application is duly supported by affidavit of applicant Mst. Zubeda. Mr. Atif Awan learned counsel for the applicant stated that applicant is the exclusively owner of property No.F-59, Block-5, Park Lane, Clifton, Karachi vide agreement of sale dated 12-2-1983 and registered indenture of sub-lease dated 12-2-1983. He stated that applicant came to know when a notice was served/pasted on front wall of applicant house that has been attached in the above execution. He further argued that the decree-holder malafidely and with ulterior motive misleading the Court that the property belongs to the judgment-debtor, but the fact is that the applicant is the sole owner of the property in question prior to filing of the Suit No.789 of 1992, therefore the property cannot be attached in the instant proceedings. Learned counsel in support of his submission has placed reliance on the cases of Sohail Farooq Sheikh v. The State (2009 MLD 375), Mst. Saeeda Begum v. Small Business Finance Corporation and another (NLR 2003 Civil 136) and Asghar Ali v. Abdul Hussain and 3 others (PLD 1977 Karachi 217). Mr. Muhammad Ryas Khan Tanoli learned counsel for the Decree holder contended that the application under reply is misconceived, not maintainable, barred by law and the contentions in the same are untrue; applicant is not entitled to any equitable or discretionary relief having come before this Court with unclean, hands, and the applications filed by the defendant with the specific intent to deprive the plaintiff from adopting the due course of law. He contended that subject property was purchased by the judgment-debtor and the applicant is a house hold lady and no source of income and the judgment-debtor is habitual fraudulent and purchases all the A properties benami on the name of different persons just to avoid his liabilities. He further contended that the defendant/JD is very much aware of the present proceedings as he has filed written statement in the suit and after settlement of issues he intentionally and deliberately not coming before this Court. He urged that the defendant throughout provided his office address and had receive earlier court notice on the same address. He further urged that this Court vide order dated 29-4-2008 had observed that defendant was avoiding to receive the notice and further observed that plaintiff did not have any other address of the defendant. As such, there was no requirement to repeat the notice again and again. He, therefore, argued that the record of the case indicates that defendant/JD deliberately avoided coming before this Court in the instant suit and habitually avoided coming before this Court as evident from the proceedings of the Suit No.523 of 1993, which was dismissed for non-prosecution on 17-3-2003. He also argued that defendant is fraudulently trying to misrepresent this Court that he was not aware of the suit. He also argued that decree passed by this Court is not ex parte as written statement has been filed and Issues have been framed in the suit. He lastly argued that plaintiff/DH not aware of the fact that the attached property does not belong to the defendant/JD. He, therefore, prayed that the application is liable to be dismissed. I have heard the arguments advanced by the learned counsel for the parties and perused the material available on record. It is apparent from the indenture of lease dated 12-2-1983 registered before Sub-Registrar 'T'. Division-1, Karachi that the property attached vide order of this Court is in the name of applicant, who purchased the same through agreement of sale dated 12-2-1983, which was purchased by the applicant long before the filing of the suit and at the stage of execution question could not be gone into as to who had provided the funds for the purchase of property to the female objector. Therefore, the application filed by the applicant is allowed and property owned by the objector Mst. Zubeda is released from attachment. S.A.K. /M 46/K Order accordingly.