1979 PLP 32 (SCMR)

NASIM HASAN SHAH, J. This petition by the Thal Engineering Industries, a corporate body, is for leave to appeal against the judgment of the Lahore High Court dated 17‑4‑1978 in F. A. O. No. 157 of 1973. The facts which form the background, briefly stated, are that respondent No. 1, the Bank of Bahawalpur Ltd., Lahore, in execution of a decree for the recovery of a sum of Rs. 1,14,619 obtained by it from the Court of Senior Civil Judge, Lahore, against Abdul Qayyum Arif on 22‑11‑1969 had the Thal Engineering Industries, Jauharabad attached through the Civil Judge, Sargodha, on a precept issued to it. The judgment‑debtor's objection against this attachment was dismissed on 13tb April 1970. The property was thereafter put to sale and was purchased by respondent No. 2 on 12th April 1972. During all these proceedings the present petitioner neither objected to the attachment of the property nor to its ultimate sale. On 22‑4‑1972 the petitioner filed a petition through the judgment -debtor as its Managing Director contending, inter alia, that the property attached and sold in execution of the decree was not the property of the judgment‑debtor but that of the petitioner. The petition was contested by the respondents which led to the framing of the following issues :‑ (1) Whether the Thal Engineering Industries Ltd., Jauhatabad (peti tioner) is the owner of the factory in dispute which has been auctioned out ? (2) Whether the auction proceedings are fraudulent ? If so, its effect ? The Executing Court by its order dated 28‑7‑1972 rejected the application with the findings against the petitioner on both these issues. Aggrieved of this order the petitioner filed an appeal (F. A. O. No. 157 of 1973) in the Lahore High Court. On an application by the petitioner (C. M. No. 2830/C of 1973) the appeal was converted into a revision under section 115, C. P. C. and has been disposed of as such. Originally the objection petition before the Executing Court was presented under Order XXI rule 90, C. P. C. However, on an objection by the respondents that such an application was not competent, the petitioner prayed that the same be treated as an application under Order XXI, rule 100, C. P. C. It is not clear from the order of the Executing Court that this request was granted yet there is an express finding that the application under Order XXI, rule 90, C. P. C. was not maintainable. In the High Court this aspect has been examined further. It has been held that the objection petition was neither maintainable under Order XXI, rule 90 nor under rule 100, C. P. C. A request was made to treat this application under rule 58 of the same Order. This request was not granted and rightly so as under rule 58 no such investigation can be undertaken if it appears to the Court that the claim or objection petition had been dishonestly or unnecessarily delayed or was not made within one year of the date of the first attachment of the said property in execution of the said decree, whichever is earlier. The learned Judge has noticed that the attachment was made on 22‑11‑1969, but the petition was not filed till 22‑4‑1972. He has also noticed the fact that the objection petition was filed through the judgment‑debtor whose own objection petition was dismissed on 13‑4‑1970 and despite notices under Order XXI, rule 66 issued to him he did not choose to file this petition for two years. On a review of the circumstances we feel that the learned Judge in the High Court‑was justified in taking that view. We, however, do not fully share his view that once having treated the appeal as a revision the same could not again be disposed of as an appeal. Once the appeal had been filed in time and on some mistaken advice a' request was made to treat the same as revision, there does not appear to be any legal bar, on a proper appreciation of the law, in again treating it as an appeal. It is established law that Courts should lean in favour of adjudication rather than stifling a proceeding on technicalities. However, being agreed with the view taken by the learned Judge with regard to the question of the maintainability of the objection application, no interference is called for with his judgment merely on this score. An attempt was made to assail the finding of the Courts below on the merits as well and it was submitted that in pursuance of the decree passed against the judgment‑debtor Abdul Qayyum Arif his shares could be attached and not the property of the Company. We do not think it necessary to give any considered opinion on this aspect of the case in view of our finding with regard to the non‑maintainability of the objection petition. Suffice it to say that the Courts below after considering the entire evidence before them came to the conclusion that the petitioner and the judgment‑debtor were not different legal entities, but were in fact one and the same entity. We generally agree with the above assessment. The petitioner being indistinguishable from the judgment‑debtor was debarred from raising the question agitated by him. This objection could be raised only by the other shareholders and partners, but in the absence of any claim by them this could not be adjudicated upon. In view of the foregoing we do not find any merit in this petition which is accordingly, hereby dismissed. Petition dismissed.