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Revision Application No. 31 of 1953, decided on 31st March, 1955.
Civil Procedure Code (V of 1908), O, XXXV111 r. 5 Property attachable is that of defendant not of plaintiff in the hands o f defendant.
Under Order 38 Rule 5 the Court could order attachment of the property belonging to the defendant and not that belonging to plaintiff.
Therefore, no order for attachment could possibly be issued under Order 38 rule 5.
Tahir Ali, for Applicant.
S. M. Lakhani, for Opponent.
‑This revision is directed against the order of Mr. Feroze Nana Ghulamali, Chief Judge, Small Cuases Court, Karachi dated 3rd March, 1953 accepting the appli cation of the respondent to attach cabin and goods therein in case of failure to furnish security.
The respondent Muhammad Moizuddin made an appli cation on 27th January, 1953 under Order 38 rule 5 of the Code of Civil Procedure praying that cabin and goods as per list should be attached. This application was accompanied by an affidavit. In para 7 of the affidavit Muhammad Moizud din alleged:
"That the property in the resturant cabin and the goods meaning the utensils etc., belong to the plaintiff."
Under Order 38 rule 5 the Court could order attachment of the property belonging to the defendant and not that belonging to plaintiff‑respondent, himself. It being the admitted case of the plaintiff‑respondent, that the property sought to be attached and ordered to be attached belong to the plaintiff‑respondent, himself no order for attachment could possible be issued under Order 38 rule 5. That remedy could be available if the plaintiff apprehended disposal of his goods by the defendant or to apply for injunction, which relief of course was not available to the plaintiff‑respondent, in as much as the Court before whom the application was made was a Small Causes Court and it was prevented from issuing orders of injunction because of section 7 of the Code of Civil Procedure.
The revision must succeed and the order of the Chief Judge, Small Causes Court dated 3rd March, 1953 is set aside. The contention of the learned counsel for the applicant that the property is evacuee property cannot stand scrutiny because it has subsequently been held by the relevant authori ty that the property is not evacuee property. The revision is allowed with costs.
A. H. Petition accepted.
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