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Suit No. 454 of 1974, Execution Application No. 65 of 1975 and J. Miscellaneous No. 5 of 1976, decided on 9th February 1976.

‑‑ S. 47 read with O. XXI, rr. 21 & 58‑Attachment order, objections to‑Cannot be entertained before attachment of property in fact made.

‑‑ S. 47 read with O. XXI, rr. 21, 26 & 58‑Attachment, objections to‑Execution of decree, stay of Intervener claiming listed movable properties as her own on basis of a past oral gift and as such not liable to attachment‑Neither in execution application, nor in objection filed by intervenor. nor on declaration of gift full or any particulars of properties given nor any prima facie evidence on file showing mov able Properties ordered to be attached as owned by intervenor Television, radio etc. could be identified by their make, numbers, or models etc. but nothing on record showing such properties same as gifted out to intervenor‑‑Order of attachment, held, could not be stayed in circumstances.

‑‑ S. 47 read with O. XXI, xr. 21, 26 & 58‑Attachment, objections to‑Properties sought to be attached lying in house jointly occupied by intervenor and judgment‑debtor‑No conclusive inference, held, can be drawn from such fact of properties exclusively belonging to one or other and/or owned jointly‑Claim to such properties can be properly made and adjudicated upon only after properties put to attachment.

Niaz Ahmad Khan for the intervenor.

Mansoorul Arfin for the Decree‑Holder.

The plaintiff/D. H. has applied for execution of the decree against the J. D. by attachment and the sale of Car No. KAK‑8016 of the Judgment Debtor No. 1 lying at his premises at No. 8 Overseas Housing Society, Farooq Cottage, Karachi; by attachment of household goods such as Air‑conditioners, T. V., Radio, Electric Fans, Fridge, Furnitures, Fixtures, fittings ornaments, utensils, carpets etc. and such other goods at the pointation of the represent ative of the D. H. to the Bailiff of this Court lying at the residence of the J. D. No. 2 at Block No. 3, Hussaini Coop. Society, Karachi.

Mst. Khurshid Bai, intervenor, w/o Haji Karim has fled an application under section 47 read with Order XXI, rules 26, 58, 60 and 62, C. P. C. and has prayed that the listed movable properties or similar properties are not liable to attachment in execution of the decree as the said properties among others have already been gifted by J. D. No. 2 to the intervenor on 1st December 1973. In support of her claim she has annexed photostat copy of a declaration of past oral gift, dated 8‑12‑1973. Accordingly, Mr. Niaz Ahmad Khan, the learned Advocate urges that the properties which have been gifted to the intervenor by J. D. No. 2 prior to even filing of the suit cannot be attached. Mr. Mansoorul Arfin the learned Advocate for the D. H. has raised some preliminary objections as to the maintainability of the application. His objections are that the provisions of section 47 of the Code of Civil Procedure are not attracted inasmuch as the intervenor was net a party to the suit as the provisions thereof are attracted only to questions arising between the parties to the suit in which the present decree was passed or their representative. The intervenor is also not representative of the parties as she is claiming title to properties in her own right, and that application under order XXI, rule 58, C. P. C. lies only after the property has been attached but in the present case no properties have been so far attached. Therefore, the learned counsel contends that the application is not maintainable. The contention of Mr. Mansoorul Arfin is well founded. Objections to attachment of property could be entertained only after the/ property is attached and not before. The provisions of rules 60 and 62, .4 C. P. C. are attracted also to the attached property. However, even ii I could entertain the objections prior to attachment of property and decide the same under my inherent powers (though I doubt that resort could be had in such a case to inherent powers) there should have been prima facie evidence to show that the movable properties ordered to be attached are owned by the intervenor but neither in the execution application nor in the objections filed by the intervenor, nor in the declaration of the gift full or any particulars of the properties are given. 'television, radio, transistors, electrical equipment is can be identified by their make, numbers or model etc. but there is nothing on record before me to show that the properties which are ordered to be attached and the properties which are claimed to be gifted are one and the same. Therefore, unless the properties are attached and evidence is adduced before me that the properties attached are the same which are covered by the gift, it is not possible to hold thus the properties belong to the intervenor nor is it possible, at this stage without attachment of the properties to lead any evidence to establish title totthe properties, ordered to be attached. Under the circumstances I see no reason to stay the order of attachment already passed. Mr. Niaz Ahmad Khan states that the question of identity of the properties ordered to be attached doses not arise as the house from which properties are sougt to be attached is one in which J. D. No. 2 as well as the intervenor is residing, but from the allegation that J. D. No. 2 and the intervenor are residing in the same house even if it is presumed to be correct, no conclusive influence can be drawn that the properties lying is the house exclusively belong to one or the other and/or owned jointly. Therefore, it i3 only after the properties are attached that any claim to the same can be properly made and adjudi cated upon.

Therefore, I hold that the application is premature and it is liable to be dismissed. Accordingly, I dismiss the same.

S. A. H. Application dismissed.

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