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Civil Revision No. 913 of 1972, decided on 5th June 1979.

Judge having personal knowledge-Not to hear case--Judge introducing in judgment absolutely irrelevant matters-Judge, held, acted illegally and with material irregularity in exercise of his jurisdiction.

----O. XXXVII, r. 5-Proposition that a person being income-tax assessee or poet or journalist or man of repute would not transfer property for obstructing execution of decree-Neither a rule of law nor of prudence.

Shirkat-e-Ahbab v. National Bank of Pakistan P L D 1969 S C 349 ref.

Dr. Khalid Ranjha for Petitioner.

Malik Sher Bahadur for Respondents.

Date of hearing : 5th June 1979.

This petition is against an order dated 27-11-1972 passed by Mian Ghulam Ahmad, Senior Civil Judge, Lahore dismissing the petitioner's application under Order XXXVI(I, rule 5, C. P. C. for attachment of picture "Kissa Khawani" belonging to defendant-respondent No. 1 and a house belonging to defendant-respondent No. 2. The only ground on which this petition dismissed was that the defendants were respectable and law-abiding persons and as such no attachment of their property was required. Mr. Qateel Shafai is a writer of repute and enjoys otherwise also noble reputation. It was unlikely that in order to frustrate the decree he would dispose of his property. He was also an income-tax assessee and a widely respected poet and journalist. His financial position was also not unsound. The learned trial Judge relied upon P L D 1969 S C 349 that where the attachment before judgment was unjustified, the order could be recalled.

2. All these grounds which are given by the learned trial Court are not relevant or germane to the decision of the case. They are really conjectural in character or based upon the personal knowledge of the learned Judge about the nobility of the respondent. If the learned Judge had any personal knowledge, he should not have heard this case. However, by introducing in the judgment matters which were absolutely irrelevant he had acted illegal ly and with material irregularity in the exercise of his jurisdiction. There is no rule of law or even prudence that a person who is an income-tax assessee or a poet or a journalist or a man of repute would not transfer his property for the purpose of obstructing the execution of the decree. The judgment of the learned trial Court is, therefore, liable to be set aside.

3. Rule 5 of Order XXXVIII provides that attachment before judgment can be ordered if the Court is satisfied by affidavit or otherwise that the defen dant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property. There is an affidavit of the plaintiff to that effect. On the other hand the defendants have merely relied upon the entries before the learned trial Court. The petitioner does have a prima facie case because the case of the respondents is that they have already paid a sum of Rs. 14,C00 out of Rs. 16,000 which means that the burden to prove the payment would have to be placed upon them. Unless they are able to prove this it will be taken as if they are liable to pay the amount in dispute On a question put by me to the learned counsel for the respondents, he said that Qateel Shafai was making the picture Kissa Khawani, and yet respondent No. 1 denied that this picture was his. This is another circumstance in support of the affidavit of the

petitioner.

4. 1, therefore, allow this petition with costs, set aside the order of the learned trial Court and direct the respondents to furnish security for payment of Rs. 16,000 with interest at the rate of Rs. 6% per annum and costs of the suit which may be calculated by the trial Court provisionally, by the 5th of July 1979. In case of default the house, Property No. B. XXXIII-6. S. 2-B, Street No. 35, Wahdat Colony, Gujranwala shall be attached before, judgment. This house shall not be transferred in any manner by the respondents during this period of one month.

Petition allowed.

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