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Suit No. 475 of 1986, decided on 20th August, 1986.

‑‑O. XXXVIII, R. 5‑‑Attachment before judgment‑‑Application for‑ Power conferred on Court under O. XXXVIII, R. 5, C.P.C. to call upon defendant to furnish security for production of property involved in decree, was to be exercised sparingly with due caution and not as matter of course‑‑Intention of defendant to defeat or delay execution of decree must be established first‑‑Plaintiff apprehended that due to serious financial difficulties defendant firm had stopped functioning and that defendant did not own other property sufficient to satisfy decree‑‑Defendant on other hand by producing authentic documentary evidence proved to satisfaction of Court that they owned other properties from which decree against them could be satisfactorily satisfied‑‑Circumstances warranting passing of order in favour of plaintiff having not been established, application of plaintiff for attachment before judgment merely based on presumption and apprehension was dismissed.

1982 C L C 1360 ref.

Khurshid A. Hashim for Plaintiff.

Ahsan Zahir Rizvi for Defendant.

Date of hearing: 20th August, 1986.

This is an application under Order XXVII, Rule 5, read with section 151, C.P.C. filed by the plaintiffs against Messrs Baluma Date Packing Limited, a foreign firm doing business in Pakistan.

A suit has been filed against the defendant for recovery of Rs.1,43,085.60. It has been averred by the plaintiff that the defendants are in deep and serious financial difficulties and have stopped functioning as the board displaying the Company's name has also been removed from its principal office. It has been further averred by the plaintiff that a substantial amount resulting from the defendants' repatriated export proceeds has been credited to their account No. 69212827 with Chase Manhattan Bank N.A. Karachi and besides that the defendants have no assets' in Pakistan. Under the circumstances an inference is being drawn by the plaintiffs that the defendants would either hide this amount to defraud their creditors or remove the same outside the jurisdiction of the Court to delay and defeat the execution of any decree that may be passed in the case.

The defendants have filed counter‑affidavit through their Secretary wherein, these averments have been denied. It has been denied by the defendants that any amount from repatriated export proceeds has been credited to their account as claimed by the plaintiffs. It has also been denied that the defendants possess no other assets in Pakistan, as according to them they possess free hold land valued at about Rs.3.16,250 and leasehold land measuring 3.750 Sq. meters in Hub Industrial Estate which is being held by them for a term of 99 years. Besides, that the defendants claim that they own plant and machinery worth more than rupees nineteen lacs and motor vehicles worth more than rupees five lacs. Photo copies of free hold transfer‑deeds and lease hold agreement have also been filed alongwith their counter‑affidavit.

According to Order XXXVIII, Rule 5, C.P.C. if the Court is satisfied that the defendant 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 or is about to remove the whole or any part of his property outside the local limits of the jurisdiction of the Court, the same would entitle the plaintiff to an order in his favour. It is therefore, essential that an intention on the part of the defendants to defeat or delay the execution of the decree must be established first.

A perusal of the plaint and the respective affidavits filed by the parties clearly indicates that the circumstances warranting passing of an order in favour of the plaintiff have not been established by the plaintiff. First of all the apprehension of the plaintiff proceeds from the fact that the defendants are in serious financial difficulties and have stopped functioning. This assertion of the plaintiffs has not been established as the defendants have filed photo copies of documents indicating that they own both immovable as well as movable properties in Pakistan. Furthermore the apprehension of the plaintiffs that the defendants will either hide the repatriated amount deposited in the above mentioned bank account or remove the same outside the jurisdiction of the court do not in the first instance appear to be well founded as the apprehension is based on mere inference drawn by the plaintiff, but even if this amount is removed by the defendants, there are other properties owned by the defendants, from which the decree can be satisfied. Mr. Ahsan Zahir, learned counsel for the defendants has placed reliance on a D.E. decision of this Court reported in 1982 C L C 1360, wherein it has been held that the power under Order 38 rule 5, C.P.C. is to be exercised sparingly and with due caution and not as a matter of course. Consequently an application making general and vague averments about the defendant's disposal of its articles without giving particulars of debts or intended transferees Nas been held not to be sufficient to entitle the plaintiff to an order under the said provisions of law. In that case the fact that the defendant was a foreign firm which was re-exporting articles brought in Pakistan also failed to weigh with the Court. In another case decided by this Court and reported in P L D 1982 Kar. 79 it was held that a mere presumption and apprehension of the plaintiff as to indulgence of defendants into offending acts could not justify attachment before judgment. Many other cases have been cited by Mr. Rizvi on the point which in my opinion, are not necessary to quote here.

For the aforesaid reasons, I find no substance in this application and the same stands dismissed.

H . B . T . /P‑19 / K Application dismissed.

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