MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that a suit for recovery filed on 30-5- 2000 by the respondent against Rana Ikram, predecessor-in-interest of the appellants, was decreed by the learned Banking Court vide judgment and decree dated 31-5-2001 for a sum of Rs.1,896,470. The same was assailed by the said Rana Ikram through R.F.A. No.837 of 2001 before this Court which was partly allowed vide judgment and decree dated 13-5-2001, whereby the principal amount remained decreed, however, the amount of cost of funds was waived of by this Court.
During the pendency of appeal Rana Ikram died on 24-4-2002. In the meanwhile, execution petition was filed by the respondent. In the said execution petition, respondent filed an application.
It was pleaded that after the institution of the suit Rana Ikram purchased a Motor Car bearing Registration No. LOW-9495 Toyota Corrola, Model 1994 from Punjab Modaraba Services (Pvt.)
Limited in the name of his daughter Miss Rabia Ikram. It was alleged that the said transaction was a Benami. The actual owner was Rana Ikram judgment-debtor. Along with the application two letters; one written in hand without date and the other dated 22-6-2000 were appended to show that the vehicle in question was being purchased by said Rana Ikram but had requested the First Punjab Modaraba Services (Pvt.) Limited to transfer the said vehicle in the name of his daughter Miss Rabia Ikram. This application was contested by the appellants. They placed on record a Cheque dated 28-7-2000 issued in favour of Punjab Modaraba Services (Pvt.) Limited for a sum of Rs.3,37,500 issued by Miss Rabia Ikram Rana and a statement of account of the said lady along with the copy of Registration Book to show that the price of the vehicle in question was paid by Miss Rabia Ikram from her own account and the vehicle stood transferred in her name. The learned Executing Court after having considered the submissions of the parties vide order dated 18-11- 2002 declared the sale transaction of the vehicle in question to be Benami and allowed the sale of disputed vehicle for satisfaction of the decree. The appellants filed a miscellaneous application before the learned Executing Court to recall order dated 18-11-2002 but the same was refused vide order dated 1-2-2003 on the ground that this exercise amounts to review of the earlier order which is not, legally possible. Hence, through the instant appeal the' appellants have assailed the order dated 18-11-2002, passed by the learned Executing Court.
2. It is contended by the learned counsel for the appellants with reference to Jane Margrete Willian v. Abdul Hamid Mian 1994 CLC 1437 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703 that the four requirements enunciated by the Superior Courts to declare a transaction Benami are missing in the instant case. He has laid much stress on the fact that the lady had issued a Cheque in the name of the Punjab Modaraba Services (Pvt.) Limited equivalent to the sale consideration of the vehicle. The vehicle was in fact transferred in her name and she is actually possessing the said vehicle.
3. On the other hand, learned counsel for the respondent contends that in fact the transaction was negotiated by Rana Ikram deceased with the Punjab Modaraba Services (TM.) Limited for his own benefit and use of vehicle as is evident from two letters written by him for the purchase of Car. It i s further added that the transaction in dispute had taken place after the institution of suit on 30-5- 2000, therefore, the transaction was patently mala fide and a deliberate act on the part of Rana Ikram to avoid ultimate execution with respect to the said vehicle.
4. We have considered the arguments of the learned counsel for the parties and perused the record ourselves.
5. The suit was filed on 30-9-2000. Two letters issued by Rana Ikram to Punjab Modaraba Services (Pvt.) Limited are after the institution of suit; one is without date but the other carries the date as 22-6-2000. Its extract is as follows:-- "Respected Sir, I am in receipt of your letter dated 20th June, 2000 in which you advised me that it is not possible for you to sell the car to me for Rs.1,00,000. I see no alternative but to arrange the amount required by you. Kindly please allow me two months time to enable me to arrange the funds. I am enclosing three quotations from the market and after allowing 25% concession, kindly let me know the amount to be paid to the Modaraba. Kindly transfer the car as well as the insurance in the name of my daughter Miss Rabia Ikram. I am keen to buy the car, as I have no other vehicle of my own.
With Kind Regards, Yours Faithfully, (Sd.)
Rana Ikram, 55-C-11/Gulberg-III, Lahore.
Tel: 5750779."
6. The above letter written by Rana Ikram clearly indicates that he owns no vehicle and is therefore, keen to purchase the same for his own use but at the same time he wanted the transfer of said vehicle in tile name of his daughter Miss Rabia Ikram. Likewise, although a Cheque was issued by Miss Rabia Ikram in favour of Punjab Modaraba Services (Pvt.) Limited but there is nothing on record to show. that the said Cheque was encashed by the payee. The statement of account of Miss Rabia Ikram attached by the appellants with the file also relates to her Foreign Currency Dollar Account, which do not reconcile with the Cheque issued by Miss Rabia Ikram. The above circumstances clearly indicate that in fact the vehicle in question was purchased by Rana Ikram for his own use. Particularly, when nothing was brought on record by the appellants to establish that Miss Rabia Ikram ever negotiated with Punjab Modaraba Services (Pvt.)- Limited either in writing or orally to show her intention of purchasing the said vehicle 7. For what has been stated above, we find no illegality or irregularity in the impugned order. Resultantly, finding no merit in this appeal, the same is accordingly dismissed.