' MUHAMMAD MUZAMMAL KHAN, J.-Instant appeal assailed order dated 20-1-2007 passed by the learned Civil Judge, Islamabad, whereby appellant's application under Order XXXIX Rules 1 and 2 C.P.C. Was dismissed.
2. Appellant company filed a suit for recovery of money against the respondents in the Court of learned Civil Judge, Islamabad, out of contractual obligations, allegedly discharged in execution of a joint venture deployed by Port Qasim Authority. Appellant also moved an application under Order XXXIX Rules 1 and 2, C.P.C. Read with Order XXXVIII Rule 5, C.P.C. Praying issuance of interim injunctions; deposit of sufficient security in Court and restraining respondent. No.2 from disbursing the amounts due for joint work done, to respondent No.l (Messrs Sezai Turkes Feyzi Akkaya Construction Company) and restricting it from removing its assets beyond the. Jurisdiction of the Court cognizant of the suit.
3. Respondent being defendants in the suit, contested the same and opposed the grant of temporary injunction by filing their distinct replies. Learned Civil Judge, after hearing the parties, dismissed the application of the appellant vide order dated 20-1-2007. Appellant filed instant appeal for adjudgment of the order of the trial Court. Respondent No.l is the real contestant who appeared through its counsel and opposed the appeal with the request that it may be treated as "Pakka" case and may be decide accordingly. Respondent No. 2, Port Qasim Authority, and respondent No.3 are pro forma parties.
4. I have heard the. Learned counsel for the parties and have examined the record, appended herewith. Undisputedly, respondents Nos.l and 3 were awarded work of rehabilitation and refurbishment of Iron Ore and Coal Berth at Port Qasim, Karachi and respondent No.l hired the appellant as sub-contractor for repair/ protection of reinforced concrete structural elements, on the basis of a written contract. The allocated work was completed but respondent No.l failed to make payment to the appellant which led to filing of the suit. Since bills of respondent No.l have to be released by Port Qasim Authority, appellant apprehending deprivation sought injunctive order restraining respondent No.2 from releasing the amount to respondent No.l. The asserted loss can be measured into money which would not result in any irreparable loss/injury to the appellant and the claim as put forth in the plaint which was refuted by the respondents, requires determination after recording of some evidence of the parties. At this juncture, no prima facie/arguable case was made out and application of the appellant was. Correctly declined by the trial Court and the impugned order dated. 20-1-2007 to the extent of the refusal of injunction maintained.
5. Application moved by the appellant was of a composite nature whereby besides praying restraint order against the respondents, it was also prayed that responded No.l being an overseas company, may be required to deposit sufficient security in Court to satisfy the ultimate decree in favour of the appellant or to restrict it from removing its assets beyond jurisdiction of the trial Court but this part of the prayer was not attended, by the trial Court while dismissing application of the applicant, in its entirety. Appellant has produced decision dated April 19, 2005 by the 1st Commercial Court of First Instance of Kadikoy, Turkey, showing that respondent No.l is facing the bankruptcy proceedings which have been deferred by the Turkish Court for a period of one year, to liquidate the outstanding debts which has not been finalized so far. Learned counsel for respondent No.l was offered to furnish security/surety for payment of the amount, if ultimately decreed against it, but he after seeking instructions desired to have the case decided on its own merits, which negatively reflects on the designs of respondent No.l. This Court is alive to the fact that attachment before judgment can be ordered within the parameters fixed by Rule 5 of the Order XXXVIII of the C.P.C. And apprehensions of the appellant of the fleeing away of the company facing proceedings for bankruptcy, may remove its assets to defy the ultimate decree, as it has been required by the Turkish Court to pay the outstanding debts within an extended period of one year have tentative worth but this aspect of the case was not decided by the trial Court and could not have been left unattended, hence it is desirable that the some decision under Order XXXVIII, Rule 5, C.P.C. Be taken according to law, by the Court of first instance. Decision of application of appellant to the extent of its prayer under Order XXXVIII Rule 5 C.P.C. Is being avoided, as it would deprive right of appeal/revision of any of the parties.
6. For the reasons noted above, instant appeal is partly allowed and application of the appellant to the extent of prayer about attachment before judgment of assets of respondent No.l shall be deemed to be pending and will be decided through a speaking order, There will be no order as to costs.
Appeal penalty allowed.