1. ' NADEEM AZHAR SIDDIQI, J.---- This is an application for setting aside the order dated 7-8-2003 by which C.M.A. No,1583 of 1999 was allowed. The decree-holder filed C.M.A. No,1583 of 1999 under Order XXII, rule 3, C.P.C. Read with section 151, C.P.C. And under Order XXXIX, Rules 1 & 2 C.P.C. Read with section 151, C.P.C. The decree-holder has prayed that the legal heirs of deceased J.D. No,2 may be brought on record, grant permanent injunction restraining the legal heirs of J.D. No,2 from selling property bearing No,3/1. Sheet No,C-L 9. Old Survey No,F-9/24, Dr. Ziauddin Ahmed Road, Civil Lines, Karachi, admeasuring 3418.60 Sq. Yds. The J.D. No,4 Mrs. Anwar Mangi has filed counter-affidavit to C.M.A. No,1583 of 1999. In her counter-affidavit she states that she is neither a necessary nor a proper party to the proceedings. She further states that she is daughter of late Ali Hasan Mangi but has neither inherited any property on his death nor responsible for his debts nor any other liabilities. She further claims that she is the lawful and exclusive owner of the property bearing No,3/1, Sheet No,CL-9. Old Survey No,F-9/24, measuring 3418.66 Sq.Yds., Dr. Ziauddin Ahmed Road, Civil Lines Quarters, Karachi, and lawfully sold the same to Mr. Ghani Usman vide sale-deed dated 25-5-1999. The C.M.A. No, 1583 of 1999 came up for hearing on 7-8-2003 and was allowed as prayed.
2. ' Mr. Anjum Ghani Khan, learned counsel for. J.D. No,4. Submitted that the C.M.A. No,1583 of 1999 was allowed in his absence without affording him proper opportunity of hearing. He further states that the counter-affidavit was filed by J.D. No,4 which was not only ignored but in the order it was mentioned that no counter-affidavit was filed which is an error apparent on the face of the record.
3. He further submits that C.M.A.No,1583 of 1999 was not a simple application for bringing the legal heirs on record but it also contains prayer for injunction. He further states that the legal heirs of a deceased J.D. Are not personally liable unless they inherited from Judgment-debtor. Mr. Anjum Ghani further states that C.M.A. No,1583 of 1999 was granted as prayed without considering the merit of application and relied upon the case of Qadir Hassan Tahir v. M/s. Fahimuddin Cotton Industries and others PLD 2000 Karachi 27.
4. I have considered the submissions of the learned counsel and perused the record. It is true that in view of sections 2(ii) and 50 of Civil Procedure Code the legal heirs of judgment-debtor are not personally liable. The decree has to be executed on the estate of the judgment-debtor and not against the legal heirs. The decree-holder has to show that legal-heirs have inherited from the judgment-debtor and unless it is shown, the legal heirs cannot be brought on record. In the case of Industrial Development Bank of Pakistan v. Mst. Roqiya Begum 1986 CLC 1592 it was held that it is clear that unless it is established that the person sought to be joined or sued as legal representative of a deceased person is in possession or has inherited the property of the deceased he cannot be termed as legal representative of deceased. It was further held that a person as a legal representative can be charged with liability only if the property of the deceased has come in his hand and he has not unduly disposed off or applied such property.v Furthermore, Order XXII, rule 12, C.P.C. Provides that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. In accordance with Rule 74(a), of Sindh Chief Court Rules (O.S.) provides that an interlocutory application shall contain only one prayer or one series of alternative prayers of the same kind. In C.M.A. No,1583 of 1999the decree-holder made two prayers i,e, substitution of legal heirs and permanent and ad interim injunction. The main relief in the application is for bringing the legal heirs on record. The injunction cannot be termed as alternative prayer of same kind. On this ground the application is liable to be returned for amendment. From the order dated 7-8-2003 it is clear that counter-affidavit filed by J.D. No,4 was not considered and no opportunity of hearing was provided to her. The order was obtained in ignorance of counter-affidavit and it is possible if the counter-affidavit is brought to the notice of the Court such order may not be passed. The decree- holder has not filed any counter-affidavit to C.M.A. No,1797 of 2003 and the contention of the J.D.
5. No,4 gone un-rebutted. 1, therefore, allow this application and set aside the order dated 7-8-2003 with 110 order as to costs and direct the office to fix C.M.A. No,1583 of 1999 for hearing after notice to decree-holder.