TASSADUQ HUSSAIN JILLANI, J.---Through this appeal by leave of the Court, the appellant has challenged the judgment dated 17-9-1998, passed by a learned Division Bench of the High Court of Sindh, vide which the appeal filed by the respondent Muhammad Shafi Petal was allowed and order dated 6-11-1996, passed by a learned single Judge of the High Court of Sindh was set aside.
2. Facts in brief are that with regard to appellant's Firm a winding up order was passed on 13-5-1991 by a learned Company Judge, Karachi. This order was passed in terms of section 43(f) of the Banking Company's Ordinance, 1962. Respondent Muhammad Shafi Petal filed an application under Order XXI, rule 58 read with section 151, C.P.C., praying that Industrial Plot bearing No.147, measuring 1112 sq. Yds., situated in sector 27, Korangi Township, Karachi, subject-matter of this appeal was not a property of the afore-referred Partnership Firm and it be released. The learned Company Judge vide the order dated 6-11-1996 dismissed the application (C.M.A. No.2410 of 1992), primarily on the ground that the inquiry carried out by the official Liquidator revealed that the claim of the applicant/respondent was bogus as the alleged purchase from the original owner was not a genuine transaction. This order was challenged before a learned Division Bench of the High Court of Sindh and vide the impugned judgment dated 17-9-1998, the said order was set aside and it was directed that the property in question be restored to the respondent along with machinery and other relevant articles and that the application under Order XXI, Rule 58, C.P.C. On which the learned Company Judge has passed the order shall be deemed to be pending and was also directed to decide the application afresh according to the law. Leave was granted against the impugned order by this Court on 23-8-2000, inter alia, on the grounds, whether the order passed by the learned Single Judge pursuant to the inquiry conducted by the official Liquidators was not just and proper in the facts and circumstances of this case, whether the learned Division Bench had tenable reasons in law to interfere with and whether the learned Division Bench had erred in law by restoring the possession of the property to the respondent/applicant and at the same time holding that his application under Order XXI, Rule 58, C.P.C. Shall be deemed to be pending.
3. Learned counsel for the appellant, mainly, made submissions on the grounds on which the leave was granted by this Court and submitted that respondent had nothing to do with the property; that it was owned by the Partnership Firm and that fake documents were prepared to have it released from the winding up process.
4. Learned counsel for the respondent, on the other hand, defended the impugned judgment by submitting that when the respondent/applicant purchased the property, the same had not been attached pursuant to the winding up order, that the said property belonged to an individual and there is no document indicating that it was owned by the Firm with regard to which the winding up order had been passed and in any case the learned Company/trial Judge is seized of the matter and all the objections would be attended to by the said learned Judge.
5. We have heard the learned counsel for the parties and have given anxious consideration to the submissions made.
6. The arguments raised by the appellant's learned counsel of necessity would entail factual inquiry which exercise the learned Company Judge is already seized of pursuant to the impugned judgment. Admittedly, no adverse finding with regard to the claim of the appellant has been given by the learned Division Bench in the impugned judgment and the matter was left to be decided by the learned Court of Special Jurisdiction i.e. Company Judge. The primary concern of the appellant at this stage appears to be the delay in deciding the application which cannot be taken exception to because the winding up matter is pending for the last 15 years and before this Court for the last 6/7 years. Even otherwise the impugned judgment is a remand order and in absence of any observation, which could have prejudiced the appellant, no interference is warranted. Resultantly, while dismissing this appeal, we are persuaded to direct the learned Company Judge to decide the matter expeditiously, preferably with period of five months of the receipt of this order. The respondent, however, in the meanwhile, shall not alienate or encumber the property and also shall not remove any material/article/machinery lying there.