1. ' GULZAR AHMED, J.---By consent of the advocates of the parties, the Nazir's report, all the Miscellaneous Applications and the main application are disposed of on the following agreed terms:--
(1) That Hon'ble Mr. Justice (R) Maulana Mufti Muhammad Taqi Usmani Chairman, Darululoom Korangi, Karachi is appointed as commissioner to sell the Miswak lying at the Mudharaba premises at Badin by calling bids through newspapers and selling to highest bidder. The sale proceeds will be deposited with the Nazir of this Court. Learned Commissioner will give notice to the parties while undertaking the sale. Cost of sale shall be paid by the plaintiffs to the Commissioner which will be counted as costs of the proceedings. Learned Commissioner may take aid and assistance of any of the responsible official of Darululoom for making compliance of this order.
(2) The defendant alleges that the immoveable property of Badin so also a Suzuki Van was purchased by him in his own name and that the plaintiffs be restrained not to sell or dispose of them. Learned counsel for the plaintiff disputes this position and states that in terms of Mudharaba Agreement all assets of Mudharaba belonged to Rebbul Maal, the plaintiffs, who were investors and the immoveable property at Badin so also the Suzuki Van belongs to the plaintiff. The counsel for the plaintiff also states that original title deeds of the immoveable property at Badin and of Suzuki Van are lying with the plaintiff while defendant is in possession of immoveable property at Badin, the possession of Suzuki Van is with the plaintiffs. Both the parties agree that until the arbitration is concluded, they will maintain status quo in respect of these properties.
(3) Counsel for the defendant states that certain supplies were made by him to Al-Khair Miswak Supply Company accounts of which have not been settled as yet and defendant has not received profit of such supply. Apparently, this question has to do with the merit of arbitration and can only be determined after the evidence is recorded. Consequently, no observation on such claim of the defendant can be made at this stage. Defendant is however free to make whatever claim, he wants, in the arbitration.
(4) That Hon'ble Mr. Justice (R.) Maulana Mufti Muhammad Taqi Usmani, Chairman, Darululoom Korangi, Karachi is appointed as sole Arbitrator to decide the dispute between the parties. Such arbitration will be undertaken by the Arbitrator in accordance with Arbitration Act, 1940. The learned Arbitrator may settle his fee with the parties.
2. ' The matter in the above terms stand disposed of.