SYED ASGHAR HAIDER, J. ---Askari Leasing Ltd. Filed a suit for recovery against respondents Nos. 2 fo 5, after contest, it was decreed Thereafter Execution Petition No. 2/2000, was filed. It would be worthwhile to mention here that an application was filed during the pendency of the suit for attachment and thereafter also in the execution petition for the same purpose. The appellant filed an objection petition (C.M. No. 52-B of 2004) praying that the property in question belongs to the appellant and, therefore, the auction of the said property be set aside. Later another application (C.M. No. 62-B of 2004) for grant of injunction was also filed. Thereafter yet another application (C.M. No. 75-B of 2004) was filed, claiming the ownership of the property on basis of a decree passed by the High Court of Sindh at Karachi, pleading that the sale proceedings be stopped forthwith. These applications, after contest were dismissed by a consolidated order dated 27.9.2004. The appellant is aggrieved of this order, hence the present appeal.
2. Before venturing further it is worthwhile to dilate upon the controversy in hand to a limited extent clarify certain factual aspects of the controversy. The appellant also happened to be creditor to Schon Textiles Ltd., respondents Nos. 3 to 5 were guarantors of this loan, a default occurred and consequently a suit was filed, which resulted into a compromise, pursuant thereto a consent judgment and decree was passed wherein, inter alia, the disputed property, commonly known as 20/C, Kashmir/Egerton Road, Lahore, measuring 2 kanals, 5 marlas and 41 Sq. Ft. Was registered on 11.8.2003, in favour of the appellant in obedient to a Court order; the same property is the subject- matter of the present dispute. It is in this background that the appellant filed the titled appeal pleading that rejection of applications was unwarranted and the impugned ordered be set aside.
3. The learned counsel for the appellant very articulately, distinguished between an order of attachment made during pendency of the suit and its becoming effective. He adverted in this context to plead that an attachment order upon announcement, ipso facto, is not effective, unless procedure ordained in law is followed and the objections raised there-under decided. In the instant matter, though an attachment order was passed, but codal requirements were not fulfilled, thus, there was no binding or effective attachment order in field. The appellant purchased the property on 11.8.2003, as there was no clog upon the title of the disputed property, therefore, sale is valid and legally effective. To further augment his submissions the learned counsel stated that even the post decretal attachment order, is legally ineffective, as legal parameters in this context were also not adhered to and fulfilled, as required by law; he also pleaded that the property in question was not mortgaged in accordance with legal requirements, therefore, it could not -be sold in auction, thereafter he pleaded that in case the impugned order not set aside it, would virtually frustrate the judgment and decree of the High Court of Sindh, which is patently illegal and not tenable in law; the learned counsel emphasized that two orders of attachment are improper and ineffective in law, but this question was not properly addressed in the impugned order. To include the learned counsel stated that the reason and rational contained in the impugned order is contrary to law and, therefore, not tenable to fortify his contentions, the learned counsel referred to the following precedents:- Messrs Tri-Star Polyester Limited and another v. Citi Bank (2001 S.C.M.R. 410).
Vannarakkal Kallalathil Sreedharan V. Chandramaath Balakrishnan and another (1990) 3 Supreme Court Cases 291).
Faqir Ali V. Muhammad Hayat (P.L.D. 1976 Lahore 298).
A.T.K.P.L.M. Muthiah Chetti V. Palaniappa Chetti and others (A.I.R. 1928 Privy Council 139).
Ramji and another V. Ramji (A.I.R. 1933 Allahabad 844).
Derajat Bank Ltd. Dera Ghazi Khan v. Mst. Sardar Bibi and others (A.I.R. 1937 Lahore 671).
Lachhman Das v. Rup Chand and another (A.I.R. 1935 Lahore 57).
State Life Insurance Corporation of Pakistan v. Dr. A.M.J. Shiraze and 9 others (P-.L.D. 1983 Karachi 112).
4. The learned counsel for the respondent No. 1 at the very outset took up an objection that the present appeal is not maintainable, as no notice, as required by Section 22(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was issued prior to the filing of the appeal, therefore, the same be dismissed summarily. He thereafter adverted to Section 22(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, to plead that it places a complete embargo upon transfer of assets after passing of an attachment order and any transfer, made thereafter is ipso facto void, this precisely is the position in the present matter, therefore, appeal be dismissed. The objections are frivolous, mala fide and just meant to prolong, delay and protract the proceedings, the order passed is fair, just and equitable and, therefore, cannot be interfered with, in the present appeal. The judgment and decree of the Sindh High Court, in infra party and not binding upon respondent No. 1, the application itself was not maintainable because M/s. Citizens Investment Corporation (Pvt.) Ltd. Has no nexus with M/s. Citizen investment Corporation Mombassa, Kenya in favour of which purportedly the sale-deed was executed, as the corpus of both entities, is distinct, the appellant has committed a patent fraud and misrepresentation, by intermingling two distinct and distinguishable legal entities in garb of commonality of name and filed the present proceedings, therefore, they be prosecuted in accordance with law.
5. We have heard the learned counsel for the appellant as well as counsel for respondent No. 1. The present appeal has been filed by M/s. Citizen Investment Corporation (Pvt.) Ltd. Through its Chief Executive Pervaiz- ul-Haq Siddiqui, resident of M.A. Jinnah Road, Karachi, where the suit referred to above, wherein the sale-deed was executed pursuant to the order of High Court of Sindh pertains to M/s. Citizen Investment Corporation Mombassa, Kenya, thus, both are different entities and corpus and have nothing in common, except the name and the Chief Executive. A limited company is a legal person and under the law can hold property and initiate legal action as ordained under Order XXIX, C.P.C. The corpus of M/s. Citizen Investment Corporation (Pvt.) Ltd. Is different and distinguishable, the sale was executed in favour of M/s. Citizen Investment Corporation Mombassa Kenya, therefore, even if the proposition raised is accepted, the disputed property belongs to the said entity, thus, the present appellant has neither locus standi or cause of action, or legal status or nexus of file the present appeal, therefore, appeal is not maintainable on this ground alone. The institution of the present appeal also is not in consonance with the requirements of law, as no formal resolution granting authority to the concerned person, as required by law has been filed with the appeal, the proceedings, therefore, have been incompetently and un-authorizedly filed thus, the same are untenable in law. We are mindful of the provisions of Order XLI and Order XLII, Rules 1 and 3, C.P.C., as raised by the learned counsel for the appellant that filing can be done even by a counsel, because he can sign the memo but the same is required to be done under delegated authority, as observed earlier, this authority is clearly missing and is not part of the record, therefore, the learned counsel was not authorized in law to file the present appeal. The other limb of the argument of the learned counsel that the appeal is continuation of proceedings of a suit, also does not hold water, as the present appeal has been filed by M/s. Citizen Investment Corporation (Pvt:) Ltd., and not M/s. Citizen Investment Corporation (Kenya), in favour of whom the suit was decreed pursuant to a compromise, therefore, the appellant has neither nexus with the present dispute nor cause of action. The precedents cited by the learned counsel for the appellant in this context are therefore, distinguishable on facts on no-filing of resolution of fulfilment of procedural, * codal and legal requirements of Order XXIX are fatal to the cause of the appellant, therefore, the appeal also deserves to be dismissed on this ground as well. We are fortified in this context from the following precedents:- Sahibzada Anwar Hamid V. Messrs Top worth Investments (MACAU) Ltd. Through Chairman and 5 others (2003 YLR 2843).
M/s. Standard Hotels (Private) Ltd. v. M/s. RIO Centre and others (1994 CLC 2413).
Abubakar Salery Mayet v. Abbot Laboratories and another (1987 CLC 367).
Government of Pakistan V. Premier Sugar Mills and others (PLD 1991 Lahore 381).
Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) V. Messrs Ghulam Nabi Corporation Ltd,, Lahore {PLD 1971 SC 550).
Bankers Equity Ltd. Through Attorney and 5 others v. Sunfo Cit-Russ Ltd. (formerly known as Sunfo Juices Ltd.) through Managing Director (PLD 1999 Lahore 450).
Mst. Afroz Begum and 2 others v. Qutabuddin (1989 MLD 2493).
National Bank of Pakistan and others V. Karachi Development Authority and others (PLD 1999 Karachi 260).
Board of Control of Cricket in Pakistan v. Karachi Development Authority through Director General and 51 others (1997 CLC 795).
6. As far as the next proposition raised by the learned counsel is concerned that attachment order was passed under the provisions of Order XXXVIII, Rule 5, C.P.C., earlier to the passing of the decree, the same is not prohibited in law, therefore, it can be so done. However, there is substance in the argument of the learned counsel that certain parameters are required in this context to the fulfilled before the attachment order becomes effectively legally, prima facie, these requirements were not fulfilled, but these are only procedural deviations and cannot in any manner prejudice the substantive provisions enacted or the legal provision carved out for this purpose. Notwithstanding this anomaly, later another post decretal attachment order was passed under Order XXI, Rule 58, C.P.C. And the same is not only legally effective but binding as well, because the learned counsel could not point out any procedural defect in these proceedings, as such there is no illegality in the same. As far as the arguments qua passing of two simultaneous orders on the same cause are concerned, they are not illegal, in fact the provisions of Order XXXVIII, Rule 11, C.P.C. Further fortify this petition, as such there also is no illegality on this count as well. The sale-deed in favour of the appellant was executed on 11.8.2003, the attachment order referred to above are earlier in time, therefore, the same is legally ineffective under Section 64, C.P.C. Because any transaction subsequent to the passing of order of attachment is ipso facto void.
7. It is manifestly clear from record that proceedings were initiated under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, but later by operation of law and enactment of Financial Institutions (Recovery of Finances) Ordinance, 2001, the old enactment was repealed but proceedings thereafter continued under the new enactment; the Financial Institutions (Recovery of Finances) Ordinance, 2001, which again prohibits the judgment-debtors from transferring the property subject-matter of the dispute as contemplated by Section 23, the transfer of this property is also legally void and ineffective as it violates the bar contained in Section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
8. For what has been stated above, this appeal has no merits and is therefore, dismissed.