1. SYED HASSAN AZHAR RIZVI, J. -- C.M.A. No. 345/2010 has been filed by applicant/objector under Order XXI, Rule 58, r/w Section 15t C.P.C. Seeking recall of order dated 15.3.2010 and pass an order to release/discharge the property from the order of this Court, as the property is solely owned/possessed by the applicant/objector. The application is duly supported by affidavit of applicant Mst. Zubeda.
2. Mr. Atif Awan learned counsel for the applicant stated that applicant is the exclusively owner of property No. F-59, Block-5, Park Lane, Clifton, Karachi vide agreement of sale dated 12.2:1983 and registered indenture of sub-lease dated 12.2.1983. He stated that applicant came to know when a notice was served/pasted on front wall of applicant house that has been attached the above execution. He further argued that the decree-holder mala fidley and with ulterior motive misleading the Court that the.Property is belonged to the judgment-debtor; but the.Fact is that the applicant is the sole owner. Of.The property in question prior to filing of the Suit No. 789/1992; therefore the property cannot be attached in the instant proceedings. Learned counsel in support of his submission, has placed reliance on the cases of Sohail Farooq Sheikh v The State (2009 M LD 375) Mst. Saeeda Begum v..Small Business Finance Corporationand .Another (NLR. 2003 Civil 136).And Asghar Ali v. Abdul Hussain & 3 others (PLD 1977 Karachi 217).
3. Mr. Muhammad Ilyas Khan Tanoli learned counsel for the Decree-holder contended that the application under reply is misconceived, not maintainable, barred by law and the contentions in the same are untrue; applicant is not entitled to any equitable or discretionary relief having come before this Court with unclean hands, and the applications filed by the defendant with the specific intent to deprive the plaintiff from adopting the due course of law. He contended that subject property was purchased by the judgment-debtor and the applicant is a household lady and no source of income and the judgment-debtor is habitual fraudulent and purchases all the properties benami in the name of different persons just to avoid his liabilities. He further contended that the defendant/JD is very much aware of the present proceedings as he has filed written statement in the suit and after settlement of issues he intentionally and deliberately not coming before this Court. He urged that the defendant throughout provided his office address and had received earlier Court notice on the same address. He further urged that this Court vide order dated 29.4.2008 had observed that defendant was avoiding to receive the notice and further observed that plaintiff did not have any other address of the defendant. As such, there was no requirement to repeat the notice again and again. He, therefore, argued that the record of the case indicates that defendant/JD deliberately avoid coming before this Court in the instant suit and habitually avoided coming before this Court as evident from the proceedings of the Suit No 523/1993, which was dismissed for non-proecution on 17.3.2003. He also argued that' defendant fib. Fraudulently trying to misrepresent this Court that he was not aware of the suit. He also argued that decree passed by this Court is not ex-parte as written statement has been filed and Issues have been framed in the suit. He lastly argued that plaintiff/DH not aware of the fact that the attached property does. Not belong to the defendantMD. He, therefore, prayed that the application is liable to be dismissed.
4. It is apparent from the indenture of lease dated 12.2.1983 = registered before Sub-Registrar 'T'
5. Division-1, Karachi that the property attached vide order of this Court is in the name of applicant, who purchased the same through agreement of sale dated 12.2.1983, which was purchased by the applicant long before the filing of the suit and at the stage of execution question could not be gone into as to who had provided the funds for the, purchase of property to the female objector.
6. Therefore, the application filed by the application is allowed and property owned by the objector Mst. Zubeda is released from attachment. .