AJMAL MIAN, J.-This petition is directed against the orders dated 2nd January, 1979 and 15th May, 1979 passed by the learned XXIIIth Civil Judge, Karachi and the learned VIth Additional District Judge, Karachi respectively in Suit No. 3442/78 and Civil Revision No. 1/79 respectively.
2. The brief facts leading to the filing of the above petition are that Messrs National Bank of Pakistan (hereinafter referred to as the Bank) filed a suit against the present petitioner and respondent No. 1 for the recovery of Rs.5,259 being Suit No. 1001/69. The above suit was decreed jointly and severally against the petitioner and respondent No. 1 on 12th September, 1970 with 9--/a interest. 1t seems that the Bank filed an execu--tion application against the petitioner, in which by a consent order it was ordered that the petitioner would pay Rs.50 per month towards the decretal amount. It further seems that as the petitioner did not pay the above sum of Rs.50 per month to the Bank in terms of the consent order, a second execution application against respondent No. 1 was filed by the Bank.
In the above execution application respondent No. 1 agreed to pay the decretal amount to the Bank at the rate of Rs.100 per month. After that respondent No. 1 filed aforesaid Suit No. 3442/78 for the recovery of Rs.10,000 against the petitioner in the Court of XXIIIth Civil Judge, Karachi, i. e. Rs.6,425 being the amount of the above execution application, Rs.2.943 being the amount of estimated interest which respon--dent No. 1 was to pay, while making payment of the above decretal amount in installments of Rs.100 per month and the balance in respect of costs etc. It further seems that in the above suit, respondent No. 1 filed an application under Order XXXVIII, rule 5, C. P. C. For attachment before judgment to the extent of above suit amount in the hands of I. G. Police Sind, who was liable to pay a sum more than Rs.53,000 to the petitioner in pursuance of an order passed by this High Court in writ petition, namely, Constitution Petition No. 205/78. In support of the above application respondent No. 1 filed a personal affidavit, in which inter alia it was averred that the petitioner with the intention to defeat the decree, if any passed against him, was about to remove the aforesaid amount outside the jurisdiction of the Court, which he was about to receive from the I. G.-Police. The petitioner resisted the above application. It further seems that the petitioner was granted four adjournments, namely on 4th December, 1978, 9th December, 1978, 13th December, 1978 and 18th February, 1978, but he did not file any counter affidavit. However, accor--ding to the petitioner, he did not file the counter affidavit for the reason that he had filed an application under Order XIX, rule 2, C. P. C. For cross---examining respondent No. 1 on his affidavit, which was filed by him in support of the above application. It further seems that on 19th December, 1978 both the parties were present before the learned Civil Judge, but learned counsel for the petitioner refused to argue the matter. Thereupon the learned Civil Judge directed the petitioner to furnish the security of Rs.10,000 upto 23rd December, 1978. It further seems that the case was adjourned on 23rd December, 1978, 27th December, 1978 and 30th December, 1978, but no security as was ordered was furnished by the petitioner. Consequently, on 2nd January, 1979 the learned Civil Judge ordered the attachment of Rs.10,000 in the hands of I.-G. Police Sind. The petitioner being aggrieved by the above order of attachment filed aforesaid Revision Application No. 1/79, which was taken up by the learned VIth Additional District Judge, Karachi and which was dismissed by the aforesaid order dated 15th May, 1979. The petitioner being aggrie--ved by the above two orders has filed the present petition.
2. (a) In support of the above petition, the petitioner in person has made the following submissions
(i) That since the amount lying with the L-G. Police comprised of arrears of salary, the same could not have been attached.
(ii) That since I.-G. Police was paying the arrears of salary etc. To the petitioner at the direction of the High Court given in Writ Peti--tion No. 205/78, the Civil Judge was not competent in law to attach the above amount as it constituted violation of the order of the High Court.
(i.e) That under Order XXXVIII, rule 5, C. P. C. The learned Civil Judge was obliged to hold an inquiry before passing an attachment order before judgment.
(b) On the other hand, Mr. Masood Hassan, learned counsel for res--pondent No. 1 has made the following submissions :-
(i) That since no counter affidavit was filed by the petitioner to the application for attachment before judgment, the averments contain--ed in the supporting affidavit were to be presumed to be correct and, therefore, the learned Civil Judge acted properly by issuing an order of attachment applied for.
(ii) That this Court cannot interfere with an order passed by a com--petent Court and upheld by the revisional Court, while exercising writ jurisdiction under Article 199 of the Constitution.
(i.e) That even otherwise, the above question of attachment before judgment has become academic since in the aforesaid suit a decree was passed against the petitioner, and that in pursuance of the execution of the aforesaid decree a fresh attachment order was issued by the executing Court on 25th March, 1981 and that a cheque dated 13th April, 1981 in respect thereof was .
Given to res--pondent No. 1 .Which has already been encashed by him.
3. (a) Reverting to the first contention of the petitioner that the amount lying with the I.-G. Police being the arrears of salary could not have been attached in view of section 60, C. P. C. It may be observed that on the other hand Mr. Masood Hassan. Has pointed out that even under section 60, C. P. C. Respondent No. 1 was entitled to attach the salary to the extent of 50%, and that as the total amount payable by the I.-G. Police was more than 53,000 there. Could have been attachment order for a sum of Rs.10,000. His further submission was that in fact the peti--tioner had a money claim against the I.-G. Police, which could have been attached. In our view there is a difference between the monthly salary which is to be attached and the amount recoverable by a Government employee on account of wrongful dismissal in pursuance of a direction of a Court. The object of section 60, C. P. C. Seems to provide 50%, of the salary to the Government employee as subsistence allowance so that he may maintain his family. In our view, section 60, C. P. C. Cannot be ,q pressed into service when a Government employee is entitled to a lump sum amount on account of his claim on account of wrongful dismissal etc Even otherwise since the attached amount in the instant case was less than 50% of the amount recoverable by the petitioner from the I.-G. Police Sind, there is no violation of section 60, C. P. C. Or of any other provision of law.
(b) With reference to the second contention that since the I.-G. Police was directed by the High Court to pay arrears of salary etc. On account of the petitioner's wrongful dismissal from the service, the learned Civil Judge was not competent to issue the attachment order as is constituted violation of the High Court order, in our view the above contention is devoid of any force. Under the petitioner was entitled to recover certain amount from the I.-G. Police. If the respondent No. 1 had any claim against the peti--tioner for which he had filed a suit, in our view he was entitled to apply for attachment before judgment if a case was made out under Order XXXVIII, rule 5, C. P. C. The petitioner cannot claim any immunity from the attachment for the reason that he was being paid in pursuance of c a direction issued by the High Court in a writ petition, .To which, respondent No. 1 was not a party.
(c) Reverting the third contention of the petitioner that the learned Civil Judge was obliged to hold an inquiry before passing the order under Order XXXVIII, rule 5, C. P. C. It may be pertinent to state that inspite of the fact that the petitioner was provided several opportunities, he did a not file any counter affidavit to refute the averments of respondent No. 1 affidavit, and, therefore, the learned.
Civil Judge was justified in presuming that respondent No. 1's averments in his personal affidavit were print facie correct and on the above basis to pass an attachment order. We are) unable to accept the petitioner's explanation that, he did not file any counter affidavit, as he had filed an application under Order XIX, rule 2, C. P. C. For cross-examining respondent No. 1. In our view, the peti--tioner c?Uld Have filed a. Counter affidavit subject to his right to file further counter affidavit in case his application under Order XIX, Rule 2, C. P. C. Was to be granted by the Civil Judge. The petitioner has referred to the case of Messrs H. Nizamudin & Sons, Karachi v. M. V. Orobmee and others (PLD 1977 Kar. 722) in which Zafar Hussain Mirza, J. (as he then was) was pleased to observe as follows:- "12. It is axiomatic that the attachment under Order XXXVIII, rule 5, C. P. C. Cannot be ordered as a matter of course only on the ground that the plaintiffs have a good case at the trial and is to be ordered in exceptional cases only when conditions prescribed by law are satisfied. The applicant must show facts indicating that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court, with intent to obstruct or delay the execution of any decree that may be passed against him. It was forcefully contended that the vessel had arrived at the Port of Karachi on 4th April, 1977 and is leaving after taking cargo, in normal course of business. The intention is not to take out the ship to defeat any decree that may be passed. It was also stated that the cargo on board the ship for expert consists partly of perishable goods and if it is prevented from leaving it will result in collosal loss. There are weighty considerations to be taken in account for the present purpose."
4. Even otherwise, in our view, because, of the changed circumstances no interference called. The petitioner has not controverted the fact is that a decree has already been passed in the aforesaid suit on 19th October, 1980 and that in pursuance of an execution application filed by respondent No. 1, an attachment order was issued by the executing Court and in execution thereof, respondent No. 1 has already received the amount. In our view, the above petition has become infructuous because of the aforesaid facts.
5. For the aforesaid reasons we do not find any merit in. The above petition and hence the same is dismissed with no order as to cots.