1. SHAFI-UR-RAHMAN, J.-The petitioner, an agent of the respondent under a General Sales Agreement dated 29-1-1973, seeks leave to appeal against the judgment of the Sind High Court dated 17-12-1981 whereby an Intra Court Appeal directed against the rejection of an application filed under Order XXXVIII, rule 5, C. P. C., Order XXXIX, rules 1 and 2, C. P. C. Read with section 151, C. P.
2. C. Was dismissed in limine and certain observations were made with regard to the two other applications not the subject-matter of the appeal in the High Court.
3. The agency of the petitioner under the General Sales Agreement was terminated by the respondent. He instituted a suit seeking reliefs in the nature of injunction and damages against the termination of the Sales Agreement which he considered to be unauthorized. The suit is still pending in the Sind High Court. He sought ad interim relief against the alleged termination of the General Sales Agreement. The matter insofar as the grant of appropriate interim relief was concerned came to this Court and the facts find mention in the judgment of this Court dated 3-3- 1980 (1980 SCMR 588). The interim relief was granted in the following terms :- ---(i) Petitioner would render accounts for six months f. e. July, August, September, October, November and December, 1979, to the Nazar of High Court within four weeks and thereafter within a period of fortnight furnishing bank guarantee for the amount found due by the Nazar.
(ii) Respondent should also furnish bank guarantee within six weeks for Rs. 40,00,000 (forty lacs).
(iii) Current business with effect from 1-1-80 should continue under the terms of contract.
4. The satisfaction of the first two conditions set out in the Supreme Court's order dated 3-3-1980 took some time in the High Court thereby inviting from the plaintiff an application (C. M. 1773/80) under sections 3, 4 and 5 of the Contempt of Court Act, and another application (No. 1774/80) under Order XXXIX, rules 1 and 2 of the C. P. C. When the petitioner learnt that the respondent was taking steps to remit abroad through the State Bank its earnings in Pakistan, he moved an application (1646/81) under Order XXXIX, rule 1 and 2 and Order XXXVIII, rule 5, C. P. C. Claiming the attachment of the assets of the respondent before judgment and a direction to the respondent inter alia not to remit its funds or earnings abroad through the State Bank. The respondent had objected seriously to the satisfaction of Condition No. 1 as set out in the judgment of this Court by the petitioner and the matter was taken note of while disposing of these applications by the learned Single Judge but consideration of those objections was postponed to a later date. The learned Single Judge in the High Court after hearing the parties thought it fit to issue notice to the respondent in the Contempt Application (C. M. 1773/80) and in Application (1774/80) under Order XXXIX, rules I and 2, C. P. C. The application under Order XXXVIII, rule 5, C. P. C. Read with Order XXXIX, rules 1 and 2 was rejected on the ground that by repatriating its earnings from Pakistan the respondent was not transferring its assets or properties from Pakistan but was making routine remittances of its earnings which was not intended or likely to defeat the decree that may be obtained by the petitioner. However, in order to protect the financial interest of the petitioner and to ensure the compliance of this Court's order (Condition No. 2) it was directed that the respondent would be restrained from remitting outside Pakistan the .Sum of money to the extent of 40 lacs. This order was, however, conditional and could be got vacated by the respondent if it furnished bank guarantee in the sum of Rs. 40 lacs to the satisfaction of the Nazar of the Court.
5. The petitioner felt aggrieved by the rejection of this application (1646/81) alone and preferred an Intra Court Appeal. While dismissing this appeal in limine the Appeal Bench of the High Court took note of and dealt with an objection of Mr. Khalid Anwar, the learned counsel for the respon--dent, in the following words :-- "With regard to contentions 1 and 2, it has rightly been argued by Mr. Khalid Anwar, the learned counsel for the respondent, that if the appellant feels that there is breach of disregard of the order of the S. C. He should have approached that Court."
6. The Appeal Bench also held that the bank guarantee of Rs. 40 lacs furnished by the respondent could also adequately cover any claim of the plaintiff/appellant and dismissed the appeal in limine.
7. The learned counsel for the petitioner in the first place objected to the finding of the Appeal Bench of the High Court on a matter which was not the subject of the appeal and in which notices had been issued by the learned Single Judge. However, he 'contended that the petitioner would feel satisfied if the Supreme Court, takes upon itself the enforcement of its own orders instead of leaving it to the High Court. The other contention was that the petitioner had invested a huge amount, was on the brink of a total ruin, and his pecuniary interest arising out of the litigation has not been sufficiently protected under the orders of the High Court as except for those earnings which are being remitted abroad there is no other asset or property possessed by the respondent, for it is utilizing rented premises for the purpose of carrying on its business. A serious grievance has been made of the fact that though under the orders of this Court the petitioner was entitled to act as an agent under the General Sales Agreement, the petitioner has not been permitted to function as such with the result that he is facing a grave financial crisis and is without any business whatsoever.
8. The learned counsel for the caveator, on the other hand, submitted that the petitioner could claim even after the orders of the Supreme Court the rights and benefits under the General Sales Agreement and nothing more and as he had failed to render accounts of the earnings or of the tickets held by him and had been unlike an agent acting to the detriment of the petitioner, there was no question of any further relief being granted to him.
9. The immediate grievance of the petitioner was the so-called disobedience by the respondent of the orders of this Court. The matter is pending inquiry in the High Court. It is for the High Court under Article 187(2) of the Constitution, to ensure its obedience. The gratuitous observations of the Appeal Bench, already quoted, being extraneous to the subject-matter of Intra Court Appeal do not in any manner affect the pending proceedings before the learned Single Judge on those applications.
10. As regards the petitioner's prayer for attachment of assets and properties of the respondent before judgment and of restraining the respondent from remitting through State Bank of Pakistan its earnings, it was based on the alleged (i) refusal of the respondent to honour and comply with Conditions Nos. (ii) and (iii) of this Court's order (ii) apprehension of the petitioner that the intended remittances and transfers are "with a view to defeat and delay the execution of the decree that will be passed against them" in the suit and (iii) unless the respondents were stopped from making these remittances "there will be no other property available for attachment and/or execution in the event of the plaintiff's aforesaid application being granted and/or the suit being decreed."
11. The learned Single Judge held that the remittances that were being made by the respondent through the State Bank of Pakistan were not of its assets or properties, with a view to leave nothing in Pakistan, nor was it intended to defeat the eventual decree if any but that these remittances were of routine nature, were of the earnings which even the petitioner as the agent of the respondent was obliged to make promptly and fully. The appeal bench of the High Court has affirmed this view. We do not find on the record as at present constituted, anything to infer that this finding suffers from any legal infirmity or defect. The allegation of disobedience of this Court order and the liabilities, if any, arising there under could not at this stag justify a penal order of the nature sought by the petitioner.
12. The learned counsel for the petitioner did not in fact press for the extreme step of attachment before judgment because it will then jeopardise his own agency and would amount to material alteration of this Court's order requiring the petitioner to act as agent from 1-1-80. The learned counsel for the petitioner wants to protect his agent's commission on the earnings and a reasonable security for satisfaction of the decree, if any, is passed in his favour. In this connection he relied upon this Court's decision in Mohiuddin Molla v. The Province of East Pakistan (PLD1962SC119), wherein it was observed that the Court had the power under its inherent jurisdiction to preserve the property of the judgment-debtor for the benefit of the decree --holder.
13. This aspect of the relief can be attended to by the High Court and a definite finding given after holding an enquiry as to whether the petitioner has been prevented from acting as Sales Agent for no fault of his but he is entitled to some protection in the meanwhile in view of this Court's order that "current business with effect from 1-1-80 should continue under the terms or contract".
14. We may mention that in our order dated 27-6-82 while ordering issuance of notice to the respondent it was further directed that in the meantime the respondent is restrained from remitting Egypt Air Funds through the State Bank of Pakistan.
15. After having heard learned counsel for both the parties at some length we would convert this petition into an appeal and direct that as a measure or protection. The respondent will be restrained from remitting the Egypt Ail Funds through State Bank of Pakistan up to the extent of 12 % viz. The commission to which the petitioner is entitled under the General Sales Agreement till the decision of the suit by the High Court which should be expedited to the extent possible.
16. Parties shall bear their own costs.