' AJMAL MIAN, J.-- This is a High Court Appeal against the order dated 1-12-1983 passed by a learned Single Judge of this Court in Suit No, 437/81 upon C.M.A. No, 3602/83 filed by the appellant under Order XXXVIII, rule 5, C.P.C. for attachment before judgment of Plot No, 49, Block 7 situated in Federal "B" Area Scheme 16, Karachi (hereinafter referred to as the plot).
' The brief facts leading to the filing of the above appeal are that the appellants had entered into an agreement of purchase dated 23-6-1980 (hereinafter referent as the agreement) with the respondent for the plot for Rs,14,16,678, Under the agreement the appellants had paid a sum of Rs,2,50,000 and a further sum of Rs,60,000. It seems that the agreement was rescinded by a rescission agreement dated 20th May, 1981 under which the appellants were paid Rs,2 lacs and were promised to be paid Rs,52,500. The appellants filed the aforesaid suit for specific performance of the agreement, cancellation of the rescission agreement, recovery of outstanding money amounts and recovery of money as damages, one of the alternative prayers was in the form of declaration that the partnership entered into between the appellants and the respondent for development construction and sale of the shops, god owns and Flats on the plot had been validly entered into and acted upon by the parties and was subsisting.
' Along with the suit the appellants filed above application for attachment before Judgment and also C.M.A. No, 1651/83 under Order XXXIX, rules 1 and 2, C.P.C. the latter application was dismissed by an order dated 25-9-1983, whereas the application in question was disposed of by an order dated 1-12-1983 on the condition that the attachment of the property would cease to exist upon depositing of Rs,52,500 by the respondent within one month. The appellants being aggrieved by the above order have filed the present appeal.
2. In support of the above appeal, Mr. Naqvi, learned counsel for the appellants has urged as follows:-
(i) That since the suit filed by the appellants is for specific performance of the sale agreement, the learned Single Judge should have granted attachment order.
(ii) That even if the suit for specific performance was not to be decreed. the appellants had made alternate prayer for the enforcement of the partnership and that the plot was the subject-matter of the partnership, and, therefore, the attachment order should have been made.
3. It may be observed that the object of Order XXXVIII, rule 5, C.P.C. is to ensure that a defendant dur4ng the pendency of a suit should not dispose of his assets with the intention to defeat the decree, which may be passed in the pending suit. It may be observed that the appellants in their plaint of the suit have averred that the above-rescission agreement was brought about by practicing fraud by the respondent on the pretext of entering into partnership with the appellants for the purpose of development of the plot, and, therefore, the same was not enforceable. It was also averred that the appellants in furtherance of the above partnership had spent Rs,1,75,000 on the development of the plot. It may be observed that under the aforesaid rescission agreement the appellants had received Rs,2 lacs cash and they were to receive further amount of Rs,52,500. It is also an admitted position that the appellants outside the rescission agreement had received a promissory note for Rs,1,18,000. Upon which, they filed a suit in the High Court and obtained a decree. After that they filed Execution Application No, 15 of 1883 and got the plot attached on 6-11- 1983. It has been submitted by Mr. Lakhani, the learned counsel for the respondent that the appellants have already received the detrital amount of the aforesaid decree, ' The learned Single Judge has ensured the appellants' interest in terms of the rescission agreement by ordering that the attachment of the plot would cease upon depositing of Rs,52,500 by the respondent within one month from the date of the order under appeal. It may be observed that prima facie rescission agreement shall hold ground till the. time the appellants succeed in proving the alleged fraud by adducing reliable evidence at the trial of the suit. Similarly, they will have to establish their alternate plea of partnership as admittedly no partnership deed was produced. Additionally from the order under appeal, it is evident that the plea of partnership was not pressed into service in aid of the above application under Order XXXVIII, C.P.C.
4.We aired, therefore,' of the view that on the basis of the material on record, the order of the learned Single Judge, seems to be just and proper and in consonance with law, and, hence, the above appeal has no merits and is dismissed with no order as to costs.