T ' The applicant above-named, being aggrieved by order, dated 12th November, 1973 passed by learned IVth Additional District Judge, Karachi in Execution No, 4/70 (Suit No, 152/66), by which applicant as Garnishee has been ordered to deposit amount of Rs, 26,000 in Court within a fortnight 1 the impugned order, failing which the statement is to follow, has filed this revision application, on the following facts and grounds.
2. The respondent No, 1 above-named had filed a suit for the recovery of Rs, 20,000 and for accounts against applicant and the respondents Nos. 2 and 3. In the said suit respondent No, 1 had made following three prayers in para. 13 of the plaint.
(a) To pass a judgment and decree of Rs, 20,000 against the defendants.
(b) That the defendants be ordered to render accounts to the plaintiff and a preliminary decree be passed in respect of the commission and the Commissioner be appointed to examine the books of accounts, vouchers, daily sales reports etc. As may be produced by the parties for the purpose of arriving at 20% Commission and a final decree be passed on account of the commission so found on rendition of accounts against defendant No, 1 or whoever amongst the defendants found liable.
(c) That the defendants Nos. 1 and 2 be ordered to deliver the possession of the said two films namely : (a) The bride is too beautiful, (b) We joined the Navy, enlargements, posters, prints booklets, trailers and the said film seized from the defendants or from any person or persons cinema houses, in possession of these films and the plaintiff's charge and general lien on the said films be declared till the amount of Rs, 20,000 and the commission is paid.
3. The above suit was decreed against respondent No, 2 for Rs, 20,000 only. The trial Court also decreed the said suit in terms of prayer in clause (c) para. 13 of the plaint as mentioned above against the applicant and respondent No,
3. The Trial Court further passed a preliminary decree in terms of clause (b) of para. 13 of the plaint, against respondent No, 2, who was directed to render accounts.
4. The respondent No, 1 above-named (Decree Holder) by execution application No, 4/70 sought to execute the above-mentioned decree, under Order XXI, rule 46, C. P. C. Against the applicant alone.
In this execution application respondent No, 1 above-named had claimed the following reliefs :-
(1) By attachment and ordering S. A. Hashmi son of Syed Abdul Qudus Hashmi of Orient Advertisers Ltd., Haroon Chambers, South Napier Road, Karachi to deposit the amount of Rs, 21,721.49 lying with him belonging to judgment debtor No, 1 viz. Sajjad R asool Zar ; under Order XXI, rule 46, C. P. C.
(2) By the delivery of the possession of two films namely (i) The bride is too beautiful, (ii) We joined the Navy, enlargements, posters, prints, booklets, trailers from judgment-debtors Nos. 2 and 3 or any person claiming through him under Order XXI, rule 43, C. P. C.
5. Notice of attachment was issued to the applicant and respondents Nos. 2 and 3, who contested the execution application on various grounds. The applicant above-named contested the said execution application in respect of above-mentioned prayer No, 1 in the said execution application, whereby amount of Rs, 21,721.49 was being sought to be attached in the bands of the applicant, as Garnishinee under Order XXI, rule 46, C. P C.
6. In the execution proceedings in question respondent No, 1 had examined himself and two witnesses namely Amir Hussain and Munir Ahmad, whereas the respondent No, 2 had examined himself. While applicant examined one Syed Akhtar Hussain Alvi, but he did not go into the witness- box personally.
7. The case of respondent No, 1 (decree-holder) in the said execution application was, that applicant, who was also judgment-debtor No, 2 in the said execution proceedings, was a Garnishinee in respect of amount of Rs, 21,721.49 belonging to judgment-debtor No, 1, which amount was in his possession and which amount the applicant had not paid to respondent No, 2 (judgment-debtor No, 1) and as such the same may be attached and applicant be called upon to deposit the said amount in the above-mentioned execution proceedings. According to the respondent No 1 (decree-holder) an agreement Exh. 18 in the main suit was executed between respondent No, 2 (judgment-debtor No, 1) and the applicant (judgment-debtor No, 2) and under this agreement applicant was liable to pay the said amount to respondent No, 2 which he had not paid and further under the said agreement applicant undertook the liabilities on behalf of respondent No, 2 (judgment-debtor No, 1) to pay his debts as mentioned in the said agreement, which too he has filed to do so. In support of this statement respondent No, 1 had produced two witnesses namely Zamir Hussain and Munir Ahmad, one from the Excise and Taxation Department and other from the Bank, where account in the name of Kashmir Films, was opened on 24th January, 1964 by the applicant as sole proprietor, and was in fact operated by him as such. The evidence of these two witnesses was not at all shakened in their cross-examination.
8. Respondent No, '2 (judgment-debtor No, 1) in his statement in the said execution proceedings deposed, that he wound up his business in the year 1963 in the name of Kashmir Films and confirmed the execution of agreement Exh. 18 between himself and the applicant above-named on 20th January, 1964. He further stated that he had handed over his said business of Kashmir Films to the applicant with all rights and liabilities. He further stated, that applicant had not paid him the amount of Rs, 28,000 which he had agreed to pay him under Exh.
18. Besides this he stated in his statement, that the applicant was liable to pay him 25% as commission on the films exhibited by him. Syed Akhtar Hussain Alvi, who was examined as a witness of the applicant stated in his deposition, that he is the Manager of Orient Advertisers Ltd., which belongs to the applicant. In his deposition he admitted, that application used to deal in exhibition and distribution of films in the name of Kashmir films. He, however, denied that Exh. 18 bears signature of applicant, but he admitted, that applicant used to operate the bank account in the name of Kashmir Films. On the basis of the above evidence led by the parties, the executing Court framed the following issues for determination :-
(1) Whether the judgment-debtor No, 2 is a garnishee and is indebted to judgment-debtor No, 1 ?
(2) What is the amount lying with judgment-debtor No, 2 on account of judgment-debtor No, 1 ?
(3) Whether the decree-holder is entitled to have the possession of the two films viz. "The bride is much too beautiful" and "we joined the Navy" together with enlargements, prints, posters etc. From the judgment-debtors Nos. 2 and 3 or any person claiming through them ?
(4) What should the order be ?
9. Since this revision application is concerned which issue No, 1 only, I will only consider the decision of the executing Court in respect of this issue only. Whether the said decision is in accordance with the law and is based on the evidence on record or not. The learned Additional District Judge, while deciding the above issue, after having discussed the evidence on record and taking in consideration arguments that were advanced before him, came to the conclusion, that applicant was liable to pay a sum of Rs, 28,000 to respondent No, 2 and as such he was Garnishinee for the said amount, which was payable to respondent No, 2 and as such the said amount can be attached under Order XXI, rule 46, C. P. C. In the hands of the applicant, as applicant was held to be a debtor in respect of the said amount to respondent No, 2, by executing Court, by its order, dated 12th November, 1973. The executing Court also decided issue No, 2 by holding that the applicant was at least liable to pay a sum of Rs, 28,000 to respondent No,
2. As far as issue No, 3 is concern the Executing Court decided that the respondent No, 1 had lien on films in question till commission due to him is paid by respondent No, 2.
10. In view of the above determination of the issues, the Executing Court directed the applicant to deposit Rs, 28,000 in the Executing Court as Garnashinee vide its order, dated 12th November, 1973.
The applicant above-named being aggrieved by said order of the learned Additional District Judge Karachi has preferred this revision application on the grounds mentioned in the above application.
11. I have gone through the impugned order, dated 12nd November, 1973 of the learned Additional District Judge, Karachi, as well as agreement Exh. 18, as well as the evidence recorded by the Executing Court and judgment, dated 23rd February, 1970 of the learned Additional District Judge, Karachi passed in Suit No, 152 of 1966 and have taken into consideration the arguments advanced by the learned Advocates of the parties before me and have also carefully considered various authorities cited by learned counsels of both the sides.
' I would like to dispose of preliminary objection taken by the learned Advocate for the respondent, that the above revision application is not maintainable against garnishnee order passed under Order XXI, rule 46, C. P. C. As the said order is appealable order. In reply to this preliminary objection, the learned Advocate for the applicant submitted, that this Court can treat the above revision application as appeal, as the same was filed within the period allowed for appeal. In support of this contention, the learned Advocate for the applicant relied upon the cases reported in PLD 1975 Kar.
1090 and PLD 1971 Dacca 293. The learned Advocate for the respondent, on the other hand, has relied upon a case reported in PLD 1970 SC 506 and submitted that, since no appeal was preferred against the order in question which was appealable, the revision ought to be dismissed.
' I have considered the above submissions of the learned Advocates for the parties and have gone through the authorities cited by them. The authorities cited by the learned Advocate for the applicant fully support his contention, that this Court has the power to convert the above revision application into appeal. And since the above revision was filed within the time permissible for the appeal provided against the order in question A the request of the learned Advocate for the applicant seems reasonable. The case relied upon by the learned Advocate for the respondent namely, PLD 1970 SC 506 is on different facts and, as such, in my opinion is not applicable to the facts of the present application.#TE## In view of this, I treat the above revision application as appeal against the order in question and propose to dispose of the same as such.
' The learned Advocate for the appellant has attacked the impugned order on the ground, that the appellant could not have been considered as garnishnee in respect of the amount in question, as he had disputed his liability for payment of the eaid amount and, as such, the learned IVth Additional District Judge, Karachi, has erred in holding the appellant as garnishnee. The third contention that has been raised by the learned Advocate for the appellant before me is that Exh. 18, which is the basis for holding that the appellant is liable to pay a sum of Rs, 28,000 to respondent No, 2 does not bear the signature of the appellant, nor the said exhibit was acted upon and, as such, the question of the appellant being liable to pay the said amount of Rs, 28,000 to respondent No, 2, under the said agreement does not arise. The learned Advocate for the respondent, on the other hand, submitted that it is clear from the evidence produced by respondents t and 2 before the executing Court as well as from the evidence of witness produced on behalf of the appellant, that the appellant after execution of Exh. 18 opened a bank account in the name of Kashmir Films, which he operated as a sole proprietor. The learned Advocate for respondent No, 1 further submitted. That respondent No, 2 in his statement on oath before the executing Court stated that in pursuance of Exh. 18, he had handed over his business in the name of Kashmir Films to the appellant, who, in spite of this, has failed to pay him a sum of Rs, 28,000 as mentioned in the said Exh. 18, which is an agreement, dated 20th January, 1964 and as such, he is liable to pay him the said amount. The learned Advocate for respondent No, 1 further submitted that the appellant did not go into the witness box to deny the execution of Exh. 18 and or to support his stand that the agreement in question was not acted upon and, as such, he was not liable to pay a sum of Rs, 28,000 to respondent No,
2. The learned Advocate further submitted, that only one witness was produced on behalf of the appellant, who was his Manager. Although this witness has denied the signature of the appellant on Exh. 18, but in his statement he has admitted that the appellant had opened the account in the name of Kashmir Films and was operating the same. According to the evidence of a witness produced by respondent No, 1, namely, Munir Ahmed, who is a bank employee, the appellant had Opened an account in the name of Kashmir Films as sole proprietor on 24th January, 1964 i. e. After the execution of Exh. 18, which is dated 20th January, 1964. In view of this, the learned Advocate for respondent No, 1 submitted, that the conclusions arrived at by the learned IVth Additional District Judge, Karachi that the appellant is a garnisheeing to the extent of Rs, 28,000 as mentioned in Exh. 18, is based on an appraisal of the evidence, which was led by the parties in the execution proceedings and, as such, they said finding is based on cogent reasons, and the learned Advocate for the appellant has failed to point out any reasons for upsetting the said finding, by this Court. I have carefully considered the above submissions made by the learned Advocates of the main contesting parties and have also gone through the order, dated 12th November, 1973 of the learned IVth Additional District Judge, Karachi, as well as the evidence, which was produced before him.
The bare reading of Exh. 18, clause 2(a) shows that the appellant by this agreement, dated 20th January, 1964 had undertaken to pay a sum of Rs, 28,000 to respondent No, 1 for and on behalf of respondent No, 2, but, according to the statements of both these respondents recorded before the executing Court, the said amount was not paid by the appellant to either of them. The appellant did not choose to go into the witness-box in support of his contention that agreement, dated 20th January, 1964 (Exh. 18) was never acted upon and, as such, he was not liable to make the said payment. On the contrary, the evidence produced on behalf of respondent No, 1, respondent No, 2 as well as of the witness produced on behalf of the appellant clearly show that the appellant, after the execution of Exh. 18, opened bank account in the name of Kashmir Films as sole proprietor, and started trading under the said name, according to the witness produced on his behalf. In the face of this evidence and the documents on record, the conclusions arrived at by the learned IVth Additional District Judge, Karachi, that the appellant was garnashnee to the extent of Rs, 28,000 mentioned in clause 2(a) of Exh. 18 and, as such, they said amount is liable to attachment in execution of the decree obtained by respondent No, 1, are based on cogent reasons and, as such, I see no reason to disagree with this finding of fact arrived at by the learned IVth Additional District Judge, Karachi, in his order, dated 12th November, 1973 in this connection.
' In view of my above conclusions, I see no force in the above appeal and, as such, dismiss the same with costs.