' By this order all the above three applications fixed for hearing will be disposed of. Applications No, 782/69 and 1030/69 were filed on 30th May, 1969 and since then are pending for hearing.
Application No, 903/72 was filed giving particulars of the plot required to be attached under Application No, 782/69. The first two applications were first taken up for hearing on 16-6-1969 when the following interim order was passed:- "Notice and interim attachment as prayed. Learned counsel has referred to a second application filed by plaintiff which has inadvertence not been put up by the office. This application is also dated 30-5-1969. I have considered this application. Notice, and meanwhile interim attachment as prayed. The items of movable property to be attached have been specified in clause. D of para. 4 of this application. Learned counsel requests that an inventory should be taken of this movable property. Request is reasonable. The Nazir is directed to proceed to the premises of the Gujrat Bus Service and prepare an inventory of the same assets. Plaintiffs undertake to deposit fee of the Nazir."
' The defendant filed Miscellaneous Application No, 1106/69 for vacating the interim order passed on 16-6-1969 on which the following order was passed:- "All the applicants undertake to furnish Bank guarantee in the sum of Rs, 45,000 within two weeks.
The applicants also undertake not to transfer the office and garage premises and not to use the fittings, spare parts both in their office and garage premises except in the ordinary course of business. Learned counsel for the plaintiff is satisfied with the undertaking. Accordingly in view of this undertaking the attachment of the assets will stand vacated as soon as they furnish the said Bank guarantee. Nazir reference allowed."
' It, however, seems that the defendants did not furnish. the bank guarantee and the interim order passed on 16-6-1969 remained operative. This matter has not proceeded as parties have always taken adjournments. When the matter was fixed yesterday for regular hearing, counsel for the plaintiff applied for adjournment on the ground that their main witness has gone out of Pakistan.
The plaintiff had also not summoned their other witnesses. The learned counsel for/the defendants had also taken no objection to the request of adjournment. In these circumstances, I adjourned the matter yesterday, butt took up these applications which were unnecessarily pending since about 16 years, ' Mr. Sharaf Faridi the learned counsel for the defendants Nos. 1 and 2 has stated that these defendants have no objection to the confirma tion of the interim order dated 16-6-1969. This order so far the defendants Nos. 1 and 2 are concerned stands confirmed. So far the movable properties are concerned, which have been the subject-matter of Misc. Application No, 1411/70, the following order was passed on 16-8-1971:- "As learned counsel wants a date for settlement of issues, the request is allowed. I now turn the Misc. 1411/70. Mr. Mansoor-ul-Arfin wants the attached properties to be sold on the ground that they are deteriorating. Mr. Afzalun Nabi, the learned counsel for the. defendant No, 3 has no objection to the application. The application is allowed. This is without prejudice to the plea of the said defendant in its written statement. Nazir will sell the attached property in accordance with the rules of the Court."
' Mr. Mansoor-ul-Arfin states that in pursuance of this order the movable properties attached have been sold and the sale proceed is deposited in Court. The entire dispute between the parties in these applications remains in respect of a plot of land which was mentioned in the First Applications Nos. 782/69 and 1030/69 and its further particular was given in the Application No, 903/72. The defendant No, 3 has filed a counter-affidavit, stating that under a family settlement Plot Nd. 440/1/1 situated at Lawrence Road, Karachi was transferred to him. According to the averments of the plaintiff this plot of land belongs to Gujrat Bus Service, which was a partnership Firm in 1963, when the plaintiff had advanced loan to the defendants. It is also an admitted position that this plot of land was not mortgaged, or subjected to any security for repayment of these loans.
According to the defendant No, 3 under a family settlement made in 1964 he became the sole propriety or of Gujrat Bus Service, and thus the plot in dispute was also transferred to him and on 25th day of December, 1965 by an oral gift he has transferred this plot to Mst. Razia Begum who is his wife. Therefore, the contention is that, this property does not belong to defenda t No, 3, and therefore, cannot be attached before judgment.
' Mr. Mansoor-ul-Arfin the learned counsel for the plaintiff has contended that the family settlement is not admissible, as it creates interest in immovable properties, and has not been registered. In this regard the learned counsel has referred to AIR 1923 Lah. 371 and AIR 1923 Lah.
392. The admitted position according to the defendants is that family settlement is intended to transfer the property from Gujrat us Service to the defendant No,
3. Such an interest in immovable propert prima facie can be transferred only by a registered deed. Therefo e, prima facie, the title and interest of Gujrat Bus Service cannot be transferred in. favour of the defendant No, 3, and conse quently, the defendant No, 3 cannot transfer it, to his wife. In any event, even if, this transfer by family settlement may be accepted as valid, the question remains whether the defendant No, 3 has transferred this property in favour of his wife. Except his statement in his counter-affidavit and written statements there is nothing on the record to show that such a gift was made and accepted by his wife, and the name of his wife has been mutated in the relevant record. No declaration of gift, or name or witnesses in whose presence the gift was made has been mentioned, in the affidavit, and therefore, prima facie I am not inclined to accept that the property has been gifted to his wife by the defendant No,
3. The question then arises, whether the plaintiffs are entitled to an attachment before judgment or any injunction against the defendants Nos. 3 and 7 in respect of this plot of land.
' Mr. Mansoor-ul-Arfin recounting the events that that have happened had pointed out that the loan was advanced to the defendant in 1963 :and necessary indemnity and counter-guarantees were executed by the defendants on 14-9-1963. The defendant No, 3 is also one of the indemnifiers and in his counter-affidavit he has not denied his signature on these documents. After the loan was advanced and security documents were executed, it seems that the defendants started trans ferring the property by way of family settlement. By this settlement even the shares which were pledged to the plaintiffs were also intended to be transferred from one defendant to another defendant. The learned counsel for the plaintiff has contended that the series of acts particularly the execution of the alleged family settlement is an attempt to transfer the property, with a view to delay and defeat the decree that may be passed against the defendants. The fact that family settlement is alleged to have been made even in respect of properties which were subject-matter of pledge and no intimation of such family settlement was given to the plaintiff, who is their creditor, shows that there is a serious lack of bona fide on the part of the defendants. I am inclined to accept that the attempt made by the defendants to transfer the property was with the intention to delay and defeat the decree that may be passed against them.
' In these circumstances, prima facie the property still remains either in the name of the defendant No, 3 or defendant No, 7 and the plaintiffs are entitled for an attachment before judgment. 1, therefore, order that plot of land bearing No, 440/1/1 situated at Lawrence Road, Karachi, is attached before judgment and shall remain under the attachment of this Court, till further order.