1. ' USMAN ALI SHAH, J.--The petitioners seek leave against the judgment and order of the Lahore High Court, Lahore dated 11-11-1987, passed against them in FA.O. No,129 of 1987.
2. ' The facts of the case are briefly stated that on 18-12-1975, the respondent No,1 herein sanctioned a loan to the tune of Rs,14,49,427 to Premier Textile Mills (Pvt.) Ltd. For opening letter of credit for the imports of textile machinery. Under the Companies Act, the said textile mills applied for rearrangements which was sanctioned on 26-3-1976 in Civil Original No,16 of 1975, resulting in the division of the said mills into the following three independent units:--
(a) Hudaybia Textile Mills (Pvt) Ltd.
(b) Zulfiqar Associates (Pvt) Ltd.
(c) A.B.M. Associates (Pvt) Ltd.
3. ' The directors of these new independent units undertook to be liable jointly and severally for the liabilities of the defunct Premier Textile Mills (Pvt) Ltd. The movable assets of the said Mills were distributed amongst the new units at the spot and that of the immovable assets were agreed upon to be rateably distributed after the sale of the assets.
4. ' M/s. Allied Bank of Pakistan Ltd. Filed a suit on 30-9-1981 for the recovery of a sum of Rs,44,95,039 outstanding against the newly constituted units before the Court of Special Judge (Banking)
5. Lahore. During the pendency of the suit the A.B.M. Associates (Pvt) Ltd. Went in liquidation, whereafter the Special Judge directed that the suit will proceed against the remaining two companies. The suit was decreed in the sum of Rs, 65,60,651 vide his judgment dated 30-10-1984.
6. Petitioner No,1 did not challenge this order but only Hudaybia Textile Mills (Pvt) Ltd. Filed appeal against the same which was dismissed on the point of security which was not deposited at the time of filing the appeal.
7. ' Respondent No,1 filed an application for the execution of the decree and the property of both the units was attached by the Court on 10-6-1985. The movable property of Hudaybia Textile Mills was auctioned on 16-9-1985 through the Court's auctioneer who submitted the report to the executing Court. The highest bidders were Rao Muhammad Suleman and Sheikh Muhammad Shafique. On 18-9-1985, Hudaybia Textile Mills (Pvt) Ltd. Filed an application (C.M. No,103 of 1985) praying that the auction is not to be confirmed. The learned executing Judge vide order dated 6-5-1986 accepted the application and refused to confirm the auction for the reason that Hudaybia Textile Mills has paid its entire share of decretal amount to the decree-holder Bank.
8. ' Rao Muhammad Suleman one of the auction purchasers filed FA.O. No,138 of 1986 challenging the order dated 6-5-86 and respondent No,1 was also impleaded as party in the said appeal. The learned counsel appearing on behalf of respondent No,1 admitted that his client has received Rs,35,00,000 as final satisfaction of the decretal amount payable by the Hudaybia Textile Mills (Pvt)
9. Ltd. And said that if the auction is confirmed the said amount paid by the auction purchaser would go to Hudaybia Textile Mills and if not confirmed the property will go back to the judgment-debtor and the auction purchaser will be entitled to receive back his money paid by him. The said appeal was accepted vide judgment dated 13-4-1987 which order was not interfered by the Supreme Court.
10. ' Petitioner No,1 also filed C.M. Nos. 96 and 97-B of 1987 before the executing Judge with a prayer that Rs,35,00,000 paid by Hudaybia Textile Mills to the respondent No,1 is not to be returned to the said company and may be adjusted towards the payments of the entire decree including the share of the petitioner No,1. The said application was dismissed by the executing Judge vide his judgment dated 27-9-1987 and issued certificate of sale of property of M/s. Hudaybia Textile Mills Ltd. Because the auction had already been confirmed by the Supreme Court.
11. ' Aggrieved by the said order of the executing Court dated 27-9-1987, the petitioners filed appeal in the Lahore High Court, Lahore. A learned Division Bench of the Lahore High Court, Lahore, after hearing the appeal dismissed the same in limine vide order dated 11-11-1987. Hence this petition for leave before this Court.
12. ' We have heard the learned counsel for the petitioners and perused the record. The learned counsel contended that the amount paid by M/s. Hudaybia Textile Mills (Pvt) Ltd. Is not to be returned to the company but should be adjusted towards the full decretal amount including the share of liability of the petitioner No,1 because that was in conformity with the decree, wherein all the judgment-debtors were jointly and severally responsible for payment of the decreed amount to the decree-holder. The record shows that Rs,35,00,000 were paid by M/s. Hudaybia Textile Mills not towards the satisfaction of his part of liability of the decreed amount but it was a contrivance adopted to avoid the sale of their property by auction. As the auction of the said Mills had already taken place for the recovery of the decretal amount and the auction was confirmed as such this amount was returnable to M/s. Hudaybia Textile Mills. There seems to be no interest on the part of the petitioner in the said amount, therefore he cannot say that the said amount be adjusted towards the entire decretal amount. In view of the fact that the immovable property of the parent Mills was partitioned in equal shares between the two units, therefore, the petitioner No,1 has no right to say that the entire amount be recovered from the Hudaybia Textile Mills (Pvt) Ltd.
13. The learned counsel for the petitioner raised the same contention which was already raised before the learned High Court in appeal upon which the learned Judges of the Division Bench of the High Court have arrived at a correct conclusion. The learned counsel could not make us understand the underlying purpose of the petitioner and hence, we find no merit in this petition, which is accordingly dismissed.