1. ' This is an application under section 39 of the I.D.B.P. Ordinance, 1961. According to the case of the petitioners, the respondent No,1 had been granted local currency loan of Rs,1,298,000 in March 1980 for setting up Steel Re-rolling Mills at Hub Chowki, District, Lasbela. The respondents Nos.2 to 5 were guarantors for the said loan as they had executed an agreement of guarantee, a copy of which has been filed as Annexure-E with the petition. At the time of filing of the petition the liability of the respondents was Rs,22,46,782.45 as on 15-2-1989 which also included interest due from the respondents.
2. On 9-4-1989, an ad interim order of attachment under section 39 (3) of the aforesaid Ordinance had been passed by the Court for attachment of the properties of the respondents and one of the properties affected by this Order was House No,8-A/II situated at the 3rd Gizri Road, Phase IV, Defence Housing Authority, Karachi. This property admittedly belonged to the respondent No, 3, A Mrs. Shamim Ghaznavi, but according to the case of the intervenor, namely Lubna Ashfaque, who has filed an application under Order 21, rule 58, C.P.C. (CMA No, 2567/1989), this property had been agreed to be sold to her by the respondent No, 3 in September, 1988. Thereafter according to the complainant, full consideration of Rs, 11,00,000 was paid by the said intervenor to the respondent No,3 vide pay order No,180042 dated 17-9-1988. The respondent had also executed a registered power of attorney in favour of the intervenor's husband, namely t Muhammad Ashfaque Hussain, on the same day, that is, 17-9-1988. The possession of the property was also handed over to the said intervenor on the said date as is evident from the agreement of sale, a copy of which has been filed alongwith the intervenor's petition as Annexure-A. Thereafter, on 25-5-1989, the property, according to the intervenor, was finally transferred to her by a registered conveyance deed. Photo copies of all the relevant documents have been annexed with the intervenor's application as Annexures-A to E. In view of the said factual position, the contention of Mr. Muneer A. Malik, learned counsel for the intervenor, is, that, the said property may be exempted from attachment or sale.
3. ' This request is vehemently opposed by Mr. Iqbal Siddiqui, learned counsel for the petitioners. The learned counsel has invited my attention to section 64 of the Civil Procedure Code which provides as under:-- "64. Private alienation of property after attachment to be void...._ Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment shall be void as against all claims enforceable under the attachment. Explanation.- - for the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets."
4. ' Mr.Muneer A. Malik, has, however, invited my attention to a large number of cases wherein it has been held that attachment of the property of the judgment debtorwould not invalidate the sale made in pursuance of an agreement of sale entered into prior to the date of attachment. Reliance has been placed by Mr.Muneer A.Malik upon the following cases:--
(1) AIR 1952 T C467.
(2) AIR 1939 Born.
5. 492.
(3) AIR 1935 Mad. 87/
(4) PLD 1962 SC 119.
(5) (35) Indian Cases 953.
6. ' Although there can be no cavil with the dictum laid down in the aforesaid cases, which fully supports Mr. Muneer A.Malik's contention, but the contention of Mr.Iqbal Siddiqui firstly is, that, the respondent No,3 was already aware of the petitioners' intention to proceed against the respondents for recovery of the aforesaid amount as the respondents had already received a number of legal notices from the petitioners between 9-7-1987 and 19-2-1989. The learned counsel has also invited my attention to the documents filed as Annexures A, B and D wherein some blanks have been left unfilled by the parties, which, according to the learned counsel clearly indicates that the said transaction was entered into with a view to defraud the petitioner-bank and was, therefore collusive.
7. It may be pointed out that although, in this regard, the learned counsel may be right so far as the respondent No,3 is concerned, however, there is nothing to indicate that the intervenor was also acting in collusion with the respondent No,3. No doubt, the agreement of sale (Annexure A) and the receipt' (Annex. B) are undated and no plausible explanation can be offered in this regard even by the learned counsel for the intervenor, himself but to hold that the said transaction between the respondent No,3 and the intervenor was collusive, substantial evidence is required to be produced by the petitioners. There, in fact, appears to be nothing to show that the intervenor has acted in collusion or league with the respondent No,3. No doubt, the sale was finally concluded on 25-5- 1989 when a registered conveyance deed was executed by the respondent No,3 in favour of the intervenor which was after the property was ordered to be attached by the Court, but that cannot affect the commitment already made by respondent No, 3 to the intervenor, as was held in the cases cited by Mr. Muneer A. Malik, reference to which has earlier been made in this judgment. It is further pertinent to point out that, according to the documents filed by the intervenor, a full consideration for the property had been received by the vendor on 17-9-1988 which was prior of the passing of the order of attachment by the Court. That lends further support to the case of the intervenor, and if her plea is not accepted she may have to sustain a substantial loss. For the reasons enumerated above, the request made by the intervenor has to be accepted.
8. ' As far as the case of the respondents is concerned, none of them has come forward to defend the petition or to show-cause why an ad interim order of attachment may not be made absolute.
9. ' In the result, the order of ad interim attachment dated 9-4-1989 is made absolute and the properties of the respondents are ordered to be sold. However, the property of the intervenor, namely, House No,8-A/2, 3rd. Gizri Road, Defence Housing Authority, Karachi, shall be exempt from sale and the ad interim order of its attachment is recalled. Both the main application as well as CMA No 2567/1989 stand disposed of.