' This application under section 115 of Civil Procedure Code has been filed against the order passed by the IIIrd Additional District Judge, Karachi (East) on 6-11-1989 in Civil Misc. Appeal No,124 of 1989 dismissing the appeal filed by the applicant against the order dated 12-7-1989 passed by the IIIrd Senior Civil Judge, Karachi (East) in Execution Application No,8 of 1989. The facts giving rise to the filing of the present application, as stated in the plaint, are briefly stated as under:-- ' The applicant invested a sum of Rs,47,000 with the respondents Nos. 1, 2 and 3 on the condition that he shall be paid a profit of Rs,2,800 per month. The said respondents did not pay the amount of profits to the applicant for the months of March, 1988, and onwards which necessitated filing of the suit. The applicant filed a suit for recovery of the said amount, permanent injunction and attachment before judgment. The applicant, besides impleading the first three respondents as the defendants, also impleaded Assistant Director F.I.A, Crime Circle 2, Saddar, Karachi, and one Mst.Asifa. The Assistant Director F.I.A, was impleaded as a defendant in the suit primarily because a Honda Accord Car bearing Registration No, 142-056 was seized by the said authority in the investigation of a case. The plaintiff claimed attachment of that car in the plaint. The suit was filed on 15-10-1988. Out of them Mst. Asifa, defendant No,5, in the suit appeared and filed a written statement while the other defendants preferred to remain absent throughout, with the result that ex parte proceedings were taken against them. On the basis of the pleadings of the parties the trial Judge framed three issues as under:--
(1) Whether the plaintiff invested Rs,47,000 with defendants Nos.1 and 2 and is entitled for its recovery with profit at the rate of Rs,2,800 per month?
(2) Whether the defendants cannot sell, dispose of or transfer Honda Accord Car 142-056?
(3) What should the decree be?"
2. The plaintiff/applicant examined himself and produced certain agreement of investment and receipts and closed his side while the defendants in the suit did not lead any evidence. Ultimately the trial Judge, by his judgment passed on 7-3-1989, decreed the suit to the extent that the applicant was entitled to recover of Rs,47,000 with profit at the rate of Rs,2,800 per month from the date of the investment till realization of amount. As a result of above judgment, a decree was prepared against the first three respondents only to the extent of payment of principal amount with profits.
3. Neither of the two parties preferred any appeal against this judgment and decree.
4. The applicant, after some time, filed an application dated 3-6-1989 seeking review of the judgment and decree passed in the suit on the ground that they had discovered that the Honda Accord Car was actually registered in the name of respondent No,3. They, therefore , prayed that the judgment be reviewed to include a finding that respondent No,3 is the owner of the Honda Accord Car. Another application was filed on 8-7-1989 seeking attachment of the Honda Accord Car in execution proceedings filed by him. Both these applications were, however, dismissed by the original Court. The attachment of the Honda Accord Car was refused, as according to the trial Judge, it was not established that respondent No,1 are the owners of the car. The applicant also did not succeed in appeal filed against the order refusing to attach the Honda Accord Car before the IIIrd Additional District Judge (East) Karachi.
5. Mr. Ameer Ahmad Khan, Advocate for the applicant, mainly contended that both the Courts below have acted illegally, as they did not apply judicial mind to the facts of the case and have in a cursery manner dismissed his request for attachment.
6. Out of the respondents, Mr. Muhammad Saleem, Advocate appears for respondent No,4.
According to him the car was seized by respondent No,4 in a case of fraud by investment company and was secured from the possession of respondent No,1, who is admittedly the managing director of the investment company. He has pointed out that the application for attachment of the car in dispute was dismissed by, the executing Court primarily because a finding was recorded in the judgment itself that respondents Nos.1 and 2 are not the owners of it. There is, however, no finding of the ownership of the car with regard to respondent No,3. To that extent the finding of the two Courts below is contrary to the record and the executing Court ought to have permitted the applicant to record evidence, if any, to support his claim made with regard to the ownership of the car by respondent No,3.
Mr. Muhammad Saleem, Advocate for respondent No,4, in view of his submission mentioned above, very frankly stated that it may perhaps be a case for remand.
7. It appears that both the Courts below have misdirected themselves to the facts of the present case, as the applicant throughout has been insisting that it is the respondent No,3, who is the owner of the car in dispute and a valid decree has been passed against him as well for realization of the decrial amount. Under the circumstances the executing Court ought to have permitted the applicant to lead evidence to establish his case instead of disposing it of in a cursory manner by passing the order without any reasons. Both Courts, had in fact rightly found that car in question was not owned by respondents Nos.1 and 2. The attachment of car was sought on the ground that it belonged to respondent No,3 according to its registration book.
8. In view of the foregoing reasons, the orders impugned in this revision application are set aside and the case is remanded to the executing Court for allowing both the parties to adduce evidence in support of their respective claims and decide the same on merits in accordance with law with no order as to costs.