1. ' Reasons for the short order announced earlier in the day whereby C.MA. No,2998 of 1991, was dismissed.
2. ' One Fariduddin was defendant No,5 in the suit and after his service he engaged an advocate and for some time pursued the suit but eventually he elected to remain absent and the suit was decreed ex parte against him on 22-4-1986. He, however, slept over the matter and on 16-10-1991 moved an application (C.MA. No, 2017 of 1991) in the file of the main suit, under Order 9, Rule 13, C.P.C., on the ground that he was not served, and his signatures on the summons were forged and that he had not engaged any advocate and his signatures on the Vakalatnama were forged. This application was moved when his property bearing Plots Nos. 182/27 and 183/27 was attached. This application was dismissed by me a few days ago vide order, dated 6-5-1992 in the file of the main suit (Suit No,330 of 1981).
3. ' This Fariduddin's father Qayamuddin has moved this application (C.M.A. No,2998 of 1991) and he claims that these plots (Plots Nos.182/27 and 183/27) were not the property of Fariduddin defendant No,5 but of the partnership firm Messrs Akka Industries of which Fariduddin was only a working partner and per partnership deed he had no concern with the property and assets of the firm and, therefore, the attachment was illegal. Qayamuddin has, therefore, filed these objections under Order 21, Rule 58, C.P.C. and his learned counsel prays that issues should be framed and the applicant should be allowed to lead evidence in support of his claim and in the meantime the execution proceedings should be stayed.
4. ' I was referred to clauses 5 and 11 of the partnership deed (Annexure "F" to C.MA. No,2998 of 1991) which read as follows:-- "5. That the capital required for the business of the partnership shall be contributed by the First Party only. The Second Party and the Third Party shall not invest any capital in the business of the partnership and shall only be the working partners.
11. That the goodwill of the Firm Akka Industries and all the rights in the movable and immovable assets of Akka Industries shall exclusively vest in the First Party. The Second Party and the Third Party shall not at any time either, during the continuance of the partnership or at the time of retirement of the Second Party or the Third Party have any claim in the goodwill of Akka Industries and in the movable and immovable properties which shall always remain the exclusive property of the. First Party. In case of dissolution of the partnership or in case of retirement of either the Second Party or the Third Party, the working partners in case of dissolution and the retiring partner, in case of retirement, shall only be entitled to have the amount standing to his credit in the balance-sheet on the date of dissolution or retirement as the case may be."
5. ' Learned counsel then pointed out that Plot No,183/27 was leased to Messrs Akka Industries by the K.DA. vide lease deed dated 18-12-1986 (Annexure "E" to the application). However, decree-holder in his counter-affidavit says that this plot was originally allotted by K.DA. to one Abdur Rehman vide allotment order, dated 10-8-1966 and then Abdur Rehman sold it to judgment-debtor Fariduddin through a registered irrevocable power of attorney dated 19-11-1969 in his favour (sale of plot by an allottee being illegal at that stage, this subterfuge was adopted to circumvent the law), that a sale-agreement dated 16-7-1985 was then executed between judgment-debtor Fariduddin and Messrs Akka Industries on 16-7-1985 and the plot was transferred and entered into the name of Messrs Akka Industries. It was alleged that this step was taken to save the property from attachment and sale as the suit was at the last stage of trial (it was decreed on 22-4-1986) and thus it was a fraudulent transfer by judgment-debtor Fariduddin to Messrs Akka Industries which was a partnership concern of judgment-debtor Fariduddin and his father and brother.
6. ' I have gone through the affidavit filed by objector Qayamuddin in support of his application and through all the documentary evidence produced by the objector. I am satisfied that sale of disputed plot by judgment-debtor Fariduddin to the firm Messrs Akka Industries (which consisted of himself, his brother and his father) amounts to dishonest transfer of property to save it from imminent attachment and sale.- The suit was complete and at the last stages when this transaction took place. The mala tides of the transaction are apparent on its very face. Learned counsel of the objector desires that specific issues should be framed and the objector should be allowed to lead further evidence. However, the objector has already led all the documentary evidence which he possibly could and he could not disclose what further evidence he could possibly lead in support of his claim nor he could disclose why such further evidence was not produced with this application or even till today. A period of 7 months has passed since the filing of this application on 16-10-1991 and during all this period the objector never expressed any such intention. He is not even present in person to pursue his application or to submit himself to cross- examination. I am satisfied that these objections filed by the father are as mala fide as the application of the son under Order 9, Rule 13, C.P.C. I find no merit in it and dismiss the same.
7. ' Before parting with the file, I wish to observe that reference made by learned counsel of the decree-holder to section 51 and to clause (a)(ii) to its proviso is irrelevant because this proviso is in relation to the execution of a decree by arrest and detention of the judgment-debtor which point is not under discussion here.