1. The plaintiff has filed the suit for recovery of Rs.55,73,790. The brief facts of the suit are that the plaintiff entered into a contract with defendants Nos. l and 3 for the import of polywinyl chloride P.
2. V. C. Gost for a quantity of 543 metric tons and established Letter of Credit as per intent issued by M/s. Al---Riaz Agencies, defendant No. 3 who are local agents of defendant No. l Korean Firm/suppliers. Defendants Nos. l and 3 insisted for the enhancement of the Unit price by U.S. Dollars 70 per metric ton, which displayed weakness of the supplier concerned. However, the plaintiff agreed to enhance the unit price but the defendants l and 3 did not honour their contractual obligations and made only two part shipments, one of 81 metric tons and the other of 79.50 m/tons and thereafter the defendants Nos. l and 3 kept silent for the shipment of the balance quantity. The plaintiff wrote letters to the defendants and also addressed letter to the Commercial Attache, South Korea Trade Office at Karachi to resolve the matter but the efforts made by the plaintiff did not bear fruits, therefore, as a last resort, the plaintiff approached the Korean Commercial Arbitration Board at Seoul, Korea. According to the plaintiff the defendants have no any movable or immovable properties in Pakistan which could be sought to be attached. But another party namely M/s. Prime Star Industries (Pvt.) Ltd., Peshawar had opened L/C in. Favour of the defendant No. l in Allied Bank of Pakistan Ltd., Peshawar Cantt. Branch, Peshawar for U.S. $ 101,760 which will be matured by 12-10-1995 and another L/C in favour of defendant No. l established by M/s. Ghelli Trading Corporation on Schon Bank Ltd., Karachi Branch, Karachi for U.S. $ 96,673 be matured on 14-10-1995. The prayer of the plaintiff is as follows:---
(a) For judgment and decree in favour of the plaintiff against the defendants jointly and severally for a sum of Rs.55,73,790 with interest the Bank rate till realisation of the claimed amount;
(b) cost of the suit;
(c) any other relief as deemed fit and proper in the circumstances of the case.
3. The plaintiff moved an application bearing No.C.M.A.5058/95 under Order 21, Rule 46/47, C.P.C., read with Order 38, Rule 5 and section 151, C.P.C. And on this application this Hon'ble Court passed the following order dated 8-10-1995;
(2) Notice for 12-10-1995. Ad interim injunction as prayed is granted till then.
4. On 21-1-1996 this application was dismissed for non-prosecution. Thereafter Mr. Raja Qureshi, Advocate filed urgent application bearing No.C.M.A. 376/96 which was granted on 23-1-1996 and on 24-1-1996 the arguments on C.M.As. 377/96 and 378/96 were heard.
5. C.M.A. 377/96 I have heard Mr. Raja Qureshi, learned counsel for the plaintiff, Mr. Mansoorul Arfm, learned counsel for defendant No.1 and Mr. Arshad Tayyebally learned counsel for Garnishee. Mr. Raja Qureshi has contended that the plaintiff has filed the suit for recovery of Rs.55,73,790 against defendants Nos. 1 and 2, who have note any movable or immovable properties in Pakistan except 2 L/Cs opened in their favour by M/s. Prime Star Industries (Pvt.) Ltd, Peshawar in Allied Bank of Pakistan; Peshawar Cantt. Branch and another by M/s. Ghelli Trading Corporation on Schon Bank Ltd., Karachi Branch, Karachi. The defendant No.3 is the local agent of defendants Nos.1 at 2 Karachi and details of their movable or immovable: properties at Karachi are not ascertainable to the plaintiff. Unless the application is allowed the plaintiff will be seriously prejudiced. The counter-affidavit on behalf of defendant No.4 Granishee Mr. Liaquat A.I Khan has been filed. The relevant paragraphs of the C/A are reproduced as under: "(2) That M/s. Prime Star had opened L.C. With Allied Bank/Garnishee in favour of defendant No.1, of U.S. Dollars 101760 which was payable to defendant No.1, through National Bank of Pakistan Seoul Korea on 12-10-1995.
(3) That the said amount of L.C. Could not be transferred to Seoul Korea due to the injunction granted by this Hon'ble Court on 8-10-1995, as such defendant No.1, did not export goods to M/s. Prime Star in Pakistan.
(4) That the amount of L.C. Lying with the answering granishee is now the property of M/s. Prime Star and not of defendant No. 1, because so long the goods are not exported to Pakistan, the money shall remain the trust money of M/s. Prime Star and defendant No. l will export the goods to Pakistan only after receipt of L.C. Amount by the Bank in Korea working on behalf of defendant No. 1.
6. The money of L.C. Can only be detained when it becomes the property of defendant No. 1.
(5) That garnishee has also suffered a loss of Rs.263,101.48 due to devaluation of Pakistan rupee by Government of Pakistan as on 12-10-1995, Dollar rate of exchange in Pakistan currency was Rs.31.8701 but on 8-11-1995, the exchange rate of Dollar was Rs.34.4556 due to which the answering garnishee will have to suffer loss of Rs.263,101.48 on total amount of L.C. In U.S. Dollars 10760.
7. One Mr. M. Naseem Elyas son of Muhammad Elyas, Vice-President of the Schon Bank Ltd., garnishee No.5 filed counter-affidavit on behalf of Garnishee No.5. The relevant paragraph is reproduced as under: "4. That I also read the plaint of the suit and I am advised by our counsel, which is believed to be true, that the case of the plaintiff is merely for damages, for breach of contract and for non- delivery Even assuming that the supplier has failed to deliver the entire quantity of the cargo, under the law, the plaintiff is entitled merely to the difference between the contract price and the prevailing market rate on the date of breach. The foundation of the suit is entirely vague and the suit is liable to be dismissed."
8. One Mr. Won Moo Ayun son of Won Suk Jun, Officer of defendant No.1, filed a detailed counter- affidavit which is duly attested by Additional Assistant, Embassy of Pakistan at Seoul, Korea, and also attested by Ministry of Foreign Affairs, Korea. The relevant paragraphs of the C/A are as follows:---
(a) That the Defendant No.3 had entered into a contract dated 13-4-1994 with the plaintiff whereby the plaintiff confirmed of having sold to the said defendant No.3 1000 Metric Tons of Polyvinyl Chloride (PVC) of C.I.S. Origin, C & F Karachi at U.S. $ 630 per Metric Ton. In the contract it was agreed that the Letter of Credit is to be opened by 18-4-1994.
(b) That, according to clause 12 of the contract, it was agreed that all disputes will be submitted for arbitration of the defendant No.2 and the award shall be final and binding on both parties concerned. The arbitration proceedings have been commenced by the plaintiff and are still pending with the defendant No.2.
(c) That the defendant No.3 seems to have entered into a separate contract with M/s. Tariq Brothers, Karachi and issued to them a contract No. ARA/94/Hyosung/112 dated 14-4-1994 for 500 metric tons of the good in question. This defendant had not authorised defendant No.3 to transfer its contract to any third party and it is obvious that the contract into between defendant No.3 and M/s. Tariq Brothers is a separate contract between these two parties.
(d) Although the contract was between the defendant No.2 and M/s. Tariq Brothers but there was no contract with the plaintiff. The contract which is filed with the plaint by the plaintiff as Annexure '
9. A' was neither signed by this defendant nor by the defendant No.2. However, the plaintiff opened a Letter of Credit in favour of the defendant No.1 which was advised to the defendant No. l by Shin Han Bank, Seoul, South Korea. The Letter of Credit was opened through Habib Bank Ltd. And whatever quantity this defendant could supply at the price mentioned in the Letter of Credit, the same was done. There was no privity of contract between the plaintiff and the defendant No. 1.
(e) That without prejudice to the above, I state that even the Letter of Credit opened by the plaintiff was not as per the contract between this defendant and the defendant No.3 and this Letter of Credit was opened after the validity time mentioned in the contract between the defendant No. l and the defendant No.3. The partial shipment as per the Letter of Credit was made of about 160 metric tons and since no other goods were available at the L/C price from I.C.S. Countries, the balance goods could not be shipped. The plaintiff has been unilaterally and without any request from this defendant extending the shipment date. Firstly it was extended up to 30-6-1994 and then up to 15-1-1995. After the expiry of the shipment date as per Letter of Credit, neither there was any request from this defendant to extend the shipment date nor this defendant agreed to the shipment date as extended by the plaintiff.
(f) Without prejudice, even if the contract marked "A" between the plaintiff and the defendant No.3 is to be taken as a contract between the defendant No. l and the plaintiff (which fact is not admitted), it is clear that the plaintiff was required to increase the price of the goods as all the increases in the price were at the buyer's risk. The plaintiff has not filed the reverse side of the contract. However, it was supplied to this defendant's counsel subsequently and under heading "other conditions" it was agreed by the plaintiff that any increase in price shall be at buyer's account. The increase in the price was duly intimated to the plaintiff and the defendant No.3 but the plaintiff did not amend the Letter of Credit in respect of the increase of the price."
10. At the time of hearing of arguments Mr. Raja Qureshi was asked to satisfy the Court so far as maintainability of the suit in the present form about the jurisdiction of the Court is concerned and whether this application is also maintainable or not. Mr. Mansoorul Arfin, Advocate has contended that the suit is not maintainable and so also the application is not maintainable and this Court has absolutely no jurisdiction to hear the matter as per agreement between the parties and plaint as also the matter is pending adjudication between the Korean Commercial Arbitration in Seoul and the matter has been referred there at the instance of the plaintiff and that defendant No.2 Director of Korean Commercial Arbitration Board has no concern whatsoever with the suit and only the matter referred to the Arbitration Board at Korea is to be decided by them. That even in the suit itself damages are not claimed. No cause for grant of application is made out. Mr. Arshad Tayyebally, learned counsel for Garnishee has contended that the plaintiff is seeking attachment for the letter of credits for which he has no concern. The Advising Bank has already paid the amount and that he has to pay to the Advising Bank. His client has no knowledge whether the plaintiff and defendant No.3 having entered in this dispute or other disputes. Mr. Raja Qureshi has cited the following case-law:---
(1) PLD 1970 SC 373 (M.A. Cowdhury v. Messrs Mistui O.S.K. Lines Ltd. And 3 others).In this authority 3 Hon'ble Judges of the Supreme Court comprising of Hamoodur Rahman, C.J., Abdus Sattar and M.R.
11. Khan, JJ. (as they then were) have held:--- "I am of the opinion that in order to preserve the sanctity or contracts I ought also to hold, as was done in the earlier cases in Great Britain that such foreign jurisdiction clauses, even when they purport to give jurisdiction to a Court in a foreign country, are really in the nature of arbitration clauses which come within the exceptions to section 28 of the Contract Act and, therefore, should be dealt with in the same manner as other arbitration clauses. In the case of an arbitration it has to be remembered that the jurisdiction of the Courts is not altogether ousted, for, the Courts merely stay their hands to allow the parties to resort to the form of adjudication to which they have previously agreed. By only staying the actions before them the Courts still retail to themselves the jurisdiction to resume the case if the arbitration, for any reason, fails or the parties find it impossible to comply with the form of adjudication to which they had agreed."
(2) PLD 1975 Karachi 707 (Provincial Industrial Development Corporation, Karachi v. Sh. Muhammad Amin & Co., Lyallpur). In this authority Hon'ble Dr. I. Mahmud, J. (as he then was) has held:--- "In this connection section 60 of the Sale of Goods Act, 1930 is relevant, which states that where either party to a contract of sale repudiates the contract before the date of delivery, the other party may either treat the contract as subsisting and wait till the date of delivery, or he may treat-the contract as rescinded and sue for damages for the breach. In either case, the measure of damages is the difference between the contract price and the market price prevailing on the due date of delivery. The measure of damages is not affected by the date of the buyer's repudiation and is the difference between the contract price and the market price on the day when the goods ought to have been accepted."
(3) PLD 1978 Kar. 273 (M/s. Mercantile Fire and General Insurance Co. (Pak), Karachi v. M/s. Arcepey Shipping Co., U.S.A. And another). In this authority Naimuddin, J. (as he then was) has observed:--- "Common Carrier---Contract---Bill of landing---Suit for recovery of value of consignment short landed---Exclusive jurisdiction clause in bill of landing not honoured---Carrier's (defendant) principal office in foreign country but agent in Karachi---Defendant applying for stay of suit in view of arbitration agreement after filing written statement----Application for stay dismissed."
12. (4)1982 CLC 1409 (Colony Thal Textile Mills Ltd. v. Messrs Zahid & Brothers). In this authority Muhammad Afzal Lone, J. (as he then was) has held: "The rule that a debtor must seek the creditor, essentially concerns the territorial jurisdiction of a Court and involves the performance of the contract, as to the repayment of money due to the creditor at a place where he resides. It is well-settled that section 21 makes an exception to the rule laid down in section 20, C.P.C. And passing of a decree in violation of section 20 by a Court not having territorial jurisdiction, is not fatal to its validity. It is open to a party, not to raise any objection to the place of suing or the territorial jurisdiction of the Court. Thus the respondent having declined to appear in the trial Court, despite service would be deemed to have waived off its objection to the territorial jurisdiction of the Court. It was thus not necessary for the learned Courts below who have suo motu determined the question of their territorial jurisdiction and under Order VII, rule 10, C.P.C., return the plaint to the petitioner."
(5) PLD 1985 Karachi 745 (Messrs Aslo Marines Ltd. v. M.T. Magda and another). In this authority Naimuddin, J. (as he then was) has held: "Messrs Aslo Marines Limited have filed this suit under admiralty jurisdiction against 'M.T. Magda', an ocean-going oil tanker, defendant No. l (hereinafter individually called 'the Vessel') and her owner Atalanta Shipping Company Limited, a company incorporated and registered in Cyprus, defendant No.2 (hereinafter individually called 'the Vessel Owners') claiming a sum of Rs.13,02,728.70 as damages on account of short-landing of the oil cargo at Karachi.
2. It is the case of the plaintiffs in the plaint that under 4 charter--parties, 'the Vessel Owners' 'the Vessel' to the plaintiffs for carrying crude oil from Rastanura and Jebel Dhanna (Saudi Arabian Ports) for carriage by sea to Karachi.
3. Accordingly the Vessel' carried the oil but short-landed certain quantity mentioned in the plaint.
13. Therefore, the plaintiffs have brought the present suit for damages as already stated in admiralty jurisdiction for this Court."
(6) 1991 MLD 1232 (Messrs Javed Garments Industries v. Messrs Grain Lodge Limited). In this authority Abdul Rahim Kazi, J. (as he then was) has held: "I have heard Mr. Syed Ishtiaq A.I, Advocate for the plaintiffs who is present while none is present for the defendants. Mr. Syed Ishtiaq A.I learned counsel for the plaintiffs has submitted that the documents placed on record i.e. Contratcs, bills of landing, invoices and the correspondence between the parties fully substantiate the case of the plaintiffs and since they have chosen to remain absent and have failed to contest the suit, the suit ought to be decreed as prayed. "
14. Mr. Mansoorul Arfin has contended that this Court has no jurisdiction in the matter and there is no privity of contract between the plaintiff and defendant No. 1. That defendant No.2 has been wrongly sued as it is a Court of Commercial Arbitration Seoul, Korea and has not entered into any contract with the plaintiff. That the plaintiff having submitted itself to the arbitration before the defendant No.2 cannot file the suit and/or sue and/or continue with the same. That defendant No.1 is very large trading house in South Korea and has no occasion to have any property in Pakistan. However, merely non-possession of the property does not entitle the plaintiff to pray for the .Attachment of the amount in question. That event the two Letters of Credit which were opened in favour of the defendant No.1 by Prime Star Industries (Pvt.), Peshawar and by M/s. Ghelli Trading Corporation are concerned, the amounts thereunder were payable under Bills of Exchange to Shin Han Bank by the importers mentioned above. As far as this defendant is concerned the Shin Han Bank has already paid the amounts to it by the Advising Bank M/s. Shin Han Bank, South Korea as per their certificate duly Notarized and also certified from the Pakistan Embassy, Seoul, South Korea. That even otherwise according to the terms and conditions of the Letters of Credit, the issuing Banks are bound to pay the amounts in Seoul to the negotiating Bank i.e. Shin Han Bank. That no amounts are payable by the issuing banks at Karachi or Peshawar and whatever amount was and/or is payable only at Seoul, which is outside the jurisdiction of this Court. That, the debt, if any, is situated at Seoul, neither at Karachi nor at Peshawar. That no ground has been made out by the plaintiff either in the suit or in the application for attachment. Mr. Mansoorul Arfin has referred the following case-law:-- -
(1) A.I.R. 1934 Sind 135(1) Michelin Tyre India Ltd. v. Jeewandas & Sons. Wherein Rupchand, C.J. (as he then was) has observed: "Where a debt is really payable at a place outside British India and if the assignment of this debt is also made at that place then a Court in British India has no jurisdiction to attach the debt merely and solely on the ground that the debt is payable by an officer who is in-charge of both the places."
(2) 1974 SCMR 519 (Marghub Siddiqui v. Hamid Ahmad Khan and 2 others). Wherein A.R. Cornellus, C.J. And Hamoodur Rahman, J. (as they then were) have observed: "The first is that in a suit where no perpetual injunction is claimed to question of granting ad interim injunction can possibly arise. In the present case the application for ad interim injunction should have failed on this ground alone. "
(3) 1985 CLC 261 (Aijaz Hussain Bhatti and another v. Haji Bagh A.I and 9 others). In this authority K.A.
15. Ghani, J. (as he then was) has observed: "Thus, the plaintiffs having not claimed any relief in the suit for grant of permanent injunction, their application for the grant of ad interim injunction is liable to be dismissed on this sole ground."
(4) 1986 CLC 303 (Messrs Iftikhar & Co. Ltd. v. Uzin Export-Import Enterprises for Foreign Trade, Baluchistan). In this authority Abdur Rehman, J. (as he then was) has observed: "No temporary injunction could not be granted to the respondent in respect of encashment of Bank guarantee and performance bond in view of the principle laid down in 1974 SCMR 519. "
(5) 1987 CLC 1533 (Messrs Kohinoor Trading (Pvt.) Ltd. v. Mangrani Trading Co. And 2 others). In this authority Ajmal Mian and Muhammad Mazhar A.I, JJ. (as they then were) have observed: "An irrevocable Letter of Credit is a negotiable document in the commercial world which is negotiated inter alia inter se between the banks and, therefore, the Court cannot lightly cause its dishonouring by one bank to another, unless prima, facie a sufficiently grave cause is shown. "
(6) 1986 MLD 1356 (Uzin Export Import Enterprises for Foreign Trade v. Messrs Asia Steel Industrial Aids Ltd. And 4 others). In this authority Abdul Qadeer Chaudhry and Haider A.I Pirzada, JJ. (as they then were) have observed: "When the prayer in the suit is for a decree jointly and severally against all the defendants then why UZIN, has been singled out for the temporary relief. The learned Single Judge has held that "the conditions required to be satisfied by a plaintiff before an order for attachment before judgment of the properties of the defendants can be passed have not been satisfied by the plaintiff. The pleadings do not show prima facie that UZIN with intent to obstruct or delay the execution of the decree that may be passed against Uzin in the present suit is about to dispose of the whole or any part of its property". It has been further observed that "it is not prima facie established that UZIN has repatriated any amount with intent to obstruct or delay the execution of the decree that may be passed against UZIN, and he is also not inclined to grant temporary injunction restraining defendant No.3 from making payment of any nature whatsoever in respect of any bill to UZIN. The claim of damages will have to be established by the plaintiff (Asiacon) through evidence to be recorded in the present cage. Prima facie no suspicion attaches to the payment being made by Attock Cement to UZIN. No case has been made out for the grant of a temporary injunction."
(7) PLD 1990 Karachi 1 (Balagamala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. And 2 others). In this authority Ajmal Mian, C.J. And Mukhtar Ahmad Junejo, J. (as they then were) have observed: "It has been held by the superior Courts in Pakistan that attachment before judgment cannot be claimed merely on the ground that the defendant is a foreigner and does not own any assets in Pakistan."
16. (8)1992 MLD 2374 (Unichem Corporation (Pvt.) Ltd. And others v. Abdullah Ismail and others). In this authority was held by Salahuddin Mirza, J. (as he then was) as follows: "A perusal of the prayer-clause of the plaint shows that it is factually, correct that the plaintiffs have not sought any permanent injunction. All that they have sought is a decree for compensation- damages and costs of the suit plus special costs. In view of this factual position and the law laid down in the judgment reported as 1974 SCMR 519 relied upon by defendant No.1 is directly attracted in which it is held that "In a suit where no permanent injunction is claimed, no question of granting ad interim injunction can possibly arise." The application is therefore, in my view, liable to dismissal on this ground."
(9) All England Law Reports (1981)3 All ER 607 (Power Curber International Ltd. v. National Bank of Kuwait S.A.K.). In this authority Lord Denning M.R., Griffiths L.J. And Waterhouse, J. (as they then were) have observed: "Because Letters of Credit were established as a universally acceptable means of payment, equivalent to cash, in international trade and commerce on the basis that the promise of the issuing bank to pay was wholly independent of the contract between the. Buyer that the seller and that therefore the issuing bank would honour its obligation to pay regardless of any dispute between the buyer and the seller, and because the order of the Kuwaiti Court ran counter to those internationally accepted principles, the Court would not recongnise the order of the Kuwaiti Court as being a ground for granting a stay of execution of the summary judgment obtained by the plaintiff. The plaintiff's appeal against the stay of execution would therefore be allowed and the stay removed."
17. With all of my humbleness I am definite to say that the case-laws cited by Mr. Raja Qureshi are not applicable and helpful so far as the case of the plaintiff to issue Granishee order in the name the Manager, Allied Bank of Pakistan, Peshawar Cantt. Branch, Peshawar and Manager, Schon Bank Ltd, Karachi Branch, Karachi for attachment of two Letters of Credits opened in favour of defendant No. l are concerned. Whereas the case-laws cited by Mr. Mansoorul Arfin are concerned are applicable and helpful to the case of defendant No. l and I respectfully agree with the same. It is a matter of record that there is no privity of contract between the plaintiff and defendant No.1 and defendant No.2 is the Court of Commercial Arbitration in Seoul, Korea and the matter has been referred to the Director, Korean Commercial Arbitration Board by the plaintiff himself. According to clause 12 of the Contract Act it was agreed that all disputes will be submitted for Arbitration to defendant No.2 and award shall be final and binding on both the parties. That arbitration proceedings have been commenced by the plaintiff and are still pending with defendant No. l Mr. Arshad Tayyebally has referred me to the affidavit sworn by Mr. Liaquat A.I, an Officer in Allied Bank of Pakistan. The relevant paragraphs of the same have been reproduced hereinabove wherein it is mentioned that the amount of L/C lying with the Garnishee is now the property of M/s. Prime Star and not of defendant No.1, because so long the goods are not exported to Pakistan the money shall retrain the trust money of M/s. Prime Star and defendant No. l will export the goods to Pakistan only after receipt of L/C amount by the Bank in Korea working on behalf of defendant No. 1.
18. The money of L/C can only be detained when it becomes the property of defendant No. 1. It is also matter of fact and it is not denied by the plaintiff that Garnishee has already suffered a loss of Rs.263,101.48 due to devaluation of Pakistan rupee by Government of Pakistan and the order of the Court passed against the Garnishee is oppressive 2s they have already suffered a lot as mentioned hereinabove. I would like to refer Order 21, Rule 46, C.P.C., as follows: "Modes of having money under decree.--(1) All money payable under a decree shall be paid as follows, namely:---
(a) Into the Court whose duty it is to execute the decree; or
(b) out of Court to the decree-holder through a bank or by postal money order or evidenced by writing signed by the decree-holder or his authorised agent; or
(c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder.
46. Attachment of debt, share and other property not in possession of judgment-debtor.--In case of--
(a) a debt not secured by a negotiable instrument;
(b) a share in the capital of a corporation;
(c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,---
(i) in the case of the debt, the creditor, from recovering, the debt and the debtor from making payment thereof until the further order of the Court;
(ii) in the case of the share, the person in whose name the share may be stand in from transferring the same or receiving any dividend thereon; (iii)in the case of other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.
(2) A copy of such order shall be affixed on some conspicuous part of the Court-house and.
19. Another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.
(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.
20. I would also like to refer Order 38, Rule 5, C.P.C., as follows:
5. Where a defendant may be called upon to furnish security for production of property.--(1)
21. Where, at any stage of a suit the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him.
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
22. A bare reading of the orders referred hereinabove itself prima facie does not support the case of the plaintiff. The attachment before the judgment cannot be claimed on the plea that defendant is a foreigner and in the case does not own any property in the country. Even the perusal of the prayer clause shows that factually the plaintiff has not sought permanent injunction all that he has sought a decree for compensation and costs of the suit any other relief deem fit and proper.
23. From the material placed with the case and case-laws as discussed hereinabove, the plaintiff has not been able to make out the case for grant of the application and for the foregoing reasons I dismiss the application and recall the order dated 23-1-1996 with no order as to costs.