1. CH. IJAZ AHMAD, J.---Since the parties have also filed different applications in the present appeal i,e, C.M. Nos. 689-C-96, 227-C-95, 266-C-95, 590-C-95, 2062-C-96, 386-C-97 and C.M. 539-C-97, therefore, main appeal as well as these applications are disposed of by consolidated judgment.
2. The brief facts out of which the present appeal arises are as follows:-- Respondent No,1 Abdul Sattar Khan filed a suit for recovery of Rs,49,00,000 and permanent injunction against Raja Nasir Khan present appellant and Shahid Javed, respondent No,2 on the ground that respondents Nos.1 and 2 were known to each other as businessmen doing the business in real estate and on account of earlier transactions mutual understanding between them existed. The appellant informed respondent No,1 that a commercial building known as Al- Amin Plaza was under construction at the Mall Rawalpindi. He stated that he had purchased ground-floor of the said Plaza and it consisted of 15 shops - 4 on front, and 11 on the rear on the ground floor and present respondent No,1 agreed to pay Rs,76,00,000 to purchase the said premises and out of the agreed price Rs,24,00,000 were given by respondent No,1 to the present appellant by three cross cheques i,e,: 1.Cheque No,135225 of Bank of America, Islamabad Branch Dated 16-2-1988 Rs,10,00,000 2.Cheque No,037730 of Bank of America Islamabad Branch Dated 20-2-1988 Rs,08,00,000 3.Cheque No,037740 of Bank of America, Islamabad Branch. Dated 6-4-1988 Rs,06,00,000 It is pertinent to mention here that present appellant was not the owner of the said premises on the day of oral agreement between the parties. Subsequently neither the property in question for sale followed to the alleged vendor with a perfect title through its actual owner namely Sh.Muhammad Amin and his family members nor the present appellant arranged for a title in his name and its onward sale to respondent No,1, therefore, respondent No,1 has filed suit for recovery in the terms that he was entitled not only to recovery of the actual amount of Rs,24,00,000 but also damages amounting to Rs,25,00',000 as compensation with the following prayer:-- It is, therefore, respectfully prayed that a decree for the recovery of Rs,49 lacs may kindly be awarded in favour of the plaintiff against defendants.
2. Further, it is prayed that a decree for the permanent injunction may also be awarded whereby the defendants be restrained to further sell, dispose of or to alienate the property comprising of a Shopping Plaza known as Qaisar Plaza constructed on 18 plots bearing Nos.1441, 1442, 1443, 1446, 1447, 1473, 1474, 1475, 1476, 1477, 1478, 1479, 1480, 1481, 1482, 1488, 1489 and 1490 purchased by the defendants through the sale deed dated 9-7-1988 till the payment of the suit amount of the plaintiff.
3. The present appellant controverted the allegations levelled in the suit in his written statement and only admitted to the extent that appellant acknowledged the receipt of 'Biana'.
4. The learned trial Court out of the pleadings of the parties framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the shops have been misdescribed. If so, its effect? OPD.
(3) Whether the suit is bad for non-joinder of necessary parties? OPD.
(4) Whether the plaintiff is entitled to recover Rs,49,00,000 from the defendant on the grounds mentioned in the plaint? OPP.
3. (4-A) Whether the counterclaim prayed by defendant No,2 is not maintainable? OPP.
4. (4-B) Whether the defendants are estopped to raise the plea of counterclaim on account of their conduct? OPP.
5. (4-C) Whether the time was the essence of the agreement executed between the parties. If so, with what effect? OPD.
6. (4-D) Whether the defendants are entitled to a decree for Rs, 1,00,00,000 on account of counterclaim on the grounds mentioned in the written statement? OPD.
(5) Relief.
7. The learned trial Court decided issues Nos.2 and 4 jointly in the following terms:-- There is no denial of the fact that Rs,24,00,000 have been received and encashed by defendant No,1 alone. So is admitted by D.W.1. Therefore, the plaintiff is entitled to recover it from the man concerned. This amount was paid in the year 1988 and since thereafter, obviously utilized by the recipient in his profitable business as a property dealer I decline to conceive the arguments by the learned counsel for the defendants that the defendant is not liable either to return this amount, or account for the benefits derived by its user. As already indicated and dealt with at length, that where the plaintiff was at fault on the point of proposing to purchase a property with uncertain title of defendant No,1, the latter is also found unreservedly that he played a foul game with Abdul Sattar Khan plaintiff. In the circumstances as such, the defendant is held liable to pay something more and in addition to the amount actually received. At this juncture, I may refer to the statement of P.W.1 Abdul Sattar Khan wherein he has claimed for the damages worth Rs,25,00,000 but there is no cogent and positive evidence as to how he was entitled to the amount as such. Therefore, in the fitness of the circumstances and keeping in view the principles of natural justice, I propose to conclude this controversy with a finding that the defendant No,1 would remain liable to pay Rs,15% as of compound annual interest over the actual amount received and so from April, 1988 and onwards, unless his total liability is discharged in favour of the plaintiff. Both the issues are decided accordingly and for the plaintiff.
8. Issue No,1 was not pressed by present appellant, therefore, decided against him. Issue No,3 was also not pressed by the present appellant, therefore, decided against him.. The learned trial Court decided Issues Nos.4-A, 4-B and 4-D jointly in the following terms:-- There is no evidence as such on the case file, therefore, the counterclaim of Rs,1,00,00,000 is nothing but baseless and is turned down.
9. The trial Court also decided Issue No,4-C against the present appellant on the ground that there being no iota of evidence on the question confined in this issue. The learned trial Court decreed the suit in the following terms:-- Directing him to pay Rs,24,00,000 (Rupees twenty-four lacs only) plus compound interest at the rate of Rs,15% per annum with effect from April, 1988. He would remain under an obligation to discharge the liability as such, unless, the entire decretal amount is paid to the party entitled on 22-7-1993. Hence the present appeal.
5. The learned counsel for the appellant contended that respondent No,1set out a claim of damages which was not awarded by the trial Court, therefore, the Trial Court was not justified to award compound interest on the earnest money. He further argued that respondent No,1 did not mention a word regarding interest in the plaint, therefore, the learned trial Court was not justified on any canon of justice to grant interest to the respondent on the well known principle that parties entitled to the relief as claimed by the plaintiff in its plaint as mentioned above plea of interest was not taken in the plaint, therefore, the trial Court was erred in law to grant the same to the respondent/plaintiff. The respondent/plaintiff did not fulfil the terms and conditions of the agreement arrived at between the parties as the remaining amount was not paid by the respondent/plaintiff and the trial Court did not consider this aspect of the case and wrongly did not accept the claim and damages sustained by the present appellant. He further argued that respondent/plaintiff himself violated the terms and conditions and, therefore, his suit was not maintainable by virtue of his conduct but the learned trial Court did not consider this aspect of the case and finally argued that interest is in violation of Injunctions of Islam and the trial Court is bound to take into consideration principle of injunctions of Islam by virtue of Article 2-A of the Constitution. The learned trial Court misread the whole record and decided the matter in vacuum and has failed to appreciate the material aspects of the case and gave importance to the factum of receipt of money by the appellant but did not give consideration to the loss sustained by him because of non-fulfilment of the conditions by respondent No,1. He further argued that admittedly the original sum of Rs,24,00,000 was received as Biana and because of the non-fulfilment of terms and conditions by respondent No,1 to make good the remaining consideration the Biana was forfeited, therefore, findings on Issue No,4 are non-existent in the eyes of law. The learned trial Court failed to appreciate that the appellant is not liable either to return the amount or to account for the benefits derived by its users without any cogent reasons. In support of his contentions he relied on the following judgments:--
(1) Sh. Maqbool Ahmad v. Board of Revenue (1990 ALD 586).
(2) Irshad H.Khan v. Mrs.Parveen Ajaz (PLD 1987 Kar.466).
(3) House Building Finance Corporation v. Shahinshah Humayun Cooperative House (1992 SCMR 19).
(4) M/s. Shifa Medicos v. Commerce Bank Ltd. (1988 MLD 1126).
(5) Ghulam Abbas v. Trustees of the Port of Karachi (PLD 1987 SC 393).
6. The learned counsel for respondent No,1 contended that it is admitted fact on the record that appellant received Rs,24,00,000 as Biana/earnest money. It is also admitted fact on record that there was no written agreement between the parties, therefore, time is the essence of the contract does not arise in the present case out of the pleadings of the parties and the evidence adduced before the trial Court. It is also admitted fact that appellant failed to purchase the property in question from Sh.Muhammad Amin and his family, therefore, the appellant did not demand the remaining amount from respondent No,1. In the absence of the terms and conditions of the agreement the amount of Biana could not be forfeited, therefore, findings of the trial Court are based on proper appreciation of the evidence on record. If the evidence on record is appreciated on any angle or any principle of canon of justice the result would have been the same that the appellant is bound to return the said amount of Rs,24,00,000 to respondent No,1, therefore, the judgment of the trial Court is valid. It is a commercial and business transaction and it is admitted fact that the appellant used the huge amount of Rs,24,00,000 since 1988, therefore, the trial Court was justified to grant the compound interest and that is not above the bank rate. The appellant must have earned more benefits as compared to the amount calculated on the earnest money by utilizing the same by purchasing property etc. As the appellant and respondent No,2 are doing the business of real estate. Finally the learned counsel for respondent No,1 contended and supported that the judgment of the trial Court is valid and in accordance with law.
7. We have given our anxious consideration to the contentions of the learned counsel for the parties. It is admitted fact on record that there is no written agreement between the parties for sale of the disputed property. Three cheques were received by the appellant amounting to Rs,24,00,000.
10. It merely shows that a sum of Rs,24,00,000 was paid by the respondent No,1 as earnest money in respect of the property in question. Therefore, this document can only be a corroborative piece of evidence to show that this amount was paid in pursuance of an oral agreement. An agreement or contract made between the competent parties with their consent for lawful consideration and lawful object is binding on the parties. Oral agreement is valid and enforceable. Reference can be made to Muhammad Khan v. Riaz-ud-Din (PLD 1981 Karachi 170). In the absence of terms and conditions question of forfeiting the earnest money does not arise. It is basic and fundamental principle of agreements and contracts regarding the immovable property time never be considered as essence of the contract and in a very special and extraordinary evidence on record the time is considered to be an essence of the contract. We have examined the whole record.
11. Present appellant failed to bring on record any evidence to show that time is the essence of the agreement, therefore, contention of the learned counsel for the appellant has no force. We are fortified from the judgments reported as Adbullah v. Muhammad Siddique (1992 CLC 1561). The relevant observation is as follows:-- This is a suit involving transaction relating to immovable property in which the defendants have failed to comply with condition regarding completion of sale. They, therefore, cannot insist in performance within time fixed by the agreement. and Seth Essa Bhay v. Saboor Ahmad (PLD 1973 SC 39). Relevant observations at page 43 is as follows:-- It is a well-settled principle of law that in contracts relating to immovable property, time is not of the essence of the contract The appellant admitted that he received Rs,24,00,000 as earnest money. Therefore, in the absence of any terms of agreement the appellant has no right whatsoever to forfeit the earnest money, therefore, the contention of the learned counsel has no force. On the basis of the evidence on record both the parties are doing the business of real estate, therefore, the appellant must have utilized the said amount in any transaction and the price of the immovable property are raised to a very high since 1988 to 1997, therefore, appellant must have earned the huge benefits from the said earnest money, so the learned trial Court was justified to grant the compound interest on the said earnest money. The learned trial Court has ample power under different provisions of Civil Procedure Code and Specific Relief Act to grant compound interest in the interest of justice and fairplay. Keeping in view special circumstances of the case since it is a commercial transaction which was not finalized on account of the appellant who failed to purchase from Sh. Muhammad Amin and his family members, therefore, respondent was not penalized for the misdeeds of the appellant. The learned counsel for the appellant seriously contested only the portion of the judgment of the trial Court in which the compound interest was awarded on the earnest money on the touchstone of Injunction of Islam by virtue of Article 2A of the Constitution. We are afraid that it is a contract between the parties and the appellant as mentioned above has received huge benefits from the earnest money, therefore, by virtue of the conduct and the transaction in question we are not in agreement with the contention of the learned counsel. Even otherwise the parties are bound to remain within the terms and conditions arrived at between the parties. The Federal Shariat Court declared the interest against Injunctions of Islam but the aggrieved party has filed appeal against that judgment before the Supreme Appellate Bench of Supreme Court of Pakistan, therefore, the judgment of the Federal Shariat Court by virtue of the provisions of the Constitution remains suspended till the decision of the appeal. Hence, apart from the above discussion we do not agree with the contention of the learned counsel for the appellant. We are fortified by the judgment of Supreme Court reported as Muhammad Mumtaz Masud and 2 others v.
12. House Building Finance Corporation 1994 SCMR 2287. The relevant observation is as follows:-- " The judgment of the Federal Shariat Court has not yet attained finality as appeal against it is pending disposal before the Shariat Appellate Bench of this Court."
13. The appellant has not taken this ground in the memorandum of appeal, therefore, he is not permitted to agitate the same at the time of arguments. We are fortified by the judgment reported as Allied Bank of Pakistan v. M/s. Gujrat Friends Traders 1982 CLC 218. The plea of appellant is inconsistent. On the one hand he argued that Injunction of Islam should be taken into consideration while he himself violated the Injunctions of Islam, as he promised to sell the property in question to the respondent but he did not fulfil his own promise against the Injunctions of Islam, therefore, the contention of the learned counsel for the appellant has no force. The judgments cited by the learned counsel for the appellant are distinguishable on facts and law. In Syed Maqbool Ahmad v. Board of Revenue (1990 ALD 586) the relevant observation is as follows:-- Payment of interest on claimed amount, although withheld for many years unreasonably was not allowed, as allowing of interest in cases where there was no statutory compensation would amount to acting against the mandate of Constitution.
14. In the present case, the learned trial Judge granted interest on the basis of statutory provision i,e, section 34, C.P.C. In House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society 1992 SCMR 19 the House Building Finance Corporation gave loan to respondents for construction of building. As the entire amount with simple interest as demanded by the appellants had been paid, therefore, compound interest was waived/set aside.
15. In the present case respondent No,1 has not received even a single penny till date.
16. Reference has been made in Ghulam Abbas v. Trustees of the Port of Karachi (PLD 1987 SC 393).
17. This judgment only discussed the power of Arbitration and the Court in para. 22 at page 412. This judgment is also not applicable.
18. Reliance has also been placed on M/s. Shifa Medicos v. Commerce Bank Ltd. 1988 MLD 1126.
19. Record shows that an express agreement was reached between the parties to the effect that simple interest would be chargeable. In view of this compound interest was set aside. So this case is also not applicable.
20. In Irshad H. Khan v. Mrs. Parveen Ajaz PLD 1987 Karachi 466 interest is declared against Injunctions of Islam. This judgment interpreted in the given circumstances in Muhammad Hashim's case i,e, 1989 MLD 3284. The relevant observation is as follows:-- "The Promissory Note does not stipulate payment of any interest. However, in view of the official acknowledgement of ongoing depreciation in the value of Pakistan currency and in recognition of Muslim Law concept of the liability of a debtor to make good an amount equivalent to that borrowed, I would in exercise of powers of this Court under section 151, C.P.C. Allow 10% per annum to the plaintiff on the principal amount claimed in suit. Such payment at 10% per annum as aforesaid shall ensure towards adjustment of the referred depreciation and the same shall continue to be reckoned till realization of the decretal amount.
21. This suit, is, therefore, decreed for the principal amount of Rs,1,23,000 plus 10% per annum from the date of the Promissory Note i,e, 25-5-1987 till realization."
22. Keeping in view the abovementioned observation this judgment will support the case of respondent No 1.
23. The learned counsel for the appellant contended that the trial Court granted/awarded interest to respondent No,1 in spite of the fact that he had not made specific prayer for award of interest, therefore, this part of the judgment of the trial Court is incorrect. This contention has also no force.
24. Section 34 of the C.P.C. Clearly empowers the Court to award the interest in so far as a decree is for the payment of money, at such rate as the Court deems reasonable to be paid on principle sum so adjudged, from the date of the suit to the date of the decree.
25. Section 34 may be read in conjunction with Order VII, rule 7, C.P.C. Which relates to ancillary relief. It is settled law that an ancillary relief can be awarded in spite of the fact that it has not been prayed.
26. We are fortified by the judgment AIR 1921 Lahore 125, (Rup Ram v. Harphul).
27. It is, therefore, quite plain that even if there was no specific prayer for grant of interest the Court was entitled, rather justified in granting interest. Reliance can be placed on 1987 CLC 482.
28. In our view, section 34 gives a complete discretion to the Court to award interest if it deems reasonable to do so in the interest of justice and fairplay. We are fortified by the judgments:--
(1) Messrs M.Y. Malik & Company and others v. Messrs Splendours International (1997 SCMR 309).
(2) Nizam-ud-Din v. Zia-ud-Din (PLD 1984 Kar. 441)
(3) A.Ismail Jee and Sons Ltd. v. Pakistan (PLD 1986 SC 499)
(4) Pakistan v. Wali Ullah (PLD 1965 SC 310).
(5) Khan Iftikhar Hussain Khan v. M/s. Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550).
(6) Mian Abdul Aziz v. Alliance Bank of Simla Ltd. (AIR 1933 Lah. 352)
29. In this case learned trial Court has exercised its discretion. It is well settled that the Appellate Court will not ordinarily interfere in the exercise of discretion by the lower Court in the matter of grant of interest unless it is exercised arbitrarily. We are fortified by the following judgments:--
(1) AIR 1955 SC 468.
(2) AIR 1942 PC 61.
(3) AIR 1925 PC 280.
(4) AIR 1932 Lahore 25.
(5) PLD 1965 SC 310.
30. Keeping in view the following circumstances:--
(1) The learned trial Court exercised its discretion properly qua granting/awarding compound interest to respondent No, 1.
(2) Respondent No,1 paid Rs,24,00,000.
(3) Appellant received Rs,24,00,000.
(4) Both appellant and respondent No,1 are doing business of real estate.
(5) Property in question is commercial.
(6) Oral agreement took place regarding commercial transaction.
(7) Appellant used/utilized the said huge amount in his profitable business as a property dealer.
31. (7-A) Appellant executed agreement even when he was not absolute owner or having title of the property.
(8) Sh.Muhammad Amin family sold property to other people. Even then appellant did not return the said amount to respondent No,1 and earnest money stand forefeited by the appellant.
(9) Prices of the property raised very high from 1988 onward till the decree.
(10) Respondent No,1 did not receive single penny till date except litigation.
(11) Socio-economic condition prevailing in country.
(12) Suit was pending for adjudication from 1988 to 1993.
(13) Long delayed payments under vexatious and oppressive circumstances.
(14) Breach of Trust/mutual confidence.
32. The trial Court had awarded interest from April, 1988 whereas the suit was filed on 6-8-1988 for recovery of Rs,49,00,000 which was decreed on 22-7-1993 directing appellant to pay Rs,24,00,000 plus compound interest at the rate of Rs,15% per annum.
33. In view of these circumstances on the date of suit the claim of the plaintiff/respondent was for an unascertained sum, which had to be determined by the Court. There would, therefore, be no justification to burden the appellant with the payment of interest when he did not know what his liability in terms of money as the principal amount i,e, according to him he has forfeited the said amount on account of in violation of terms and conditions of the contract by respondent No,1.
34. Whether the pleas taken by appellant were vexatious was a matter for the trial Court to comment upon. However, once the Court determined a sum due against appellant and passed a decree, obviously the plaintiff being deprived of the amount due and payable to him on that date, entitled to be compensated by award of interest. We are supported by the following judgments of Supreme Court:
(1) A. Ismailjee and Sons Ltd. v. Pakistan PLD 1986 SC 499.
(2) Terni S.P.A. v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238.
35. The relevant observations in paras. 30 to 31 and finally in para. 37 of the latter judgment are as under:- "30. The Pakistan Law provides for the grant of interest. The right to interest for the period prior to the date of suit has been held by the Privy Council and by the Supreme Courts of Pakistan and India to be a matter of substantive law and can be allowed if there is (a) a statutory provision, (b) an agreement, express or implied between the parties, (c) a mercantile, usage. (d) or some equitable consideration to justify such a grant. See B.N. Railway v. Ruttanji Ramji AIR 1938 PC 67, Mahabir Prasad Rungta v. Durga Datta AIR 1961 SC 990 and Ghulam Abbas v. Trustees of Port of Karachi PLD 1987 SC 393. The law with regard to the grant of interest prior to the date of suit on a debt or sum certain payable at a certain specified time or otherwise is dealt with by the Interests Act, XXXII of 1839. Section 1 of this Act provides that the Court in its discretion can allow upon any debt or sum certain is payable otherwise, then from the time when demand of payment has been made in writing, giving to the debtor notice that interest would be claimed from the date of such demand until the time of payment; without prejudice to cases where interest is payable under any other law. Since interest can be claimed from the date when such debt or loan becomes payable, if such time is specified in writing, or from notice of demand, if such time is not specified in writing, the claim of interest up to date of suit is thus covered by this section. See Arif Ali Shah v. Province of West Pakistan 1969 SCMR 690. In Maine and New Brunswich Electrical Power Co. Ltd. v. Hard AIR 1929 PC 185, the Privy Council treated the proviso to section 1 of the Interests Act, 1839 as permitting the grant of interest in cases where Courts of Equity had exercised jurisdiction to allow such interest.
36. What was not noticed was that the proviso kept open the doors for the grant of interest in all cases where any other provision of law then prevailing allowed such a grant. The words 'in all cases' are used in the proviso to section 1 in contradiction to the words 'interest in certain cases' used in the Preamble to the Act. In short, the proviso admits provisions of other enactments dealing with interest then being present, which would be applicable.
31. Section 34 of the Code of Civil Procedure allows the grant of interest from the date of institution of suit till the date of decree and sections 34 and 34-B of the same Code allow the grant of interest from the date of the decree to the date of payment or up to such earlier date as the Court thinks fit.
37. The Court seldom by order grants interest during the pendency of a suit, though so many Courts refer to the grant of this interest at the time of decree as interest pendente lite, as if it has been granted pending the decision of the suit.
32. Section 34 confers a general discretion on the Court to allow interest where it considers the same just and proper in the circumstances of the case. See State of Madhya Pradesh v. Nathabai Desaibhai Patel AIR 1972 SC 1545.
37. For the foregoing reasons, this review petition is accepted, judgment of this Court dated 24-11- 1991 passed in Civil Appeal C.A. No,154 of 1989 is modified to the extent that the present petitioners shall recover US $155,574.34 from the present respondent, together with interest at the rate of 12 per cent. Per annum from the date of institution of the suit till the recovery of the decretal amount or the Pak rupees equivalent thereof at the rate of exchange payable on the date of suit i,e, US $ 1 equal to Pak Rs,10 as claimed by it in the suit. The present petitioner will get its costs of the appeal." in view of what has been discussed above, we modify the decree passed by the trial Court and grant the plaintiff/respondent No,1 a decree for a sum of Rs,24,00,000 and further direct that the plaintiff/respondent No,1 shall be entitled to compound interest at the rate of 15 per cent. Per annum on the aforesaid amount from 22-7-1993 (the date of decree passed by the trial Court) until realization.
38. In the result R.F.A. Is allowed in the above terms.
39. C.M. No,319-C of 1994 was filed by the appellant under Order 41 rule 5, C.P.C. With the prayer that the execution proceedings before the learned trial Court be stayed.
40. C.M. No, 689-C of 1994 was also filed by the appellant under sections 151/152, C.P.C. With the prayer for modification of order of this Court dated 6-3-1994 for the principal amount and execution proceedings be stayed on the basis of the security furnished before the learned trial Court. The Executing Court passed an order on 13-2-1995 for the arrest of the judgmentdebtor/appellant, therefore, appellant filed C.M. No, 227 of 1995 under section 151, C.P.C. For suspending the operation of the order of Executing Court dated 13-2-1995.
41. C.M. No,266-C of 1995 was filed by the appellant with the prayer that the order of the Executing Court dated 13-2-1995 be held in abeyance.
42. C.M. No,504-C of 1995 was also filed under section 151, C.P.C. With the prayer for extension of time to deposit the principal amount. Respondent No,1 filed C.M. No,590-C of 1995 that the bail granted to the appellant/judgment-debtor be cancelled.
43. This Court passed orders on 22-10-1996, 5-11-1996 and 20-11-1996 in which non-bailable warrants were issued for the arrest of the appellant, therefore, he filed C. M. No,2062-C of 1996 under section 151, C.P.C. With the prayer for recalling of the abovementioned orders.
44. This Court passed order on 4-12-1996 regarding deposit of principal amount in the bank in cash or bank security. The appellant did not appear, therefore, application was dismissed on 18-12-1996 and ultimately the appellant furnished the bank-guarantee.
45. C.M.No,386-C of 1997 was filed by one Pervaiz Akhtar Sheikh for release of bank guarantee. He also filed C.M. No,539-C of 1997 with the prayer that Allied Bank of Pakistan may be pleaded as a party in the proceedings. This Court vide order dated 21-7-1997 on the request of the learned counsel fixed the main case for arguments.
46. Pervaiz Akhtar Sheikh as well as Allied Bank of Pakistan are not necessary party to decide the controversy between the appellant and respondent No,l. Both of them have voluntarily provided bank security in obedience of the orders of the Court and on the basis of that, the appellant was released on bail. During the arguments, it was pointed out that the appellant is not in Pakistan. We are of the view that respondent No,1 is entitled to withdraw the amount if the appellant files a petition/appeal before the Supreme Court of Pakistan. These orders were passed under section 151/152, C.P.C. And Order 41, rule 5, C.P.C. And would remain in operation only during the pendency of the appeal.
47. In view of the above circumstances, in case the bank guarantee is released then the poor respondent No,1 will not get even a single penny and the decree will be frustrated. In the interest of justice and fairplay, it has however been directed that the decretal amount already deposited shall not be paid to the decree-holder unless sufficient security for reimbursement is furnished by him.
48. The decree-holder lost his bread winner long ago in April, 1988 and decree was passed on 22-2- 1993, and it is only proper that he should reap fruits of the decree passed in his favour, rather than just have a paper decree to console himself for the time being.
49. With the above observations, all these applications are also disposed of.