1. ' The plaintiff/D. H. Has applied for execution of the decree against the J. D. By attachment and the sale of Car No, KAK-8016 of the Judgment-Debtor No, 1 lying at his premises at No, 8 Overseas Housing Society, Farooq Cottage, Karachi; by attachment of household goods such as Air- conditioners, T. V., Radio, Electric Fans, Fridge, Furniture's, Fixtures, fittings ornaments, utensils, carpets etc. And such other goods at the potation of the representative of the D. H. To the Bailiff of this Court lying at the residence of the J. D. No, 2 at Block No, 3, Hussaini Coop. Society, Karachi.
2. ' Mit. Khurshid Bai, intervenor, w/o Haji Karim has filed an application under section 47 read with Order XXI, rules 26, 58, 60 and 62, C. P. C. And has prayed that the listed movable properties or similar properties are not liable to attachment in execution of the decree as the said properties among others have already been gifted by J. D. No, 2 to the intervener on 1st December 1973. In support of her claim she has annexed Photostat copy of a declaration of past oral gift, dated 8-12- 1973. Accordingly, Mr. Niaz Abmad Khan, the learned Advocate urges that the properties which have been gifted to the intervener by J. D. No, 2 prior to even filing of the suit cannot be attached. Mr. Mansoorul Arfin the learned Advocate for the D. H. Has raised some preliminary objections as to the maintainability of the application. His objections are that the provisions of section 47 of the Code of Civil Procedure are not attracted inasmuch as the intervener was not a party to the suit as the provisions thereof are attracted only to questions arising between the parties to the suit in which the present decree was passed or their representative. The intervener is also not representative of the parties as she is claiming title to properties in her own right, and that application under order XXI, rule 58, C. P. C. Lies only after the property has been attached but in the present case no properties have been so far attached. Therefore, the learned counsel contends that the application is not maintainable. The contention of Mr. Mansoorul Arfin is well founded. Objections to attachment of property could be entertained only after the property is attached and not before.
3. The provisions of rules 60 and 62, 4 C. P. C. Are attracted also to the attached property. However, even ii I could entertain the objections prior to attachment of property and decided the same under my inherent powers (though I doubt that resort could be had in such a case to inherent powers) there should have been prima facie evidence to show that the movable properties ordered to be attached are owned by the intervener but neither in the execution application nor in the objections filed by the intervener, nor in the declaration of the gift full or any particulars of the properties are given. Television radio transistors. Electrical equipment's can be identified by their make, numbers or models etc. But there is nothing on record before me to show that the properties which are ordered to be attached and the properties which are claimed to be gifted are one and the same. Therefore, unless the properties art attached and evidence is adduced before me that the properties attached are the same which are covered by the gift, it is not possible to hold that the properties belong to the intervener nor is it possible, at this stage without attachment of the properties to load any evidence to establish title the properties, ordered to be attached. Under the circumstances I see no reason to stay the order of attachment already passed. Mr. Niaz Ahmed Khan states that the question of identity of the properties ordered to be attached does not arise as the house from which properties are sought to be attached is one in which J D. No, 2 as well as the intervener is residing, but from the allegation that J. D. No, 2 and the intervener are residing in the same house even if it is presumed to be correct, no conclusive influence can be drawn that the properties lying in the house exclusively belong to one or the other and/or owned jointly. Therefore, it is only after the properties are attached that any claim to the same can be properly made and adjudicated upon.
4. ' Therefore, I hold that the application is premature and it is liable to be dismissed. Accordingly, I dismiss the same.