The petitioner instituted a suit for recovery of Rs.12,68,00,000 against the predecessor-in-interest of the respondents who expired during pendency of the suit and the present respondents being his legal heirs -were brought on the record as party. The suit of the petitioner was dismissed by the learned trial court on the ground that the same was hit by section 10 of the Money Lenders Ordinance, 1960. The petitioner filed an appeal before this Court bearing R.F.A. No.228 of 1985 and on the application moved by the petitioner, this Court attached the Gold Chain Making machines numbering 20 belonging to respondent No. l but as the same were not traceable the case was remanded and ultimately was decreed on 19-1-1997 to the extent of Rs.12,68,00,000. Thereafter, the petitioner filed an application for execution against the judgment --debtor, respondent No. 1, on 21- 4-1997. The applications were submitted on behalf of Abdul Majid and Mst. Nusrat Majid under sections 50, 56, 151 read with Order 21, Rule 58, C.P.C. On the ground that the applicant/respondent has not inherited any property from her father either movable or immovable nor a single penny has been received in the shape of cash and the decree-holder got attached Bungalow No.86-B-1, Gulberg III, Lahore -belonging to Abdul Majid and Mst. Nusrat Majid, owner of the said Bungalow which was purchased by both of them and the payment was made by Abdul Majid and deceased father of Mst. Nusrat had no concern with the abovesaid bungalow. It was prayed that the property so attached be released. The application was contested by the present petitioner and the learned Civil Judge vide his order, dated 28-10-1997 after accepting the applications, filed by Abdul Majid and Mst. Nusrat, released the abovesaid property. This order was not challenged before any forum.
However, the petitioner-decree-holder again sought attachment of Bungalow No.86-B-1, Gulberg III, Lahore and the learned Senior Civil Judge, Lahore vide his order, dated 14-9-1998 dismissed the same and directed the decree-holder to submit fresh "Fard-e-Taleeka". The abovesaid order has been assailed through this Constitutional petition.
2. In response to pre-admission notice issued by this Court Mr. Muhammad Iqbal, Advocate as entered appearance for respondent No. l while no one has appeared on behalf of the other respondents so they are proceeded against ex parte.
3.I have heard learned counsel for the parties at some length and have also perused the record.
This case is being decided as a notice case.
4. Learned counsel for the petitioner has contended that the attachment order was rightly passed and property once attached cannot be released. He further contended that the attachment is complete and valid and prohibitory order has been proclaimed and affixed. In support of his contention, learned counsel has placed reliance on Karan Singh v. Ram Sahai and another AIR 1941 All. 41, Muthiah Chetti v. Palaniappa Chetti and others AIR 1928 PC 139, Mahomed Mohideen Pillai Tara and another v. Animal AIR` 1939 Mad. 793, Lachhman Singh v. Firm Dasuandhi Ram Babu Ram AIR 1938 Lah. 16 and Jodh Singh v. Nizam Din and another AIR 1930 Lah. 332 and 204.Learned counsel has further referred to section 52(2) of C.P.C. To contend-that the decree can be executed personally against a legal representative of the deceased judgment-debtor.
5. Conversely, the learned counsel for respondent has contended that the present writ petition being against an interim order is not competent as the petitioner has already filed a review application against the impugned order which is pending adjudication. He has placed reliance on Messrs Industrial Development Bank of Pakistan v. Mst. Roqaiya Begum and others 1986 CLC 1592 to contend that the decree could be passed or executed against the legal representative to the extent of deceased's property, in his possession and since the respondent is not in possession of any property left by the deceased the present decree cannot be executed against the same and the learned trial Court was justified in directing the petitioner to furnish "Fard-e-Taleeka". It has been held in 1986 CLC 1592, that if a person against whom claim is made, dies before institution of suit, then for such claim suit can be filed against those who are in possession of estate or property of deceased or represent same. Similarly, if the defendant dies during pendency of the suit, his legal representatives can be joined as defendants and a decree can be passed or executed against a legal representative to the extent of deceased's property, in his possession. The contention raised by learned counsel for the respondents that the descendants of the deceased Imran Ashraf etc. In no circumstances can be held liable to pay decretal amount, if any, as they have not inherited any property from the deceased has much force.
6. The petitioner has not placed any document on record to establish that the respondents have inherited any property from their predecessor-in-interest and if nothing has come into hand of any heir or other person then he cannot be termed as legal representative and cannot be sued for such a claim against the e deceased debtor nor a decree passed against a deceased judgment- debtor be executed against him. It is also an admitted fact that the earlier order passed on 28-10- 1997 by the executing Court through which the property of respondent Mst. Nusrat Majid was released, never challenged further before any competent forum wherein the learned executing Court discussed in detail the point for attachment of the said property. The decree-holder may furnish "Fard-e--Taleeka" as directed by the learned executing Court.
7. The order of the learned Civil Judge is eminently just and correct as there is no jurisdictional defect in the same. The petitioner has failed to point out C any illegality or infirmity in the abovesaid order. The petitioner may seek his 'remedy before the learned executing Court in terms of the abovesaid order.
8. With the above observation, this petition stands disposed of.