' Respondent filed a suit for recovery of Rs,31,42,938, under Order XXXVII of C.P.C. Out of this amount, Rs,13,81,469 was claimed against promissory note, Rs,13,21,469 for loss of business, Rs,4 lacs for mental torture and Rs,1 lac for loss per mensem. An application under Order XXXVIII, Rule 5 of C.P.C.
Was filed in the suit for attachment before judgment. On 14-11-1994, the application for attachment before judgment was allowed. This order was challenged by appellant (Rehmania Textile Mills (Pvt.)
Ltd., in F.A.O. No,123 of 1995. Vide order, dated 4-6-1995, the operation of the order of attachment was stayed. On 23-10-1995, it was directed that no further proceedings for attachment etc. Should be conducted before the trial Court.
2. Subsequently, the parties entered into a compromise and as a result thereof, a compromise 'decree was passed on 17-10-1997, for an amount of Rs,12,66,172, inclusive of Rs,15,053 as costs. It appears that the remaining claim in the suit, based on damages etc., was given up and, therefore, the decree was passed with consent, for the amount of promissory note.
3. On 11-11-1997, learned counsel for parties in F.A.O. No,123 of 1995, stated that the parties had compromised, consent decree had been passed on 17-10-1997 by the learned Additional District Judge, Faisalabad, the appeal had become infructuous and that the order of attachment passed by the trial Court was no more in field. On this the appeal was disposed of.
4. After the disposal of the appeal, respondent on 20-10-1997 applied for execution of the decree.
The learned Additional District Judge, on assumption that the property had already been attached, proceeded to order for the sale thereof. Appellant filed objections under section 47 and Order XXI, Rule 58 of C.P.C., thereby pointing out, that the property had already been attached and sold in pursuance of a decree passed by the learned Banking Judge, Lahore High Court and that in any case, without attachment, no order for sale could be issued. It was maintained that the earlier attachment order being no longer in field, direction for auction of the property on the basis of non- existent order could not have been issued. The objection petition was dismissed by the learned Additional District Judge, Faisalabad on 12-2-1998 which order is subject-matter of challenge in the present appeal.
5. Learned counsel for the appellant contended, that the earlier attachment order was no longer in field as evidenced by the order passed in F.A.O. No,123 of 1995 on 11-11-1997, in the presence of learned counsel for the parties and, therefore, the learned Additional District Judge, fell in error in assuming that the order of attachment was intact or that no fresh order of attachment was required. It was added that in between, a decree was passed by the learned Judge Banking Court, Lahore High Court, and in execution the property was sold, and, therefore, right of third party had already been created which could not be taken away, by resorting to a non-existing attachment order. Learned counsel submitted that in any case, without fresh order of attachment, no auction could take place as the property was not under mortgage with the respondent.
6. In reply, learned counsel for the respondent submitted that in terms of Order XXXVIII, Rule 11 of C.P.C., the attachment order in the suit would remain intact and no fresh attachment order would be required. Learned counsel submitted that the respondent is not affected by any decree in favour of the bank or by any attachment and sale made in execution proceedings at the instance of Habib Bank, decree-holder in the other case.
7. I have given due consideration to the respective submissions of learned counsel for the parties and have been taken through the relevant record of the present case as well as F.A.O. No23 of 1995.
8. The learned Additional district Judge, took the view that on the withdrawal of F.A.O. No,123 of 1995, the execution proceedings could be continued without fresh attachment and that in the matter of two simultaneous execution proceedings, one before the learned Additional District Judge and other before the High Court, the parties should approach the High Court, if they so advised.
9. For the decision of this appeal, two questions require consideration. Firstly as to whether the earlier attachment order was in vogue and secondly whether in the circumstances of the case, the respondent could proceed with the sale of the property through auction, particularly, when the objection petition filed before the learned Banking Judge, Lahore High Court was withdrawn. It is true that if the property is under attachment during the pendency of suit then ordinarily, under Rule 11 of Order XXXVIII, C.P.C., it shall not be necessary A upon application for execution of decree to apply for re-attachment of the property. The case in hand has distinct features and distinguishing circumstances.
10. The perusal of record indicates, that after the order for attachment was passed, appellant went in appeal in which the operation of the impugned order of attachment was suspended vide order, dated 4-6-1995. The order reads as follows:-- "Sardar Sami Hayat, Advocate.
' Inter alia contends that suit for loss of business, damages for mental torture and loss and the assessed damages could not proceed under Order 37 of C.P.C. And that the order of attachment of property under Order XXXVIII, Rule 5, C.P.C. Was without lawful authority in view of the fact that the property was subject-matter of charge by a bank; loan being recoverable as arrears of land revenue.
(2) The points raised require consideration.
(3) Admit subject to objection. Notice.
' C.M. 1-1995.
(4) Notice for an early date.
(5) The operation of the impugned order shall remain stayed subject to notice.
(6) This F.A.O. Shall be placed before another learned Bench on the next date of hearing.
11. It further appears from the record of F.A.O. 123 of 1995 that on 23-10-1995 it was directed that no further proceedings for attachment etc. Shall be conducted before the trial Court. It would, therefore, means, that the order of attachment was not executed and before the property could be attached, its operation was stayed by the High Court. Subsequently the parties entered into a compromise for a consent decree of a portion of the amount claimed in the suit and in result a consent decree was passed on 17-10-1997 for a sum of Rs,12,51,119. In view of the consent decree, the appeal became infructuous. Learned counsel for the parties made a statement that the parties had compromised, consent decree had been passed and that the impugned order of attachment was no more in field. In this view of the statement, the appeal was disposed of on 11-11-1997, when following order was passed: "Learned counsel for the parties state that the parties have compromised and consent decree has been passed on 17-10-1997 by the Additional District Judge, Faisalabad and as such the appeal has become infructuous and the impugned order of attachment passed by the trial Court is no more in the field.
' In view of the fact that the final judgment and decree has been passed by the trial Court and the impugned interim order ceased to exist, the learned counsel for the appellant wants to withdraw this appeal. Dismissed as withdrawn."
12. From the order passed in appeal, it is obvious, that not only the parties had admitted that the impugned order of attachment was no longer in filed but also the appeal was disposed of with the clear observation that the order of attachment had ceased to exist. Notwithstanding the same, the respondent applied for execution of the decree and without any fresh order of attachment, obtained order of auction of the property. In view of the above order, it could not be said that the order of attachment in the suit was intact and that no fresh order was required. The matter does not end here. Appellant filed an application for clarification of the order. C.M. No,444-0'of 1998 moved in this regard was dismissed by the learned Single Judge, who had earlier decided the appeal, vide order, dated 12-11-1998. The order passed in appeal does not leave any room of doubt that the attachment order was no longer in field and had ceased to exist. The provisions of Order XXXVIII, Rule 11 of C.P.C. Were not attracted for another reason. This provision would apply only, if the property was under attachment. In this case, the property was never attached and before the order of attachment could be given effect, its operation was stayed and since the main suit was decreed with consent, therefore, the order remained no longer in field and resultantly, the appeal was' disposed of with the observations that the order had ceased to exist. If the order of attachment was to remain intact, the respondent could have objected at the time when the appeal was disposed of on 11-11-1997. The order indicates, that both the learned counsel had made the statements that the order attachment was no longer in field. In the presence of that statement, and for the reason that the respondent had not pleaded the continuation of the attachment order, at the time when the appeal was decided, it will be too late in the day, for the respondent to turn around and plead that he should be allowed to apply for auction without fresh attachment of the property. The learned Additional District Judge, fell in error and also misread the order passed in appeal while observing that it was only the contention of the parties and not the order of the Court that the order of attachment was no longer in field. The order speaks to the contrary.
13. Another factor which cannot be overlooked is that a decree was passed by the learned Banking Judge Lahore High Court, in favour of Habib Bank Ltd. And in execution of the decree, the property was attached and sold through auction. Respondent himself filed C.M. No,323-B of 1997 and C.M.
No,324-B of 1997. The first application was under Order XXI, Rule 58 of C.P.C. And the second one was under section 151 of C.P.C. In the application under Order XXI, Rule 58 of C.P.C., the respondent objected to the attachment and auction of the property on the ground that the property had already been attached in the suit filed by him and on this premises, he applied for the stay of sale.
Later, respondent, acting through Mr. Muhammad Rashid Chughtai, Advocate, who represent him in the present appeal, withdrew the application when following order was passed:- "3-11-1997. Mr. Muhammad Iqbal, Advocate for decree-holder. Sardar Sami Hayat, Advocate for judgment-debtors. Mr. Shams Mahmood Mirza, ' Advocate for I.D.E.P. Mr. Muhammad Rashid Chudghtai, Advocate for applicant. C.M. Nos. 323 and 324 of 1997 Mr. Muhammad Rashid Chughtai, Advocate wishes to withdraw these applications. Disposed of accordingly."
14. After having withdrawn the objections and not sticking to the claim on the basis of alleged earlier attachment, the respondent could not subsequently be heard to maintain that the earlier attachment would continue for his benefit in execution of the decree nor the learned Additional District Judge had any jurisdiction to proceed for the sale of the property without hearing the third party in whose favour rights have been created through the auction of the property. The impugned order is, therefore, not sustainable on this account as well.
15. For the reasons above, this appeal is allowed, the impugned order is set aside and in result, the application under Order XXI, Rule 58 of C.P.C. Filed by appellant is accepted. It is accordingly held, that the previous order of attachment, was no longer in field and that without fresh attachment, no order for auction could be passed and also that no order in regard to the sale of property could be passed by the learned Additional District Judge, without hearing of the parties concerned having interest in the property, either as initial owner or as purchaser in execution of decree passed by Banking Judge.