1. ' Civil Miscellaneous No,4734 of 2002. Listed application has been filed by intervenors Messrs M.K.M.
2. Textile Products under Order 40 rule 1, C.P.C. Seeking appointment of Receiver to take over the possession of Noori Textile Mills Limited, the defendant No,1 herein.
3. ' Application for appointment of the Receiver has been filed in suit filed by the plaintiff Abdul Karim, against the Noori Textile Mills Limited and one Zakaria Ghani for declaration injunction and recovery of Rs,15,754,403 with a consequential relief seeking restraining orders against the defendants and or other persons claiming through them from interfering with the plaintiff's possession. It is claimed in the suit that the plaintiff entered into a Joint Venture Business .Agreement dated 18-6-2001 with the defendants No,1 through one Mr. Hero Hanif for a period of 3 years. It is claimed that said agreement was entered by the plaintiff and the defendant in this suit. It may got, be out of place of mention that intervenors have already filed a suit for damages being Suit No,817 of 2000 and Suit No,1250 of 2000 seeking restoration of the possession of the mill of which it is claimed the intervenors were in possession and occupation under an agreement. No counter-affidavit has been filed by the defendants. Despite the fact that notices were issued to the defendants and one Khadim Hussain Tahahim and Maula Bux Bhatti filed Vakalatnama on 4-5-2002 and 15-5-2002 on behalf of both the defendants respectively. Notices of the listed application were served as per bailiff report on 28-6-2002 and 29-6-2002 respectively. When this matter was fixed on 12-9-2002 for hearing of the listed application request for adjournment was made on behalf of Mr. Maula Bux Bhatti Advocate for the defendants No,2 that he is not well. On the opposition of the counsel appearing for the decree-holder in other matter, which was ordered to be heard alongwith this matter. I heard the plaintiff later on Mr. Adnan Karim Advocate filed Vakalatnama in place of Mr. Maula Bux on behalf of defendant No,2, Zakria Ghani and made his submission.
4. As a brief background, it may be observed that National Bank of Pakistan in Suit No,432 of 1998 and Suit No,1073 of 1998 obtained mortgage judgments and decree dated 1-9-1998 and 18-1-2002 respectively in respect of the mortgage property subject-matter of instant suit, in respect whereof, Receiver is sought to be appointed through listed application. While disposing of the Official Assignee reference and C.M.A. No,1532 of 2002 filed in Exh:No,83 of 1999 vide order dated 11-12-2002, it has been observed as follows:-- ' Objection of all the persons, who claim to have entered into transaction to acquire the management or to run the factory under an agreement may it be a management agreement or joint venture business agreement are all bound by the mortgage decree such transactions are subservient to the mortgage, through such device the mortgagor cannot be allowed to defeat the right of a mortgage, which is superior to the rights of all other claimants who claim any right or interest in the mortgaged property more particularly after the mortgage decree, if any person enters into any transaction or claims to acquire any right or interest in mortgaged property, knowingly fully well that such property is subject to mortgage and mortgage decree, does so at his own peril and risk.
5. Consequently in the said proceedings Official Assignee has already been appointed Commissioner to take over the possession and control of the defendant No,1 (Noori Textile Mills Limited) and to dispose of the mortgage property in terms set out therein. In presence of such orders and directions, there appears to be no justification to grant the application for appointment of the Receiver. As observed above, the plaintiff's right in suit is subservient to the right and interest of the mortgage more particularly when they hold a mortgage decree. By such device the right of mortgagee cannot be allowed to be defeated. Even otherwise intervenors M.K.M. Textile Products, in above Suit No,817 of 2000 has claimed damages for breach of contract in the sum of Rs,50,792,956 on the fact of such claim application for appointment of receivership is frivolous. Application under the facts and circumstances is dismissed with costs.
6. ' C.M.A. No,4499 of 2002. This is an application filed by the defendant Zakaria Ghani, seeking discharge and vacation of the orders of injunction dated 7-5-2002 on the ground inter alia, that orders were obtained in collusion with Hero Hanif with the plaintiffs and by suppression of real facts. It may be observed that such status quo orders were managed by the defendant No,2, diary dated 7-5-2002 shows that it was on the statement of Mr. Khadim Hussain learned counsel appearing for the defendant No,1 at bar that till decision of the application they will not interfere in the running of mill of the plaintiff. Such order indeed was obtained by abusing the process of law, inasmuch as the defendant No,2 was very much in the knowledge that the mortgage decree as stated above, while disposing of C.M.A. No,4734 of 2002, already exists in favour of National Bank of Pakistan, against which no appeal has been preferred, same has attained finality. Execution proceedings are pending against the defendants, who are judgment-debtors in Exh.No,83 of 1999 and Exh.No,236 of 2000. On applications filed in the execution proceeding referred to above order for the disposal of mortgage property has already been passed. In view of such directions it will be anomaly to allow any restraining orders to stand in the way of execution proceedings. The execution proceeding cannot be allowed to frustrate by such frivolous proceedings. Under such circumstances the interim orders obtained by the. Plaintiffs on the basis of statement of the defendant's counsel on 7-5-2002 are vacated.
7. ' Application in terms of the above, stands disposed of.