1. G. SAFDAR SHAH, J.-This leave petition is meant to impugn the order of the Sind High Court, at Karachi, dated 21-I0-1978, by which the revision application of the petitioner, against the order of VIII Additional District Judge, Karachi, dated 2-9-1978, was dismissed.
2. The background of the litigation between the parties herein is that the respondent filed suit against the petitioner in the Court of Civil Judge No.II Karachi, for the recovery of Rs. 36,600 on account of the sale to him of buffaloes. Alongwith the plaint, the respondent also filed an application under Order XXXVIII, rule 5, C. P. C., supported by his affidavit, alleging therein that the respondent was trying to dispose of the buffaloes, and was intending to leave the jurisdiction of the Court and so he be directed to furnish security for the suit amount in order to protect his interest in case his suit was ultimately decreed. The order of the learned trial Judge dated 11-3-1978, would show that when notice of the said application was sought to be served on the respondent, by the Bailiff he refused to accept the notice just as he refused to accept the notice of another application of the respondent filed under Order XXXIX, rules 1 and 2, C. P. C. Therefore, when the report of the Bailiff was received by the Court to the said effect, the Court directed the Nazir to go over to the premises of the respondent and prepare an inventory of his buffaloes. On 8-3-1978, however, the Nazir submitted his report to the Court saying therein that the petitioner, supported by his men, was not willing to allow him to prepare the required inventory, in fact he was showing every inclination to quarrel with him. On receipt of the said report, the respondent seems to have filed an application in the Court under section 151, C. P. C. Praying therein that his earlier application filed under Order XXXVIII, rule 5, C. P. C. For the attachment of the buffaloes may be granted and if necessary the attachment in question should be made with the Police aid. On 11-3-1978, the learned trial Judge allowed the said application with the result that the buffaloes were attached. Thereafter the petitioner, who seems to have become a little wiser, appeared in Court and succeeded to get the buffaloes released by furnishing the security of his immovable property which according to him was of the value of Rs. 40,000. The respondent, who was evidently aggrieved of the said order of the learned trial Judge, went in revision to the Court of the Additional District Judge complaining that the value of the property of the petitioner was much less than the value put on it by the trial Court, and so by accepting the same as security would not adequately protect his interest. The learned Additional District Judge, in order to satisfy himself, appointed an Architect from the Karachi Municipal Corporation to submit a report on the value of the said property of the petitioner. In obedience to the order of the Court, the Architect seems to have visited the site and in the due course submitted his report to the Court saying therein that the said property of the petitioner was worth Rs. 16,000 to Rs. 18,000. On receipt of the report in question, the learned Additional District Judge, therefore ld that the security already furnished by the petitioner to the trial Court was deficient to the extent of Rs. 22,000, and consequently directed the respondent to produce another security in the same amount within ten days. The learned counsel for the petitioner concedes before us that this order of the learned District Judge was neither complied with by his client nor was challenged in the High Court.
3. The record would further show that after his buffaloes were attached the petitioner filed an application Under Order IX, rule 13, C. P. C. For the setting aside of the said order, but the same was dismissed as misconceived in view of the finding recorded by the learned trial Judge that Order IX, rule 13, C. P. C. Was applicable only to the setting aside of ex parte decrees and not ex parte orders.
4. Being aggrieved of the said order, the petitioner went in appeal before the Additional District Judge VIII, Karachi, in which he also assailed the subsequent order of the trial Court, dated 28-8-1978, by which on the application of the respondent under section 151, C. P. C. The buffaloes of the petitioner had been attached with Police aid. The learned Additional District Judge, however, dismissed the said appeal on the ground that under Order XLIII, rule 1, C. P. C., the latter order of the trial Court was not appeal able. Now this order of the learned Additional District Judge has not been filed on the record of the case in order to enable us to see as to what finding was recorded by him on the other objection of the petitioner, However, in the revision application filed by him against the said order in the High Court, he seems to hay; complained (1) that in his application under Order XXXVIII, rule 5, C. P. C., the respondent had failed to make out a case for the attachment of his property and so the order passed on that application by the learned trial Judge was indefensible ; and (2) that the learned Additional District Judge was in error to hold that the said order of the attachment passed by the learned trial Court was not appealable under Order XLIII, rule 1, C. P. C. It seems to us that the first ground urged in his revision application in the High Court by the respondent had not been raised by him before the Additional District Judge and that is why it has received no treatment in the impugned order. We agreed with the learned counsel, however, that the High Court was in error to hold that the order of attachment of the buffaloes of his client was not appealable under Order XLIII, rule 1, C. P. C. It is clear to us that the learned Judge in the High Court with respect seems to have assumed as if the attachment order in question had been passed by the learned trial Judge under rule 5 of Order XXXVIII, C. P. C. Which, however, is not the case because in the said rule there is no power to pass any order of attachment. In point of fact the said power is contained in Rule 6 of Order XXXVIII, C. P. C. Under which alone the order of the learned trial Judge must be held to have been passed. In this view the said order was, therefore, appealable under Order XLIII, rule 1 (q), C. P.
5. C. And consequently the impugned order of the High Court cannot be sustained.
6. If the matter had rested there, perhaps leave to appeal should have been granted to the petitioner.
7. But the difficulty in his way is that on his own statement he had volunteered in the trial Court to furnish security- for the suit amount in order to protect the interest of the respondent in case his suit was decreed. It is true that the learned trial Judge had accepted his property as security for Rs.
8. 40.000. But the learned Additional District Judge on the report of an Architect from the Karachi Municipal Corporation, discovered that the property was not an adequate security, as it was deficient in value by about Rs. 22,000. In this view, the petitioner cannot be said to have any valid grievance, because all that the learned Additional District Judge had done was to make him fulfil his own undertaking given in the trial Court, i.e. To furnish adequate security to protect the interest of the respondent.
9. The learned counsel lastly argued that since the learned Additional District Judge and the High Court both have erroneously held that his appeal against the attachment order of the learned trial Judge passed under rule 6 of Order XXXVIII, C. P. C. Was incompetent, the petitioner may in the interest of justice be allowed an opportunity to furnish the balance of g security to the satisfaction of the trial Court in order to enable him to get his buffaloes released from the attachment. There seems to be force in this contention. We would, therefore, direct that if the petitioner would furnish the said security to the satisfaction of the trial Court within two months as of date, then his buffaloes may be released to him from attachment. The learned counsel, however, pointed out that the Court in which the case is pending is without a Presiding Officer and, therefore, it should be ordered that the said case may be transferred to another Court for disposal. Upon the peculiar facts of this case, we find the request to be reasonable.
10. Accordingly the learned District Judge, Karachi, would transfer the said case to another Court for disposal, but again the expeditious disposal of it would be subject to the condition that the petitioner must furnish the required security to the satisfaction of the trial Court within the period of two months. With these observations, this petition has no force in it and is dismissed.