' This execution application dated 17-12-2000 arises out of the Suit No,857 of 1985 filed by the decree-holder containing the following prayers:-
(a) Declaration that the plaintiff is entitled to have the 20,000 shares held by foreign nationals/ companies of the defendant-I's company transferred either exclusively in her name or proportionately in her name and that of the defendant-II, the only other Pakistani share-holder, both of whom are prepared to pay the face or break up value thereof and that the disputed transfer(s) thereof are of no legal effect and are void.
(b) Specific performance by issuance of necessary directions/orders to the defendants Nos.l-10 and 13 for the transfer of the said 20,000 shares in the defendant-1 company ostensibly held by foreign nationals/companies either jointly and proportionately in the names of the plaintiff and the defendant or exclusively, in default of defendant-II, in the name of the plaintiff against payment of the face or break up value thereof. On failure, the Nazir of this Honourable Court may be ordered td effect necessary transfer(s) of the said shares in favour of the plaintiff and/or the defendant-II in the foregoing terms.
(c) Permanent injunction restraining the defendants.
(d) Cost of suit.
(e)
2. This suit was dismissed on 22-1-1990. The decree-holder preferred H.C.A. No,17 of 1990 which was allowed on 13-12-1999 and the suit was decreed as prayed for. The judgment-debtor preferred et Civil Petition No,86-K of 2000 for leave ko appeal before the Honourable Supreme Court which was dismissed on 10-7-2002. On the decree-holder's application bearing C.M.A. No,41 of 2000, filed in H.C.A. No,17 of 1990 the Appellate Court amended the decree on 30-5-2002 and the decree-holder filed an amended execution application on 9-8-2003 and prayed for executing decree:- "(i) By enforcing the relief referred to in para.6 herein above which was granted by the Appellate Division Bench of this Honourable Court in H.C.A. No,17 of 1990 through judgment of 23-12-1999 and decree dated 15-11-2000 and confirmed by the Honourable Supreme Court by dismissing the Civil Petition for Leave to Appeal No,86-K of 2000 on 10-7-2000.
(ii) By ordering the Nazir of this Honourable Court to apply to judgment-debtor No,l's company for issuance of duplicate share certificates in respect of the said 20,000 shares held by judgment- debtor No,13 (who had purchased the same illegally from judgment-debtors Nos.4 to 6) and then the Nazir should further be directed to sell the said 20000 shares to the Pakistani Nationals namely the decree-holder and judgment-debtor No,11 purchasing the same, to sell the same to the decree-holder, the sale being at the face value or break up value of the said shares.
(iii) By attachment and sale of moveable and immovable properties of J.D. No,13."
3. Objections to the execution application were filed by the judgment-debtor. The main controversy between the parties was for the date of determination of the value of shares for the purpose of execution.
4. Learned counsel (s) for decree-holder contended that since the suit has been decreed as prayed for, the judgment-debtor No,1 be directed to transfer shares of judgment-debtors Nos.4, 5 and 6 to the decree-holder on their paying face or break up value of the 20,000.00 shares. They contended that according to para.(14) of the counter-affidavit to C.M.A. No,14 of 2000 filed by judgment-debtor No,2 (M. Moonis), the Managing Director of judgment-debtor-1, in the High Court Appeal No,17 of 1990 the break up value of shares at the time of transfer to the judgment-debtor No,13 by judgment-debtor Nos.4, 5 and 6 was Rs,37 per share, therefore, they were liable to pay only the face or break up value of the shares at such rate. Para.(14) of the counter-affidavit of judgment-debtor No,2 is reproduced hereunder:-- "That in September, 1985, when shares were transferred to Scan Maritime, the break up value of the shares of the company was Rs,37 per share, now because of better management and support provided by Scan Maritime, the value of shares at the end of 1999 has gone up to about Rs,1100 per share."
5. It was further contended by them that in view of Supreme Court judgment, the decree-holder had a pre-emptive right over these shares. They relied upon the cases of Khurshid Ahmad v. Zafar Iqbal 1988 SCM R 978, Rahim Baksh and 2 others v. Allah Jiwaya and others 1992 CLC 2433. Wherein it has been held that a pre-emptor is neither a seller nor purchaser but a substitute for original seller; the only thing thus that was required now to be done was that their names be substituted in place of the name of the judgment-debtor No,13 on payment of break up value of the shares as it was in September, 1985.
6. Mr.. Kamal Azfar and Mr. Sadatyar Khan appeared for the judgment-debtors Nos.1, 2 and 13. The main contention of Mr. Azfar is that the following dates can be considered for the determination of the break up value of the shares:--
(1) The date when the appeal was allowed i.e, on 13-12-1999.
(2) The date on which the first decree was drawn up for specific performance dated 24-11-2000.
(3) The date of the judgment of the Supreme Court on 10-7-2002.
(4) The date of the amended decree dated 19-8-2002.
(5) The date of presentation of the application C.M.A. No,1151 of 2003 i.e, 27-5-2003.
(6) The date the Execution Application is disposed of.
7. Mr. Azfar submitted that date of filing the suit is not to be considered as the decree-holder at no point of time ever deposited the price of the shares in Court nor offered to do so up to the filing of this execution application. According to him this showed their mala fides and that they did not want to part with any money. It was incumbent upon decree-holders to deposit the price of shares in Court while the restraints were imposed on judgment-'debtor's from carrying on their normal business. He further ,submitted that it is a normal practice in suits for specific performance. He contended that where the vendee had not deposited the amount in Court, the Courts have allowed the vendor to be compensated with a higher amount than the price fixed in the agreement to sell.
He added that in para.(14) of the counter-affidavit filed by judgment-debtor, in the High Court appeal, and referred to by the learned counsel for decree-holder, it was stated that value at the time of transaction between judgment-debtors Nos.4, 5, 6 and 13 in 1985 was Rs,37 per share while in 1999 it was raised to 1100 to 1200 per share. He stated that judgment-debtor had never conceded to the price of Rs,37 per share but it was only an explanation to describe the rise in the value of the shares due to good management by the judgment-debtor No,2.
8. Mr. Azfar also referred to para.(9) of counter-affidavit filed in this execution application by judgment-debtor No,2 for self and for judgment-debtor No,1, wherein he reiterated that in 1985 the face value of the disputed share was about Rs,37 per share while it raised upto Rs,1100 or 1200 in 1999. He contended that the latest audit report shows that the value of the shares has increased to more then 2700 per share. He submitted that in the circumstances, it will be equitable if the decree-holder was directed to pay to judgment-debtors Nos.4 to 6 the sum of Rs,2700 per share as shown in the audit report instead of Rs,37 or Rs,1100 to 1200 per share.
9. Mr. Japanwala, appeared for judgment-debtors Nos.4, 5 and 6 and adopted the arguments of Mr. Azfar.
10. I have considered the submissions of the two sides. The plaint including the prayer clauses and the decree of the Appellate Court are silent as to what value per share is payable by the decree- holder to the judgment-debtors Nos.4 to 6 for satisfaction of the decree. The plaint, prayer clauses and the decree are also silent as to the date for determining the value of shares.
11. Admittedly the suit was filed in 1985, and it was decreed by the Appellate Court on 13-12-1999 and the leave to appeal before Honourable Supreme Court was disallowed on 10-7-2002. Mr. Azfar though had indicated fix dates for determination of the value of the shares however, during the arguments he emphasized only on one date i.e, 13-12-1999 when the appeal was allowed and suit was decreed. As against this the other side had insisted that the date of the filing of the suit or the actual transaction, which took place in 1985 be considered for determining the value of the shares.
In view of the pleadings and the arguments of the parties, we are left with two dates for determining the date of execution of the decree. One is the date when the suit was filed and the other when the Appellate Court decreed the suit.
12. In F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 while dealing the effect of the original order and the order of the Appellate Tribunal, the Honourable Supreme Court after taking into consideration the previous case-law hold on page 529 that (i) when an appeal is filed the matter become sub judice and is reheard by the Appellate Court which does not act merely as a Court of error; (ii) after there has been an appeal even though an Appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the Appellate Court; (iii) the original and appellate proceedings are steps in one proceedings. While concluding at page 536 the Honourable Supreme Court observed that when appeal was in fact filed the matter become sub judice and therefore, right to sue would accrue only when it was decided. And when it was decided only the order of the appellate Tribunal existed, the original order having disappeared and merged in the appellate order which order would then be the basis of a suit.
13. While applying principles laid down in F.A. Khan (supra) the irresistible conclusion is that in the present case, the date for execution of the decree would be 13-12-1999 when the appeal of the decree-holders was allowed and the suit was decreed.
14. The next question is as to what consideration is to be paid by the decree-holders to the judgment-debtors Nos.4 to 6 for performing their part as purchaser of the disputed shares. This can be resolved only by assessing the face/break up value of the shares in December, 1999 when the suit was decreed as there is no admitted value available before the Court of the said shares for the aforesaid period.
15. Therefore, Messrs Taseer Hadi, Chartered Accountants are appointed auditors at the cost of the decree-holders and the judgment-debtors Nos.4, 5 and 6 to the equally contributed, to ascertain the face/break-up value of the shares on 13-12-1999.
16. The auditors to submit the report within a period of 3 months. All parties to the proceedings are directed to provide information/assistance to the auditors as and when required by them.