INTERACT PRIVATE LTD. Versus AZAM SULTAN SUHARWARDY
ATIR MAHMOOD, J.--- Through this appeal, appellant has challenged the legality of order dated 19.12.2013 passed by learned Additional District Judge, Lahore, whereby, the objection petition filed by the appellant was dismissed.
2. Precisely, the facts of the case are that respondent No.1 got a decree for recovery of damages on account of defamation to the tune of Rs.10 Million from learned District Judge, Lahore against respondents Nos.2, 3 and 4. Subsequently, execution petition was filed by the decree holder, wherein, it was prayed that the said decree be satisfied by selling the shares of respondents Nos.2 to 4, which was allowed vide order dated 06.02.2012 by the learned Executing Court. Feeling aggrieved, appellant filed an objection petition under Order XXI Rule 58 of C.P.C. before learned Executing Court along with an application for grant of interim relief qua the sale of shares of judgment debtors which was dismissed vide order dated 10.02.2012. Consequently, feeling dissatisfied, appellant assailed said order before this Court by way of filing FAO No.140/2012 before this Court, which was allowed through order dated 07.06.2012 and learned Executing Court was restrained from selling the shares of judgment debtors. In the objection petition before learned Executing Court, the respondents filed reply. Issues were framed and evidence was recorded by both the parties. Vide order dated 19.12.2013, the learned Executing Court dismissed the objection petition. Hence, this appeal has been filed.
3. Learned counsel for the appellant contends that the impugned order is against the law and facts of the case; that learned Executing Court has not looked into matter with reference to the section 37 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, wherein, it has been stated that the provisions of this Ordinance shall have effect notwithstanding to the contrary contained in any other law for the time being in force, or any contract, agreement or any other instrument whatsoever; that learned executing Court have also failed to appreciate the law that PEMRA Ordinance, 2002 as well as PEMRA, Rules, 2009 imposes restriction on the free transferability of the shares of members/shareholders of the appellant company as enshrined in Rule 16(2) of Rules ibid; that the appellant company is not the judgment debtor in the decree neither the party to the case but order with regard to sale of shares of judgment debtors is amounting to cause irreparable loss and injury to the vital interests of the appellant company; that impugned order is the result of misreading and non-reading of evidence available on the record; that learned executing Court while passing the impugned order committed material illegality and regularity. Lastly, prayed that this appeal be allowed and impugned order having no merits be set aside. Reliance has been placed upon "M.C.B. Bank Ltd. v. Duty Free Shop Ltd." (PLD 2011 Karachi 586) and "Sachida Prasad Singh and others v. Giraja Prasad Singh and another" (AIR 1980 Pat 136). Learned counsel for respondents Nos.2 to 4 has adopted the arguments of learned counsel for the petitioner.
4. In opposition, respondent No.1 has vehemently opposed this appeal and fully supported the impugned order and placed his reliance on judgments reported as "National Insurance Corporation and others v. Pakistan National Shipping Corporation and others" (2006 CLD 85), "Islamabad Stock Exchange (Guarantee) Limited, Islamabad through Secretary v. First Punjab Modaraba through Punjab Madaraba Services (Private) Limited, and 2 others" (2003 CLD 1587), "Pattoki Sugar Mills Limited through Chief Executive v. Water and Power Development Authority (WAPDA) through Chairman and 4 others" (2007 CLD 659) and "Nan Fung v. H. Pir Muhammad Shamsdin" (PLD 1995 Karachi 421).
5. Arguments advanced by the parties were heard and record has been perused.
6. Perusal of the file reveals that respondent No.1, under the provisions of Defamation Ordinance, 2002 filed a suit against the remaining respondents which was ex parte decreed on 04.09.2010. For the satisfaction of said decree, execution petition was filed by the decree holder against the judgments debtor. Learned court below, vide order dated 15.12.2010, in order to satisfy the decree passed the order in the following terms:
(Emphasis provided)
Thereafter, on 08.03.2012, an objection petition under Order XXI Rule 58 read with sections 47 and 151, C.P.C. was filed by the appellant-company which was resisted by the other side and following issues were framed:
ISSUES
1. Whether the petitioner has no cause of action and locus standi to file the instant petition? OPR
2. Whether the objection petition has been filed incompletely and fraudulently and same is liable to be dismissed? OPR
3. Whether the petition is barred by time and liable to be dismissed? OPR
4. Whether the shares of objection petitioner are not liable to be attached under the PEMRA law? OPA
5. If the shares of objection petitioner are auctioned, then the company of the petitioner would be ceased to exist? OPA
6. Whether the sufficient grounds are available to set aside the impugned order dated 6/2/2012 on the grounds mentioned in the petition? OPA
6-A Whether the suit has been filed without proper resolution of Board of directors of objection petitioner company, hence the petition is not maintainable? OPR
7. Relief.
7. Afterwards, learned executing Court recorded the evidence of both the parties and finally dismissed the objection petition vide impugned order dated 19.12.2013.
8. Above referred issues reduced into writing out of the divergent pleadings of the parties by the learned trial Court emulated that there are certain controversies exist between the parties, however, issue No.3 is the crucial one as the matter can be finally decided on the said issue, therefore, I intend to decide the same first without entering into the merits of the case.
9. Admittedly, order of attachment was passed by the learned executing Court on 15.12.2010 and objection petition was filed by the appellant-company on 08.03.2012 whereas, in terms of Order XXI Rule 58, C.P.C., the period for filing an objection petition against first attachment is one year. It would be advantageous to reproduce Order XXI Rule 58, C.P.C. as under:
"58. Investigation of claims to, and objections to attachment of, attached property .---(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects as if he was a party to the suit.
[Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector:-
(a) proves title acquired in good faith and for consideration subsequent to the date of the first attachment;
(b) proves that his predecessors in interest, whether their interest existed at the time of such attachment or was acquired thereafter fraudulently omitted to make a claim or objection; and
(c) impleads all such predecessors in interest as parties."
(Emphasis provided)
The stance of the appellant with regard to the limitation of filing of objection petition is that he was not aware with the proceedings as well as attachment order dated 15.12.2010 passed by learned executing Court, therefore, the delay was occurred in filing of the said petition. Scrutiny of the record divulged that against whom the ex parte decree was passed are the Chief Executive and Directors of the company and all these were office bearers who were well versed with the attachment order since day one. A resolution, duly signed by two of the judgments debtors namely Zia Shahid and Nosheen Imran is also available on the record, wherein Mr. Azher Latif was allowed to sign and file objection petition. Furthermore, when order dated 15.12.2010 was passed, an application was filed for re-calling of said order which was filed on 22.01.2011 and accordingly dismissed on 07.05.2015 by the learned Civil Judge, Lahore. Feeling aggrieved, they filed C.R. No.1991 of 2015 before this Court which was subsequently withdrawn in order to file objection petition before learned Executing Court. All the above-referred proceedings were initiated by the judgments debtors who were directors of company, therefore, it is manifestly clear that appellant-company was well in knowledge regarding the attachment order i.e. 15.12.2010 and filed the objection petition with the delay of about three months and 24 days, whereas it should have been filed at the most by 15.12.2011.
10. Above quoted proviso i.e. Order XXI Rule 58(1), C.P.C., clears that where an objection is made to attachment of any property in execution of a decree on the ground that such property is not liable to such attachment, the Court shall investigate the objection while exercising his powers envisaged under the law keeping in view all other respects, however, no such investigation shall be made where it comes into view to the Court that objection has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier. Therefore, primary question as stated above is that in order to investigate the matter, it has to be seen that objection was made in time or not, in the case in hand, the result is in negative. So, in my point of view no investigation into the claim or objections can be made in view of the Proviso to Order XXI, Rule 58(1), C.P.C. This case is one of the bad example of the delay which does not entitle for any privilege to the appellant, at all. Appellant has badly failed to support his assertion that he was not aware with the attachment order. Moreover, no decision can cut down the express and clear words used by the legislature that where the Court considers that the claim or objection was designedly or unnecessarily delayed no investigation shall be made. In the circumstances, the objections are liable to the dismissed on this sole ground alone, as that they fall against the Order XXI, Rule 58(1), C.P.C. As far as the other merits of the case are concerned, I am of the considered opinion that if a lis is liable to be dismissed on the question of limitation, then there is no need to discuss or dilate upon the merits of the case.
11. Case law relied by the appellant have no nexus with the instant appeal. The impugned order passed by learned executing Court is in accordance with law. I see no illegality therein. No interference is called for.
12. For what has been discussed above, this appeal is without any merit. The same is accordingly dismissed. No order as to cost.
MH/I-9/L Appeal dismissed.