NATIONAL BANK OF PAKISTAN Versus A.M. PIRANI

This case has been called but no body was present for the respondents, nor there is any intimation from the learned counsel for the respondents. I have, therefore, proceeded with the revision. It is 11‑20 a.m.

2. This Revision is directed against an order, dated 31‑10‑1975 passed 'by the XIIth Civil Judge IInd Class Karachi in Suit No. 486 of 1969 Execution No. 83 of 1971, whereby he upheld the objection filed by judgment‑debtors Nos. 2, 3 and 4 to the execution application on the ground that defendant No.l company was under liquidation. The grievance of the applicant is that the suit was filed against the above judgment‑debtors Nos. 2, 3 and 4 as the guarantors on behalf of defendant No.l and, therefore, their liability is joint and several in terms of Section 128 of the Contract Act. I have gone through the copy ,pf the plaint and the written: statement. It appears that the above judgment‑debtors were sued in the capacity of the guarantors. The legal plea raised in their written statement was that the proceeding or liquidation of defendant No.l has been filed. It has been submitted by Mr. Tasawar Ali Hashim, learned counsel for the applicant that the decree was passed on 4-11‑1969 whereas the liquidation order was passed on 24‑5‑1971 and, therefore, the decree was passed when no order of liquidation was passed.

3. Since judgment‑debtors Nos. 2, 3 and 4 were sued in the capacity of guarantors, the learned Executing Court could not have dismissed the execution application on the ground that judgment‑debtor No.1 was liquidated or was under liquidation. The liability of judgment‑debtor No.l on the one hand and of judgment‑debtors Nos.2, 3 and 4 was joint and several and, therefore, the execution application could have not proceeded with against the above 3 judgment‑debtors. The Revision is therefore, allowed. The order is set side. The case is remanded to the executing Court to proceed with from the stage at which it was when the impugned order was passed. However, there will be no order as to costs.

H . B . T . / N‑55/ K Revision allowed.