MUHAMMAD SAEED Versus HANIFA BEGUM

1. This is an application under rule 15 of Sindh High Court Rules whereby the plaintiff has prayed that the order of Additional Registrar dated 10‑1‑1989 dismissing his application under Order 40 Rule 1 read with Section 151 C.P.C. be set aside.

2. The brief facts giving rise to this application are that on 28‑9‑1988 the following order was passed by consent of the parties in this case:‑

3. "Mr. Muhammad Asar Hussain, Advocate for the plaintiffs.

4. Mr. Abdul Qadir Advocate alongwith the defendant Naseeruddin.

5. By consent of the plaintiff's Advocate and the defendant and his Advocate it is ordered that the defendant shall pay the principal amount of Rs.90,000 to the plaintiffs in six equal monthly instalments. The first instalment shall be paid on or before 5th November 1988. In case decretal amount is not paid within 6 months, the execution will be issued. Suit and C M S 3641/88, 3642/88 and 3643/88 stand disposed of accordingly."

6. The defendant paid a sum of Rs.15,000 on 5‑11‑1988. Thereafter he did not pay any further instalment. On 4‑12‑1988 the defendant made an application under section 151 C.P.C. (C.M.A. No. 663/89) praying that the rate of instalment be reduced from Rs. 15,000 to Rs.2,500 per month. On 14‑12‑1988 the plaintiffs made an application under Order 40 Rule 1 read with section 151, C.P.C. praying that the Official Assignee or the Nazir of this Court be appointed as Receiver of the school alongwith the building standing on Plot No. 11‑F‑1248, Muslim Town, Karachi and the Plastic Factory, tools, plant and machinery, and building over plot and with plot of land bearing No.C‑1/269 Block No. 16‑B, North Karachi.

7. The Additional Registrar dismissed the application of the plaintiff on the ground that this application should have been moved in execution proceedings and not in the suit itself. He also observed that the property for which the Receiver is sought to be appointed was not subject‑matter of the suit.

8. So far as the prayer of the defendant for decreasing the amount of instalment is concerned it would suffice to say that the instalments were fixed in pursuance of a consent order. The plaintiff is not agreeable to decrease the A amount of instalment. As such the amount of instalment cannot be legally decreased. Even otherwise the Court has no power to order instalment or to decrease the amount of instalment without consent of the decree‑holder. Hence C.M.A. No. 663/89 is dismissed. So far as application of the plaintiff under Order 40 Rule 1 read with section 151 C.P.C. is concerned it may be pointed out that the period of 6 months was not over at the time of the passing of the order dated 28 9‑1988 and therefore the decree had not become executable on 1‑4‑12‑1988 when this application was presented. As such the Additional Registrar was not justified g in directing the plaintiff to file this application on the execution side of this Court. Reliance in this connection was made on the case of Vijayadas Hanumantdas Gudihal v. Shekharapa Anantappa Savanur reported in A 1 R 1941 Bombay 395 where it was held that it was doubtful whether the decree‑holder can apply under section 151 merely for attachment and that too before the decree becomes executable, but in any case such an application would if at all, lie to the Court passing the decree. The executing Court will have jurisdiction only when the decree becomes executable. If the decree‑holder wants relief for attachment he cannot go to the executing Court. The Court passing the decree might give him the proper relief by the appointment of a receiver under Order 40 Rule 1 as a receiver can be appointed even after the passing of a decree.

9. The plaintiff has sought appointment of the Receiver in the case mainly on the ground that he apprehends that the defendant will dispose of the property to defraud the decree‑holder and other creditors with an intention to delay or defeat the execution of his decree.

10. Only a period of one month or so it now left to the decree becoming executable and the appointment of Receiver will not be in the interest of justice in this case. Hence instead of appointing a Receiver I set aside the order of Additional Registrar dated 10‑1‑1989 and the application of the plaintiff dated 14 12‑1988 as well as C.M.A. No. 540/89 are granted and it is ordered that the property mentioned therein be attached under Order 38 Rule 51 C.P.C. before decree becomes executable. The plaintiff decree‑holder will be at liberty to move for sale of the property after the decree becomes executable in case the instalments are not paid by the defendant within the period of 6 months already fixed.

11. A.A./M‑1077/K Attachment ordered.