IN THE SUPREME COURT OF PAKISTAN,

(Appellate Jurisdiction)

C.P.L.A. No. _________________/2008

Allied Bank Limited, having its registered office at 8 Egerton

Road/Kashmir Road, Lahore and a branch amongst others known as
Shahdara Branch, situated at Main G.T. Road, Shahdara, Lahore

VERSUS
1. M/s Diamond Industries Limited, 23 K.M., Multan Road, Mohlanwal,
Lahore, through Iftikhar A. Shaffi.

2. Sohail Malik, S/o (Late) Muzaffar Malik, resident of 72-A, Hassan

Town Near Awan Town, Lahore.

3. Mr. Amar-ullah Gulzar, son of Gulzar Ahmad resident of 508-C,

Faisal Town, Lahore.

4. Mr. Shariq Iftikhar son of Iftikhar A. Shafi resident of 93-D, Model

Town, Lahore.

5. Waqar Ahmad Shafi, son of Mian S.M. Sahaffi, resident of 94-D,

Model Town, Lahore.

6. Mr. M.H. Pervaiz son of Muhammad Sharif resident of 87-J, Gulberg

III, Lahore.

7. Mr. Muhammad Saeed son of Muhammad Sharif resident of 19-Umar

4 Block, Allama Iqbal Town, Lahore.

8. Iftikhar A. Shaffi son of Mian Mohammad Shaffi resident of 93-D

Model Town, Lahore.

9. Mr. Bilal Ejaz son of (Late) Mian Ijaz A. Shaffi resident of 42, Al-
Hamra Society, Tipu Sultan Road, Karachi.

10. Mrs. Farah Waqar wife of Waqar Ahmad Shaffi resident of 94-D,
Model Town, Lahore.

11. Mrs. Seema Iftikhar wife of Iftikhar A. Shaffi resident of 93-D, Model
Town, Lahore.

12. M/s Citifoam Industries (Pvt.) Limited having its office at 23-KM
Multan Road, Mohlanwal, Lahore through Iftikhar A. Shaffi.

13. Mr. Muzammal Ejaz son of (Late) Mian Ijaz A. Shaffi resident of 42,
Al-Hamra Society, Tipu Sultan Road, Karachi.
PETITION FOR LEAVE TO APPEAL UNDER ARTICLE 1852 OF
THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN,
1973 AGAINST THE ORDER DATED 2-7-2008 PASSED BY AN
HONOURABLE DIVISION BENCH OF THE HONOURABLE
LAHORE HIGH COURT IN RFA NO. 431/2007.

Respectfully Sheweth:

1. That the instant Petition is directed against the Order dated 2-7-2008 ("the
Impugned Order") passed by a Division Bench of the Honourable Lahore
High Court in C.M. No. 5/2008 in RFA No. 431/2007 whereby execution of
a decree totaling Rs. 253,652,224.00 with costs and cost of funds in favour
of the Petitioner Bank has been stayed without the statement of any reason
whatsoever. The Impugned Order has been passed suddenly, without notice,
on a fresh Application made by the Respondents even though an earlier
application for suspension of decree had remained pending for several
months without having been seriously pressed by the Respondents. The
present Petition raises the following questions of law of utmost importance:

a) Whether the execution of a judgment and decree passed in terms of

the Financial Institutions (Recovery of Finances) Ordinance, 2001
can be suspended prior to the admission of the Appeal and without
hearing the decree-holder as mandated by section 22 of the aforesaid
Ordinance of 2001?

b) Whether an order passed by the Executing Court while disposing off

the objection petition by a judgment debtor may be collaterally
challenged in the Appeal filed against the judgment and decree
giving rise to the execution proceedings? Whether an order passed in
the course of execution of decree furnishes a fresh ground for the
suspension of the judgment and decree in favour of the decree-
holder?

2. That the present Petition arises out of the following facts and
circumstances:

a) The Petitioner Bank had filed on 8-8-2005 a suit bearing C.O.S. No.
18/2005 in terms of Section 9 of the Financial Institutions (Recovery
of Finances) Ordinance, 2001 before the Honourable Lahore High
Court acting as the Banking Court.

b) The Respondents had filed a Petition for Leave to Defend before the
Honourable Lahore High Court. After hearing extensive arguments
addressed by both sides the Honourable High Court was pleased
 through an Order dated 17-1-2007 to allow conditional leave to the
Defendants. The conditional leave granted by the Honourable
Lahore High Court was subjected to deposit by the Respondents a
sum of Rs. 78.6865 million within a period of 90 days. The
Respondents failed to abide by the condition imposed by the
Honourable Court whereupon along with a judgment dated 12-10-
2007 a decree was passed against the Respondents in the sum of Rs.
253,652,224.00 with costs.

c) That an Appeal bearing RFA No. 431/2007 was filed by the

Respondents on 17 December, 2007 against the aforesaid order dated
12-10-2007. Along with the aforesaid Appeal an Application bearing
C.M. No. 1/2007 for interim relief in the form of suspension of the
aforesaid judgment and decree was also filed. From a perusal of the
Order Sheet in RFA No. 431/2007 it is clear that after filing of the
appeal no serious effort was made on behalf of the Respondents to
argue either the appeal or the application for interim relief.

The Learned Counsel for the Respondents failed to appear before the
court on the very first date of hearing in the appeal which was 17-12-
2007. On the said date the matter was adjourned without fixation of
any specific date.

Thereafter, the case was again fixed on 29-1-2008 on which date the
main counsel for the appellants again failed to appear and a request
for adjournment was made. The case was adjourned to a date in
office.

That on 26-2-2008 the Application for interim relief, C.M. No. 1-

C/2007 was fixed before the Honourable Court. On the said date the
counsel for the appellants requested that the application be fixed
along with the main appeal. It was accordingly ordered that the
appeal and application be fixed on 5-3-2008.

That the matter could not be taken up on 5-3-2008 and was

thereafter taken up on 10-3-2008 and then again on 19-5-2008. On
this last date notice was issued for the first time to the present
Petitioner to join the limine hearing in the appeal filed by the
Respondents.
 That upon receipt of the notice counsel for the present Petitioner
appeared before the Honourable Court on 18-6-2008 and filed his
Power of Attorney. The case was adjourned to be listed for limine
hearing without any particular date being fixed. The order passed on
18-6-2008 is reproduced here-in-below for ease of reference:

18-06-2008 Mr. Khurram Saeed, Advocate

Let the accompanying documents be taken on record. C.M. is
disposed of.

Main case RFA No. 431-07

2. Mirza Muzaffar Hussain, Advocate has filed his power
of attorney for respondents. Records be requisitioned and the
case to be listed for limine hearing accordingly.

(ALI AKBAR QURESHI) (MAULVI ANWARUL HAQ)

JUDGE JUDGE

d) That after passage of the order dated 18-6-2008 the Respondents

moved a fresh application bearing C.M. No. 5/2008 which was taken
up as an urgent matter on 2-7-2008. An ex parte order was passed by
the Honourable Division Bench of the Lahore High Court wherein
no reasons for the grant of an interim injunction were disclosed. The
execution proceedings underway were directed to be suspended
subject to the Respondents depositing a sum of Rs. 39.3432 million
with the D.R. (JUDL) by 29-7-2008. The aforesaid order is
reproduced here-in-below for ease of reference:

C.M. No. 5-08

02-07-2008 Mr. Khurram Saeed, Advocate
Subject to notice and further deposit of Rs. 39.3432 million
with D.R. (Judl) of this court (with reference to the decretal amount
as well as sale expenses incurred by decree holder) on or before 29-
7-2008 further execution process shall remain suspended and the
sale shall not take place. However, if the needful is not done within
the said period of time, this order shall stand recalled automatically.

(ALI AKBAR QURESHI) (MAULVI ANWARUL HAQ)

JUDGE JUDGE

3. That on 30-6-2008 the Honourable Single Judge of the Lahore High Court
acting as the Executing Court had approved the terms of a court auction of
 the various properties available for an attempt to satisfy the huge liability of
the Respondents towards the present Petitioner. The said order dated 30-6-
2008 had duly taken into account the objections raised by the Respondents
and the reserve price for several properties was enhanced after taking into
account the contentions advanced on behalf of the Respondents. It may
kindly be noted that the process of approval of the terms of sale and
fixation of reserve prices a sensitive to time and circumstances and once
disrupted can take a long time before fresh orders approving the terms of
sale may be procured. That a great deal of work and effort on the part of the
court auctioneers had been expended so as to bring matters to a stage
enabling the order of 30-6-2008 to be passed.

4. That the Impugned Order dated 2-7-2008 is without lawful authority and is
liable to be set aside inter alia on the following:

GROUNDS

i) That the Impugned Order is not a speaking order. No ground

whatsoever worthy of judicial consideration had been raised in C.M.
No. 5/2008 so as to cause a suspension of the entire execution
process without notice to the present Petitioner. The auction dates
approved by the Honourable Executing Court on 30 June, 2008 were
several weeks beyond 2-7-2008 and notice to the present Petitioner
could easily have been issued for an early date.

ii) That the Respondents had filed an Objection Petition before the
Honourable Executing Court which was disposed off, after being
partially accepted, vide Order dated 30-6-2008. Any grievance
against the aforesaid order dated 30-6-2008 ought to have been
agitated in independent proceedings and not by way of an
application in the pending appeal against the judgment and decree
dated 12-10-2007. That the suspension of the execution process
through the order dated 2-7-2008 has been made in a capricious
manner and the relatively paltry amount of Rs. 39.3432 million that
the Respondents have been directed to deposit was arrived at
arbitrarily.

iii) That the Impugned Order has blocked the recovery of amounts that
are admittedly due to the Petitioner.
 iv) That the Impugned Order has been passed in neglect of the terms of
the Order 21 Rule 23A of the Code of Civil Procedures, 1908.

v) That the Impugned Order has been passed in violation of the

provisions of section 22 of the Financial Institutions (Recovery of
Finances) Ordinance, 2001. The said order could not have been
passed prior to the admission of the appeal and without affording the
present Petitioner, who is a decree-holder an opportunity of being
heard. Furthermore, it is a mandatory requirement of the law that the
appellant be directed to deposit in cash the decretal amount or
furnish security equal in value to such amount. The Impugned Order
has been passed without any consideration to the express
requirements of section 22 of the Ordinance of 2001.

PRAYER

In view of the foregoing, it is respectfully prayed that this Honourable

Court may be pleased to grant leave to appeal against the Impugned Order dated 2-
7-2008 and accept the Appeal by setting aside the said Impugned Order.

It is also prayed that by way of interim relief this Honourable Court may be
pleased to suspend the order dated 2-7-2008 so as to allow the execution
proceedings to continue.

Any other order deemed just and fair by this Honourable Court may also
kindly be made.

DRAWN BY FILED BY

SALMAN AKRAM RAJA ADVOCATE-ON-RECORD

Advocate Supreme Court
M.A. (Cantab), LL.M (London)
LL.M (Harvard)

CERTIFICATE:
As per instructions of the Petitioner, it is first petition against the Impugned Order
dated 2-7-2008 before this Honourable Court.

ADVOCATE-ON-RECORD
 IN THE SUPREME COURT OF PAKISTAN,
(Appellate Jurisdiction)

C.M.A. No. __________________/2008

In
C.P.L.A. No. _________________/2008

Allied Bank Limited, having its registered office at 8 Egerton

Road/Kashmir Road, Lahore and a branch amongst others known as
Shahdara Branch, situated at Main G.T. Road, Shahdara, Lahore

…….APPLICANT

VERSUS
M/s Diamond Industries Limited and others
…….RESPONDENTS

APPLICATION UNDER ORDER XXXIII RULE 6 OF THE

SUPREME COURT RULES, 1980 FOR GRANT OF INTERIM
RELIEF.

Respectfully Sheweth:

1. That the Petitioner has filed the titled petition before this Honourable Court
not yet been fixed for hearing.

2. That the contents of the enclosed petition may kindly be read as a part and
parcel of this application.

3. That the petitioner has a good prima facie arguable case in their favour and
there is every likelihood of its success in the long run, on the basis of the
grounds taken therein.

a) The Petitioner Bank had filed on 8-8-2005 a suit bearing C.O.S. No.
18/2005 in terms of Section 9 of the Financial Institutions (Recovery
of Finances) Ordinance, 2001 before the Honourable Lahore High
Court acting as the Banking Court.
b) The Respondents had filed a Petition for Leave to Defend before the
Honourable Lahore High Court. After hearing extensive arguments
addressed by both sides the Honourable High Court was pleased
through an Order dated 17-1-2007 to allow conditional leave to the
Defendants. The conditional leave granted by the Honourable
Lahore High Court was subjected to deposit by the Respondents a
sum of Rs. 78.6865 million within a period of 90 days. The
Respondents failed to abide by the condition imposed by the
Honourable Court whereupon along with a judgment dated 12-10-
2007 a decree was passed against the Respondents in the sum of Rs.
253,652,224.00 with costs.

c) That an Appeal bearing RFA No. 431/2007 was filed by the

Respondents on 17 December, 2007 against the aforesaid order dated
12-10-2007. Along with the aforesaid Appeal an Application bearing
C.M. No. 1/2007 for interim relief in the form of suspension of the
aforesaid judgment and decree was also filed. From a perusal of the
Order Sheet in RFA No. 431/2007 it is clear that after filing of the
appeal no serious effort was made on behalf of the Respondents to
argue either the appeal or the application for interim relief.

The Learned Counsel for the Respondents failed to appear before the
court on the very first date of hearing in the appeal which was 17-12-
2007. On the said date the matter was adjourned without fixation of
any specific date.

Thereafter, the case was again fixed on 29-1-2008 on which date the
main counsel for the appellants again failed to appear and a request
for adjournment was made. The case was adjourned to a date in
office.

That on 26-2-2008 the Application for interim relief, C.M. No. 1-

C/2007 was fixed before the Honourable Court. On the said date the
counsel for the appellants requested that the application be fixed
along with the main appeal. It was accordingly ordered that the
appeal and application be fixed on 5-3-2008.

That the matter could not be taken up on 5-3-2008 and was

thereafter taken up on 10-3-2008 and then again on 19-5-2008. On
this last date notice was issued for the first time to the present
 Petitioner to join the limine hearing in the appeal filed by the
Respondents.

That upon receipt of the notice counsel for the present Petitioner
appeared before the Honourable Court on 18-6-2008 and filed his
Power of Attorney. The case was adjourned to be listed for limine
hearing without any particular date being fixed. The order passed on
18-6-2008 is reproduced here-in-below for ease of reference:

18-06-2008 Mr. Khurram Saeed, Advocate

Let the accompanying documents be taken on record. C.M. is

disposed of.

Main case RFA No. 431-07

2. Mirza Muzaffar Hussain, Advocate has filed his power
of attorney for respondents. Records be requisitioned and the
case to be listed for limine hearing accordingly.

(ALI AKBAR QURESHI) (MAULVI ANWARUL HAQ)

JUDGE JUDGE

d) That after passage of the order dated 18-6-2008 the Respondents

moved a fresh application bearing C.M. No. 5/2008 which was taken
up as an urgent matter on 2-7-2008. An ex parte order was passed by
the Honourable Division Bench of the Lahore High Court wherein
no reasons for the grant of an interim injunction were disclosed. The
execution proceedings underway were directed to be suspended
subject to the Respondents depositing a sum of Rs. 39.3432 million
with the D.R. (JUDL) by 29-7-2008. The aforesaid order is
reproduced here-in-below for ease of reference:

C.M. No. 5-08

02-07-2008 Mr. Khurram Saeed, Advocate

Subject to notice and further deposit of Rs. 39.3432 million

with D.R. (Judl) of this court (with reference to the decretal amount
as well as sale expenses incurred by decree holder) on or before 29-
7-2008 further execution process shall remain suspended and the
 sale shall not take place. However, if the needful is not done within
the said period of time, this order shall stand recalled automatically.

(ALI AKBAR QURESHI) (MAULVI ANWARUL HAQ)

JUDGE JUDGE

4. That on 30-6-2008 the Honourable Single Judge of the Lahore High Court
acting as the Executing Court had approved the terms of a court auction of
the various properties available for an attempt to satisfy the huge liability of
the Respondents towards the present Petitioner. The said order dated 30-6-
2008 had duly taken into account the objections raised by the Respondents
and the reserve price for several properties was enhanced after taking into
account the contentions advanced on behalf of the Respondents. It may
kindly be noted that the process of approval of the terms of sale and
fixation of reserve prices a sensitive to time and circumstances and once
disrupted can take a long time before fresh orders approving the terms of
sale may be procured. That a great deal of work and effort on the part of the
court auctioneers had been expended so as to bring matters to a stage
enabling the order of 30-6-2008 to be passed.

5. That the Impugned Order dated 2-7-2008 is without lawful authority and is
liable to be set aside inter alia on the following:

GROUNDS

i) That the Impugned Order is not a speaking order. No ground

whatsoever worthy of judicial consideration had been raised in C.M.
No. 5/2008 so as to cause a suspension of the entire execution
process without notice to the present Petitioner. The auction dates
approved by the Honourable Executing Court on 30 June, 2008 were
several weeks beyond 2-7-2008 and notice to the present Petitioner
could easily have been issued for an early date.

ii) That the Respondents had filed an Objection Petition before the
Honourable Executing Court which was disposed off, after being
partially accepted, vide Order dated 30-6-2008. Any grievance
against the aforesaid order dated 30-6-2008 ought to have been
agitated in independent proceedings and not by way of an
application in the pending appeal against the judgment and decree
dated 12-10-2007. That the suspension of the execution process
through the order dated 2-7-2008 has been made in a capricious
manner and the relatively paltry amount of Rs. 39.3432 million that
 the Respondents have been directed to deposit was arrived at
arbitrarily.

iii) That the Impugned Order has blocked the recovery of amounts that
are admittedly due to the Petitioner.

iv) That the Impugned Order has been passed in neglect of the terms of
the Order 21 Rule 23A of the Code of Civil Procedures, 1908.

v) That the Impugned Order has been passed in violation of the

provisions of section 22 of the Financial Institutions (Recovery of
Finances) Ordinance, 2001. The said order could not have been
passed prior to the admission of the appeal and without affording the
present Petitioner, who is a decree-holder an opportunity of being
heard. Furthermore, it is a mandatory requirement of the law that the
appellant be directed to deposit in cash the decretal amount or
furnish security equal in value to such amount. The Impugned Order
has been passed without any consideration to the express
requirements of section 22 of the Ordinance of 2001.

6. That if the operation of the Impugned Judgment is not suspended, the

Petitioner would suffer an irreparable loss and injury.

PRAYER

It is most respectfully prayed that the interim relief before this Honourable
Court may be pleased to suspend the order dated 02-07-2008 so as to allow the
execution proceedings to continue.

Any other order deemed just and fair by this Honourable Court may also
kindly be made.

DRAWN BY FILED BY

SALMAN AKRAM RAJA ADVOCATE-ON-RECORD

Advocate Supreme Court
M.A. (Cantab), LL.M (London)
LL.M (Harvard)