PAKISTAN Law and Practice Contributed by: Abdul Muqtadir Khan, Syed Absar Rahat Rizvi, Hammad Saleem and Zair Zaman Khan, Khan & Arshad
Freezing and Disclosure Orders Freezing and disclosure relief before judgment is avail - able in limited forms. A plaintiff who can show that the defendant is about to remove or dispose of property in order to obstruct or delay execution of a prospective decree may seek attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (CPC), under which the court directs the defend - ant to furnish security or attaches the specified prop - erty. Interim injunctions under Order XXXIX Rules 1 and 2 of the CPC are also used to restrain the alienation of particular assets during a suit. The court may also appoint a receiver over the property under Order XL of the CPC. In banking matters, the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides a further interim and security-preservation regime before the Banking Courts. Under Section 30 of the CPC, the court may, on the application of a party or of its own motion, order the delivery and answering of interrogatories and the discovery, inspection and production of documents, and may summon a per - son to produce documents in evidence. These pow - ers are elaborated in Order XI, under which a party may require the opposing party to make discovery on oath of documents in its possession or power (Rule 12) and to produce them for inspection (Rules 14 and 15). However, such orders are confined to docu - ments relating to the matter in issue in the suit and are not a general means of ascertaining the defendant’s assets; a party that fails to comply may have its suit dismissed or its defence struck out (Rule 21). There is, however, no equivalent of a worldwide freezing order over unspecified assets, and no general pre-judgment asset disclosure order against a defendant; disclosure is obtained after judgment through the mechanisms described below. The foregoing measures operate only until judgment. Once a decree has been obtained, the judgment- debtor’s assets are charged through attachment in execution under Order XXI CPC. The executing court attaches property in the following manner: • actual seizure of movable property in the judg - ment-debtor’s possession (Rule 43);
• prohibitory order in respect of debts, shares and other intangibles on the person holding them (Rule 46); and • an order prohibiting the judgment-debtor from transferring or creating a charge on immovable property (Rule 54). Under Section 64 CPC, any private alienation of the property after attachment is void as against claims enforceable under the attachment. Post-Judgment Examination of the Judgment- Debtor Following the grant of a money decree, Order XXI Rule 41 of the CPC provides an important mechanism for identifying the judgment-debtor’s assets. Upon the application of the decree-holder, the court may order the oral examination of the judgment-debtor regarding their property. The purpose of the examination is to obtain informa - tion concerning the nature, location and extent of the judgment-debtor’s assets for the purposes of execut - ing the money decree. This is the principal statutory mechanism for post-judgment asset disclosure under the CPC. In addition to these mechanisms, information regarding a party’s assets may be obtained through the ordinary processes of litigation, including discov - ery and production of documents where relevant to the issues in dispute, summons issued to public authori - ties for specific records, and court-directed disclosure where warranted by the circumstances of the case. Financial institutions and tax authorities are generally bound by statutory confidentiality obligations and will ordinarily disclose information only pursuant to a law - ful court order or where otherwise authorised by law.
2. Domestic Judgments 2.1 Types of Domestic Judgments
Pakistani courts issue several distinct types of judg - ments depending on the stage and nature of the dis - pute. These include the following: • ex parte or default judgments are passed under Order IX CPC where a defendant fails to appear or defend after being validly served;
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