DANISH ELAHI vs MARIAM KAMRAN Ss — 2022 PLD 362 KARACHI-HIGH-COURT-SINDH

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DANISH ELAHI VS MARIAM KAMRAN Ss.140, 141 & 145---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief act (I of 1877) Ss.12, 42, 54---Suit for specific performance of agreement, declaration, injunction, recovery of money and damages---Interim injunction, refusal of---Surety's rights---Implied promise to indemnify---Pre-conditions---Principle of beneficium ordinis seu excussionis---Scope---Plaintiffs under a family agreement, voluntarily paid liabilities of deceased predecessor-in-interest of defendants towards Bank and different individuals---Plaintiffs claimed that after paying the debts, they stood in place of creditors and entitled to same rights including any pledge/lien or other security over any property which financial institutions/creditors held before receiving their payments---Validity---Cycle of settlement of deceased debtor's obligations by surety was blessed with statutory sanctions under Ss. 140, 141 & 145 of Contract act, 1872, only on happenings of either (a) guaranteed debt had become due, or (b) principal debtor had defaulted in performing a guaranteed duty---It was only upon happening of any of the two pre-requisites that S.140 of Contract act, 1872, could permit surety to make payment or perform all that he was liable for---Upon such payment/performance, surety was "invested with" all rights which creditor had against principal debtor---Principle of beneficium ordinis seu excussionis which meant that benefit was to protect the surety by compelling creditor to first proceed against principal debtor---Such legal principle ensured that creditor must first of all should obtain all that's possible from debtor's estate before proceeding against surety---acts of plaintiffs aimed to throttle livelihood of defendants who were legal heirs of deceased debtor---High Court declined to put legal heirs of deceased debtor to caprice of plaintiffs, which could be an act of offensive to dignity of human---Family agreement was to upkeep family's honour which was a sophisticated form of honor killing, tossing the widow (alongside her children) to the dust of injustice---Plaintiff failed to make out a prima facie case, neither balance of convenience was in their favour, nor they would suffer any irreparable losses as their claim was only for money---application was dismissed, in circumstances.

DANISH ELAHI vs MARIAM KAMRAN Ss — 2022 PLD 362 KARACHI-HIGH-COURT-SINDH

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