P L D 2025 Balochistan 127
Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ
AMINULLAH ---Petitioner
Versus
KHALIL UR REHMAN and another ---Respondents
Constitution Petition No. 1137 of 2022, decided on 18th December, 2024.
Civil Procedure Code (V of 1908) ---
----O. XXI, Rr. 66, 67, 68 & 72---Execution proceedings ---Public Auction--- Participation of
decree- holder without permission--- Effect ---Non -compliance with mandatory provision ---
Payment of decretal amount during pendency of execution--- Challenge to possession order --
-Held, that O. XXI, Rr. 66, 67 & 68, C.P.C., outlined a comprehensive mechanism, whereby
it was the duty of the Executing Court that after attaching the property, it had to direct the
revenue authorities to assess the market value before referring the case to the District
Revenue Officer for auction ---Court was also required to instruct the Revenue Officer to
include the reserved price in the auction proclamation, however, parties were not allowed
time to inspect the property; the valuation and reserve price were absent ---Proclamation must
include all material particulars to inform potential bidders about the nature and value of the
property---Non -compliance with O. XXI, Rr. 66, 67 & 68, C.P.C., vitiated the proceedings ---
If a decree- holder intends to participate in the auction, permission under R. 72 is mandatory,
and only then can he claim a set -off of the purchase money---Decree- holder did not obtain
such permission, rendering the auction proceedings violative of Rr. 66, 67, 68 & 72 of O.
XXI, C.P.C., which was an illegality apparent on the record, thus, the auction was declared illegal ---During litigation, the judgment -debtor produced documents proving full payment of
the decretal amount, thus, the revisional court rightly set aside the auction/transfer order ---
No infirmity or perversity was found in the revisional court's order, rendering it immune
from interference by the High Court ---Constitutional petition was dismissed, in
circumstances.
Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Bank Al -Habib
Limited through Branch Manager v. Messrs Rafi Cotton Industries (Pvt.) Ltd. through Chief
Executive and others 2023 CLD 154; Muhammad Zulfiqar and another v. Additional District Judge (West), Islamabad and others PLD 2016 Isl. 91; Trust Leaving v. Messrs Regent Dying 2005 CLC 1368; Brig. (Retd.) Mazhar -ul-Haq and another v. Messrs Muslim
Commercial Bank Limited, Islamabad and others PLD 1993 Lah. 706; Mohib Textile Mills Limited through Director/ Shareholder/Representative, Formr Management of the Company v. National Bank of Pakistan, Karachi and others 2005 SCMR 1237; Siddique Weellen Mills through all Partners and 5 others v. Allied Bank of Pakistan Limited through Manager and General -Attorney, Badami Bagh Branch, Lahore 2002 CLD 1299; Messrs Asif Brothers,
Jhang Saddar through Sole Proprietor and another v. Muslim Commercial Bank Limited through Manager and 3 others 2005 CLD 236; Muhammad Maherban v. Muhammad Siparas and others 2014 CLC 1329 and Muhammad Nazeer v. Waheed Anwar PLJ 2015 Lahore 938 ref.
Muhammad Ahmed Sheikh and 2 others v. J.S. Bank Limited through Branch
Manager 2012 CLC 498 rel.
Petitioner in person.
Mushtaq Ahmed Anjum and Muhammad Yousaf Kakar for Respondent No.1.
Arbab Nasruminallah, Additional Advocate General for Respondent No.2.
Date of hearing: 20th November, 2024.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---The petitioner has invoked the constitutional
jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of
Pakistan, 1973 ("the Constitution") with the following prayer:
2. On 13.06.2023, learned counsel for respondent No.1 filed C.M.A. No. 1056 of 2023
for the placement of leftover documents on record. The other side did not object, thus the
documents were placed on record.
3. On 11.06.2024, the petitioner also filed CMA No.1713/2024
for the placement of material documents, which were taken on record.
4. The petitioner inter alia contends that respondent No.1 was reluctant to pay the
decretal amount in terms of judgment and decree dated 24.07.2009, as such, the Executing
Court put the attached property on auction; the petitioner also participated in the auction
proceedings, and was declared highest bidder, consequently, the mutation of the attached
property was effected in his favor; the Executing Court directed respondent No.1 to handover the possession of the auctioned property, but he was reluctant to obey Court's orders,
however, the revisional Court without considering all these relevant facts, set aside the order
passed by the Executing Court,
which is legally not correct; that the Executing Court had adopted the alternate mode for
the realization of the decretal amount, but the revisional Court did not dilate upon this legal
aspect, thus, the findings rendered in the impugned order are not sustainable and liable to be set aside.
5. Conversely, learned counsel for respondent No.1/judgment debtor controverted the
contentions of the petitioner and contended that the petitioner at the time of auction and transferring of the property on his name concealed the facts and did not place the judgment and decree of this Court passed in R.F.A. No. 122 of 2009, whereby operation of judgment and decree dated 24 -07- 2009 was suspended; respondent No.1/judgment debtor with the
permission of the court paid the complete decretal amount in installmen t, and only for
Rs.250,000/ - the property worth of million had been mutated in the name of the petitioner in
the illegal auction proceedings, and the revisional Court while passing the impugned order had considered all the factual and legal aspects, thus, the revisional order is legally correct; that the impugned order dated 25.06.2022 passed by the revisional Court is based on proper appreciation of material available on record, as such, immune from any interference. In support of his contentions, learned counsel for respondent No.1 placed reliance on the cases "Muhammad Attique v. Jami Limited and others" PLD 2010 SC 993, "Bank Al -Habib
Limited through Branch Manager v. Messrs Rafi Cotton Industries (Pvt.) Ltd. through Chief Executive and others" 2023 CLD 154 (Lahore), "Muhammad Zulfiqar and another v. Additional District Judge (West), Islamabad and others" PLD 2016 Islamabad 91, "Trust Leaving v. Messrs Regent Dying" 2005 CLC 1368 (Lahore), "Brig. (Retd.) Mazhar -ul-Haq
and another v. Messrs Muslim Commercial Bank Limited, Islamabad and others" PLD 1993
Lahore 706, "Mohib Textile Mills Limited through Director/Shareholder/Representative, Formr Management of the Company v. National Bank of Pakistan, Karachi and others"
2005 SCMR 1237, "Siddique Weellen Mills through all Partners
and 5 others v. Allied Bank of Pakistan Limited through Manager and General -Attorney,
Badami Bagh Branch, Lahore" 2002 CLD 1299 (Lahore), "Messrs Asif Brothers, Jhang
Saddar through Sole Proprietor and another v. Muslim Commercial Bank Limited through Manager and 3 others" 2005 CLD 236 (Lahore), "Muhammad Maherban v. Muhammad Siparas and others" 2014 CLC 1329 (Lahore), "Muhammad Nazeer v. Waheed Anwar" and PLJ 2015 938 (Lahore).
6. Perusal of record reveals that the petitioner filed Civil Suit No. 123 of 2007 for
recovery of money against respondent No.1 and another. After a full -fledged trial, the trial
Court decreed the suit vide judgment and decree dated 27.07.2009 in the following
manner:
"The suit has come for disposal before this Court and the same is decreed in favor of the plaintiff, but there is no any evidence that defendant No.2 stood surety for payment, thus, it is ordered that plaintiff to be paid Rs. 2, 500, 000/ - with no order as
to cost".
7. Respondent No.1 assailed the said judgment and decree in R.F.A. No.122 of 2009
before this Court. Initially, during the pendency of said appeal, the petitioner/decree holder
filed an Execution Application No.29 of 2009. The respondent/judgment debtor contested the execution application and also filed an application for payment of the decretal amount in installments. Out of a decretal amount, respondent No.1 paid Rs.1,962,000/ - in installments,
but remained absent on successive dates of hearing, as such, the Executing Court attached the property of respondent No.1 and thereafter, put the same on auction. In this regard, the District Officer (Rev) Additional Commissioner, Quetta made a publication in the daily "Baakhabar" dated 08.10.2010 and fixed the auction date on 17.06.2010, 12:00 noon at his office. The petitioner/decree holder including two people participated in the auction proceedings and the petitioner/decree holder quoted the highest rates i.e. Rs.40 per sq.ft, total amounting to Rs.320,000/ - and the petitioner/decree holder was declared the highest bidder.
In pursuance of the auction proceedings, the property in lieu of Rs.320,000/ - was transferred
in the name of the petitioner/decree -holder, and for the remaining amount i.e. 218,000/ -, the
execution application was kept in dormant vide order dated 30th June 2010. For convenience, the order is reproduced as under:
8. Pursuant to a perpetual warrant, respondent No.1 was arrested and was sent to civil
imprisonment. In this context, respondent No.1 filed C.M.A. No.2255 of 2010 in R.F.A.
No.122 of 2009 before this Court, which was allowed, and respondent No.1 was released
subject to furnishing surety vide order dated 13.10.2010. Thereafter, R.F.A. No.122 of 2009 was dismissed vide judgment dated 25.06.2015.
9. Further, the record depicts that the petitioner/decree holder filed 2nd Execution
Application No.35 of 2017 with the stance that he had received Rs.325,000/ - in lieu of the
auction of property and requested for recovery of remaining decretal amount i.e. Rs.2,175,000/ - although 1st execution application was kept in dormant. As per record,
respondent No.1 did not deposit the last installment i.e. Rs.10,000/ - in lieu of the decretal
amount, therefore, the executing Court directed the revenue staff to handover the possession of auctioned property to the petitioner/decree -holder and submit a comprehensive report vide
order dated 31- 03-2022.
10. On 14- 04-2022, respondent No.1 was not in attendance
and also did not deposit the remaining installment of Rs.10,000/ -, as such, the executing
Court issued a non- bailable warrant of respondent No. 1.
11. Respondent No. 1, feeling disgruntled, assailed both the orders in Civil Revision
Petition No.07 of 2022 before learned Additional District Judge -III, Quetta, which was
allowed vide order dated 25- 06-2022. The operative part is reproduced as under:
"The upshot of the above discussion is that, the main point
is resolved in favour of the petitioners, therefore, the
instant revision petition is allowed and the auction order/ transfer order of property in the
first execution application of the 29/2009 are set aside and the trial Court is directed to execute the decree to the extent of remaining amount i.e. Rs. 325,000/ - (Rupees
Three Lacs and Twenty -Five Thousand only) and
issue a letter for restoration of property in favor of judgment -debtor."
12. The pivotal question before this Court is about the legality
of public auction proceedings. In this context Order XLI, Rules 66, 67, and 68, C.P.C.
demonstrate a comprehensive mechanism. It was the duty of the Executing Court that after
attachment of property, the Court had to direct the revenue authorities for the assessment of the market value of the attached property before sending the case to the District Revenue Officer for auction proceedings, therafter, the Executing Court also directed the concerned Revenue Officer to mention the reserved price in the proclamation by public auction. A
perusal of publication dated 08- 06-2010 appeared in the newspaper Daily "Baakhabar"
reflects that the parties were not given time to visit the attached auction property; the value
of property and reserved price were missing, however, the proclamation of public auction of property should include everything considered as material to enable the purchaser/ participants to know the nature and value of the property. The non- compliance with the
provisions of Rules 66,
67, and 68 of the Order XXI, C.P.C. vitiates the public auction proceedings.
13. In addition to this, if a decree -holder intends to participate in the public auction
proceedings, then under Order XXI, Rule 72, C.P.C., it is obligatory for the decree -holder to
seek permission from the Court to participate in the auction proceedings and is entitled to set off the purchase money. In the present case, the petitioner/ decree- holder did not seek
permission from the Executing Court to participate in the auction proceedings in terms of Order XXI, Rule 72, C.P.C. In view of the aforementioned factors, it is concluded that the auction proceedings were carried out in violation of Order XXI Rules 66, 67, 68 and 72, C.P.C., which is illegality and irregularity apparent on the surface of the record, therefore, the auction proceedings are declared as illegal. Reliance in this regard is placed in the case of Muhammad Ahmed Sheikh and 2 others v. J.S. Bank Limited through Branch Manager (2012 CLC 498), the operative part is reproduced as under:
"12. The perusal of Order XXI, rule 72, C.P.C. shows that decree -holder will not be
permitted to participate in auction proceedings, meaning thereby the law only binds the decree- holder for obtaining permission and it is silent for the permission of
judgment -debtor, this clear distinction in law is intentional. The judgment -debtor if
will purchase the property, he will offer maximum price as the maximum price will be in his benefit for discharging the liability under the decree, whereas the decree -holder
may try to purchase land on lesser price, that is the reason the legislator has taken care of slightest possibility of unfairness which may cause loss to the judgment -
debtor, hence the logical conclusion under the provision of Order XXI, Rule 72, C.P.C. is, if the decree- holder intends to participate in auction he is bound to obtain
permission of court and any sale in favour of decree -holder without court permission
will be voidable if not void in the absence of judgment -debtor's consent.
-----, The facts of the case in hand require the following questions to be addressed by this Court:
(1) Whether the court can take cognizance for acceptance of offer of decree- holder after
the postponement of auction in the absence ofpermission in terms of Order XXI, rule 72, C.P.C.?
(2) Whether once auction proceedings postponed, the court is bound to resettle the terms of sale?
(3) Whether once the Banking Court adopts procedure of C.P.C., the Court can travel beyond the provisions of C.P. C. ? "
14. Moreover, during the arguments, learned counsel for respondent No.1/judgment -
debtor filed C.M.A. No.9219 of 2024 along with the appended documents to show the complete payment of the decretal amount. The details of the deposited amount are as under:
S.No. Date of Order Sheet Decreetal Amount
1 12.12.2018 Rs.600,000/ -
2 31.12.2018 Rs.300,000/ -
3 09.02.2019 Rs.20,000/ -
4 08.04.2019 Rs.75,000/ -
5 21.05.2020 Rs.25,000/ -
6 15.07.2019 Rs.50,000/ -
7 10.08.2019 Rs.30,000/ -
8 04.10.2019 Rs.50,000/ -
9 07.10.2019 Rs.50,000/ -
10 05.11.2019 Rs.30,000/ -
11 19.11.2019 Rs.30,000/ -
12 29.11.2019 Rs.30,000/ -
13 07.03.2020 Rs.45,000/ -
14 21.08.2020 Rs. 150,000/ -
15 28.09.2020 Rs.25,000/ -
16 04.11.2020 Rs.25,000/ -
17 31.05.2021 Rs.25,000/ -
18 12.06.2021 Rs.115,000/ -
19 26.06.2021 Rs. 100,000/ -
20 28.08.2021 Rs.50,000/ -
21 06.10.2021 Rs. 100,000/ -
22 22.11.2021 Rs.50,000/ -
23 12.02.2022 Rs. 100,000/ -
24 17.03.2022 Rs. 10,000/ -
25 29.07.2022 Rs.325,000/ -
Total: Rs.24,10,000/
15. As a sequel to the above discussion, it is concluded that the Revisional Court has
already set aside the auction order/ transfer order of the property carried out in the first
execution application No.29/2009.
16. No infirmity or perversity has been found in the impugned order, as such, the same is
immune from interference by this Court.
For the above reasons, Constitutional Petition No.1137 of 2022, being bereft of
merits, is dismissed. There is no order as to cost.
SA/38/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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