2023 Y L R 2683
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
Sheikh AMEEN -UR-RASHEED ---Petitioner
Versus
Shaikh MAMON UR RASHEED and 4 others ---Respondent
C. P. No. 1984 of 2022, decided on 11th April, 2023.
Civil Procedure Code (V of 1908) ---
----O. XXI. Rr. 54(2), 66, 85, 86 & 92---Suit for declaration and possession through partition
decree---Execution petition ---Auction proceedings ---Sale by public auction--- Procedure,
non- observance of ---Plaintiffs and the defendant (possessor) were declared co -sharer/co -
owners of the ancestral property (suit -house) by the Trail Court; and the defendant(judgment -
debtor/ possessor) was directed to either buy the shares of plaintiffs or let them sell the house ---Executing Court, however, auctioned suit -house t o the highest bidder whereas the
judgment -debtor/ possessor had showed his willingness to purchase suit -house by way of
filing objections ---Executing Court over -ruled said objections, against which order the
judgment -debtor/possessor filed revision but the order was maintained---Contention of the
petitioner (judgment -debtor/possessor) was that auction proceedings were carried out against
the provisions of law, inter alia, without giving notice and hearing him (and even other co-sharers/decree- holders), the suit -property had been auctioned---Validity ---It was the mandate
of R. 66(2) of Order XXI of the Civil Procedure Code, ('C.P.C., 1908') that a proclamation of sale was to be drawn up by the Executing Court itself after prior notice to the decree -holder
and the judgment -debtor ---Sale by public auction without issuing notice to decree -holder and
judgment -debtor would vitiate the proceedings ---Said Rule also mandated that where
situation to sell the property through auction had arisen, the Court as a rule must ask the
parties to state the estimated price of the property, which in their opinion was likely to be fetched ---Fixing reserve price in the proclamation was also mandatory, in absence whereof
auction was illegal ---In the present case, the proclamation was also not affixed on the Court
Notice Board, which adversely affected the transparency of the auction proceedings ---
Impugned order passed by the executing Court was silent with regard to deposit of the balance amount of 75% by the auction purchaser within 15 days of the auction as mandated under R. 85 of O. XXI of the C.P.C, 1908--- Rejoinder to objection filed by the respondent
(auction -purchaser) and an application for depositing of the balance amount revealed that he
had not deposited the balance within 15 days, while auction had taken place almost a month ago---Payment of the balance amount within 15 days of sale, was mandatory and upon non-
compliance with said provisions there was no sale at all ---Executing Court neither accepted
the bid of the responden t (auction- purchaser) nor confirmed the sale as provided under R. 92
of O. XXI of C.P.C, 1908, thus it could not be said a vested right occurred in favour of the
auction purchaser ---In light of said illegalities coupled with non- deposit of balance sale
amount of 75% by the respondent (auction purchaser) within stipulated time of the
sale/auction, absence of confirmation of the sale in the impugned orders had rendered the auction proceedings in deviation of the mandatory provision of O. XXI, Rr. 54(2), 66, 85, 86 & 92, C.P.C.---High Court set -aside the impugned judgments and orders passed by both the
Courts below and allowed the objection filed by the petitioner (judgment -debtor/ possessor),
subject to full deposit auction/ sale money and deposit of sum equal to 5% of the purchase
money ---High Court directed that offer observing all other formalities the house -in-question
shall be transferred in favour of the petitioner ---Constitutional petition was allowed, in
circumstances.
Shahid Ali v. Mrs. Aziz Fatima and others PLD 2010 SC 38; Mst. Nadia Malik v.
Messers Makki Chemical Industries Pvt. Ltd. through Chief Executive and others 2011 SCMR 1675; Afzal Maqsood Butt v. Banking Court No.2, Lahore and 8 others PLD 2005 SC 470 and Muhammad Jawed v. First Women Bank Ltd and others 2020 SCMR 2134 ref.
Muhammad Ewaz Zehri for Petitioner.
Ms. Humera Munir for Respondents Nos. 2 to 7E.
Mehwand Khan for Respondent No.9.
Malik Munir Ahmed Sikandar, A.A.G. for Official Respondents.
Date of hearing: 4th April, 2023.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Petitioner (Sheikh Ameen ur Rasheed
(defendant) and respondents Nos. 1 to 7 (plaintiffs/decree holder) are brothers and sisters. Plaintiff filed a suit for declaration, partition through possession against the defendant that they are lawful owner / co -sharer of house bearing No.8- 21/36 situated at Macanghi Road
near Hazara Imam Bargah, Quetta bearing Khasera No.208, Ward No.48, Tappa Urban No.6, Tehsil City District Quetta (house in question). The suit after contest was decreed vide judgment/ decree dated 20 - 03-2021 passed by the learned Senior Civil Judge -IV, Quetta as
under,
"Plaintiff" suit stands decreed and it is declared that plaintiff and defendants and defendant No.1 are the legal and lawful owners of the house bearing No.8- 21/36
situated at Mechonghi Road near Hazara Iman Bargah Quetta, being their ancestral property and defendant No.1 is directed to either buy the shares of plaintiffs or to let them sell the house and thereafter to distribute the proceeds amongst them as per their Sharai shares. Defendant No.1 is further directed to hand over the possession of the house to plaintiffs after selling the same and to receive his share from the proceeds of the property as per his Sharai share. He is further directed to not to transfer, alienate, sell, rent or lease the house to any other person. Further, defendant No.2 is directed to partition the house as per Sharai shares of the parties or in case of its non -partition the
amount received after selling of the house be distributed amongst the plaintiffs and
defendant No.1. Parties are left to bear their respective costs."
2. The decree holder filed an execution application on 11- 08-2021, the executing court
on 31- 11-2021 passed following order,
"Called. Counsels are not present today. Execution application fixed today order. Order announced in open Court. And both parties i.e. decree holder and Judgment debtor are allowed to buy property or receive their share through auction amount and further the Civil Nazir is directed to dispose of the property through auction accordingly"
3. After the above order notice for auction of the suit property was published in daily
newspaper Jang, Quetta on 10- 03-2022 and on 15- 03-2022 at 11:00 Am, auction proceedings
were carried out by Civil Nazir District Court Quetta wherein respondent No.9 (Muhammad Ali) had given highest bid of Rs.10200/ - per square feet and in this respect Civil Nazir
prepared report dated 15- 03-2022 whereby respondent had given a cheque of Rs.4513500
(forty five lac thirteen thousands an five hundred) 25% of the total sale consideration, the report further reveals that petitioner was also willing to purchase the house in question, but at that time he had no money. On 16- 03- 2022 the Civil Nazir submitted his report, but the
executing court has not given any notice either to the petitioner or decree holder. The petitioner being a co- owner filed objection on the report of the Civil Nazir and offered 25%
of the total consideration by accompany cheque dated 15- 03-2022 of Rs.4522000/ -. The
willingness of the one of the co- owner to purchase suit property also reflects from order
sheet of the executing court dated 15- 03- 2022 at 2:45 Pm as under:
On 16- 03-2022 the executing court received the report of Civil Nazir regarding
auction proceedings and no order was passed with regard to the offer of the petitioner.
4. The petitioner and the decree holder Nos. 2, 4 to 7 also filed objections that without
notice and hearing them suit property has been auction and the petitioner has shown his willingness to purchase the house in question. The auction purchaser contested the objection by way of filing rejoinder dated 02- 04-2022. The executing court vide impugned order dated
13-06-2022 over ruled the objections. On civil revision petition filed by the petitioner the
learned Incharge Additional District Judge -IV Model Civil Appellate Court Quetta vide
impugned order dated 30- 11-2022 dismissed the same.
5. The learned counsel for the petitioner contended that order dated 31- 11- 2021 passed
by the executing court lack issuance of mandatory notice to the decree holder and judgment
debtor. That petitioner also offered bid by accompany checque of Rs.4522000/ - and his bid
to have preference as compare to auction purchaser. That auction purchase has neither filed
an application nor paid the full amount of the principle money i.e. remaining 75% in court within 15 days from the sale of the property in term of Rule 85 of Order 21 Civil Procedure Code (C.P.C.). That the sale was also not confirmed by the executing court in term of Rule
92 of Order 21 nor certificate in view of Rule 94 was issued, therefore, the sale through
auction suffers from above illegalities and thus vitiate the sale.
6. The learned counsel for the respondent No.9 auction purchaser contended that
petitioner has failed to purchase the suit property despite passing of decree. That auction
purchaser had paid 25% of total sale consideration in view of Rule 84 of Order 21 and thereafter on filing objection by the petitioner in rejoinder to the objection it was specifically preferred that auction purchaser be allowed to make payment of total amount i.e. 75% remaining amount. That there are concurrent findings of the executing court and revisional
court, which in absence of any material illegalities and jurisdictional defect cannot be
maintained in constitutional jurisdiction of this Court.
7. We have heard the learned counsel for the parties and perused the record. It is the
mandate of Rule 66 (2) of Order XXI, C.P.C. that a proclamation of sale is to be drawn up by
the executing court itself after prior notice to the decree holder and the judgment debtor. Sale
by public auction without issuing notice to decree holder and judgment debtor vitiate the proceedings. The rule ibid also mandated that where situation to sell the property through auction arises the court as a rule must asked the parties concern to state about estimated price of the property, which in their opinion is likely to be fetched fixing of reserve price in the proclamation is also mandatory, in absence thereof auction is illegal. Reliance in this respect
is to be placed on case title Shahid Ali v. Mrs. Aziz Fatima and others (PLD 2010 SC 38),
wherein the Honorable Supreme Court of Pakistan observed as under:
"A review of the authorities, cited at the Bar by the learned counsel for the parties as well as study of the relevant provisions including rule 66 of Order XXI C.P.C, makes it amply clear that in a partition suit when the situation to sell the property arises the Court, as a rule, must ask the parties concerned to state before it estimated price of the property which in their opinion is likely to be fetched and although it is not essential for a Court to give its own estimate in the order but in drawing publication, having
regard to the express provision of Rule 66 of Order XXI, C.P.C. the Court while
passing an order must take into consideration all the material facts, which are necessary for a purchaser to know in forming an opinion regarding valuation of the property. In 'the instant case order dated 6- 12-1995, whereby Ch. Abdul Majeed was
appointed as auctioneer, as well as the auction notices do not indicate as to whether reserve price of the property was ascertained or parties were asked to furnish th eir
estimates, nor it finds place in the publication nor relevant details qua title of the property, nature of constructions e.g. number of rooms, etc. has been provided therein enabling the buyer to ascertain actual value of the property in question. Further, although in his report dated 11- 12-1996, it has been mentioned by the auctioneer that
the notices were also issued to the parties, as well as the decree holders and one Mst. Tajalla Mughal appeared before him for herself as well as on behalf of Mst. Y asmin
Masood and gave in writing that they were not interested in the auction, yet record does not reflect as to whether other shareholders of the property were ever given option to purchase the property. Record reveals that an application under section 47, C.P.C. was also submitted before the Court of first instance by one of the shareholders, namely, Humayun Akhtar and it was clearly mentioned therein that value of the property was approximately more than 80 lacs per kanal at the relevant
time, yet due consideration was not given thereto.
9. It may be noted here that a decree for sale of the property in a suit for partition
cannot be equated with other money decrees such as auction of the property mortgaged in a suit for recovery of loan etc. because in a partition suit, the parties both, decree -holders as well as judgment debtors, being owners have interested in the
.property and therefore may move for setting aside the sale, in case the price fetched
in their estimation is inadequate."
Besides, above the proclamation was also not affixed on the court notice board, which
adversely affects the transparency of the auction proceedings. Reliance in this respect is
place on case title Mst. Nadia Malik v. Messers Makki Chemical Industries Pvt. Ltd. through
Chief Executive and others (2011 SCMR 1675), wherein the Honorable Supreme Court of
Pakistan observed as under:
"Moreover in the absence of fixation of proclamation on the court notice board, auction proceedings could not be held to be transparent. No venue of auction has been
mentioned in the proclamations, which is violative of the provisions of Order XXI, Rules 54(2) and 69, C.P. C. "
8. The provision of Rules 84, 85 and 86 of Order XXI, C.P.C. requiring hat successful
auction purchaser shall deposit 25% of the auction amount on fall of hammer and the balance shall be deposited within 15 days of auction. The full amount of the purchaser money i.e. the remaining 75% is to be paid into court and payment shall reach the court within the prescribed time. The default in deposit of balance amount within prescribed time is violative of the mandatory condition provided under the law.
9. In the instant case the impugned order passed by the executing court is silent with
regard to deposit of the balance amount 75% by the auction purchaser within 15 days of the auction as mandated under Rule 85 of Order XXI, C.P.C.. The rejoinder to objection filed by the auction purchaser dated 02- 04-2022 and an application dated 13 -06-2022 for depositing of
the balance amount reveals that he had not deposited the balance amount of 75% till 13- 06-
2022, while auction had taken place on 15- 03-2022. The payment of the balance amount
within 15 days of the sale, are mandatory and upon nor compliance with these provisions there is no sale at all. Reliance in this respect is made to case title Mst. Nadia Malik v. Messers Makki Chemical Industries Pvt. Ltd. through Chief Executive and others (2011 SCMR 1675), wherein the Honorable Supreme Court of Pakistan observed as under,
"The language of Order XXI, Rules 84 and 85, C.P.C. are mandatory in nature. If the balance amount of auction price is not paid within the stipulated period of 15 days, the court has the discretion to forfeit the deposit and order re -sale of the property. In
addition to forfeiture, the defaulted purchaser forfeits all claims to the property. The conditions contained in the proclamation provide all such details. It has provided that a party who is declared as highest bidder, shall immediately deposit 25% of the sale price and remaining 75% of the sale price would be deposited within 15 days. Violation of these conditions would not empower the executing court to extend time for deposit of balance amount unilaterally."
In case title Afzal Maqsood Butt v. Banking Court No.2, Lahore and 8 others (PLD
2005 SC 470), wherein the Honorable Supreme Court of Pakistan observed as under,
"The purchaser is bound to deposit twenty five percent of sale price immediately on
acceptance of offer of sale under Rule 84 and the remaining amount within fifteen days as provided under Rule 85 of Order XXI, C.P.C. In case of failure oil purchases to deposit of the sale price in full in terms of the above rules, the sale becomes invalid and the Court is under obligation to re -sell the property forthwith, In the present case,
the sale was not approved ins favour of successful bidder, therefore, no deposit was
made in terms of rule 84 ibid and subsequently the appellant was directed to deposit
the entire amount by a specified date but he instead of cash deposit issued cheque which was also dishonoured and failed to deposit the sale price, as a result of which he lost the right of purchase. The Court in such circumstances, could not justifiably in exercise of its discretion, condone the default and permit the appellant to deposit the sale price. The provision of Order XXI, rule 85, C.P. C relating to the payment of sale
price is mandatory and the Court in the normal circumstances, is not supposed to
extend the time for deposit of the sale price beyond the time provided under the law and on the failure of auction purchaser to deposit the entire sale price within the prescribed time or within the time allowed by the Court, would render the sale invalid and Court has no option except to re -sell the property as in consequence to the non -
deposit of sale price by the auction purchaser within the time given to him the sale
would become invalid. There can be no departure to the legal position that in the
normal circumstances, after the confirmation of sale, it is nor set aside but if the sale itself has become invalid, its confirmation would also be invalid."
10. In the instant case the executing court neither accepted the respondent No.9 bid nor
confirmed the sale as provided under Rule 92 of the Order XXI, C.P.C., it cannot be said a
vested right occurred in favour of the auction purchaser. Reliance is also placed in case title Muhammad Jawed v. First Women Bank Ltd and others (2020 SCMR 2134), wherein the
Honorable Supreme Court of Pakistan observed as under:
"The issue as to when vested rights are created in favour of a bidder in such
proceedings has been previously addressed in three pronounce -ments of this Court. In
Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan
Ltd. (PLD 1987 SC 512), this Court held that "once a sale has been effected, a third party
interest intervenes which cannot be disregarded." The question as to when sale is effected in execution proceed -ings involving auction of immovable property was
considered in the Muhammad Attique case, wherein this Court held that in cases involving court auctions of immovable properties "the contract/sale comes into being when the bid is accepted by" the Court. This position was reiterated in Muhammad
Khalil v. Messrs Faisal M. B. Corporation (2019 SCMR 321) - albeit in slightly
different terms,
wherein this Court held that "it needs no reiteration that an auction is always subject to
confirmation by the Court." This Court then held that since "the executing court never confirmed the auction. Therefore, no vested right had accrued in favour of the auction
purchaser."
11. In the face of the aforesaid illegalities coupled with non -deposit of the balance sale
amount of 75% by the respondent No.9 (Auction purchaser) within 15 days of the
sale/auction, absence of confirmation of the sale in the impugned orders renders the auction
proceedings in deviation of the mandatory provision of Order XXI, Rules 54 (2), 66, 85, 86
and 92 of the C.P.C., thus, the impugned orders cannot be sustained.
In view of above, Consti -tutional Petition No.1984 of 2022 is allowed. The Impugned
orders dated 13- 06-2022 and 30- 11-2022, passed by learned Senior Civil Judge -IV, Quetta
and learned Incharge Additional District Judge -IV/ Model
Civil Appellate Court Quetta respectively are set aside. The objection filed by the
petitioner is allowed, subject to full deposit auction/sale price and deposit of sum equal to
5% of the purchase money. The respondent No.09 (Auction purchaser) is permitted to
withdraw the bid price together with 5% of the said amount by way of compensation. After
deposit of the sale amount by the petitioner the same is to be distributed between the plaintiff and petitioner accordingly to their
respective shares and the house in question is to be transferred in favour of the petitioner.
MQ/99/Bal. Petition allowed.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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