Munir A. Sheikh, J.--This appeal by leave of the Court is directed against order dated 13.7.1995 of the Lahore High Court whereby Respondents Nos, 1 & 2 have been ordered the payment of commission on the sale proceeds of the property in execution of the decree for recovery of money passed in favour of the appellant against Respondents Nos, 3 to 10.
2. Briefly stated the facts are that a decree for recovery of specific amount was passed in favour of appellant against Respondents Nos, 3 to 10 by Special Judge Banking. A petition for execution of the said decree was filed by the appellant in the said Court in which process of attachment of property of the judgment Debtors-Respondents Nos, 3 to 10 was issued. Respondents Nos, 1 & 2 were appointed Court Auctioneers to auction the attached property. Respondent No, 1, who is present in person says that the proceedings as prescribed under the law such as advertisement etc. were taken and thereafter auction was held but before its confirmation by the Executing Court, an objection petition was filed by the judgment debtors for dismissal of the execution petition as time- barred. The objection petition was accepted and execution application dismissed as barred by time, as a legal consequence of which attachment of the property of the judgement debtor and order for sale were automatically annulled. The question arose as to whether Court Auctioneers were entitled to receive commission or actual expenses. An application was made by the Court Auctioneers for payment of commission.
3. Rules 21 & 22, Chapter 12-L, Volume-1 of the Rules and Orders of the Lahore High Court govern the payment of commission or expenses to Court Auctioneers, which are reproduced below in extenso:--
21. "Government Commission.--(i) Commission at the following rates shall be deducted from the proceeds of sales under this Chapter:
(a) If the sale proceeds do not exceed rupees five thousand--at five per centum.
(b) If the sale-proceeds exceed rupees five thousand--at five per centum on rupees five thousand and two, and a half per centum on the remainder:-- **[Provided that the maximum amount of commission deductable according to the aforesaid rates shall not exceed rupees five thousand.] (ii)If the sale is conducted by the Court Auctioneer, 80 per cent of the Commission will be paid to him and 20 per cent will be paid into the Treasury to the credit of Government. All incidental expenditure shall be met by the Auctioneer.
(iii)If the sale is conducted by the Nazarat Staff, the whole of the commission shall be credited to Government and nothing shall be paid to the officer conducting the sale. In such cases, the expenses incurred in conducting the sale, including the cost of advertisement, must not exceed the amount of commission.
(iv) Expenses of custody, etc.--The expenses incurred in the care, custody and keep of attached property (as taxed by the Court) shall be a first charge on the sale-proceeds thereof, after the deduction of the commission mentioned above.
22. Charges of Court Auctioneers.--(i) No commission shall be paid on the proceeds of sales set aside for a material irregularity in publishing or conducting the sale. The commission on the proceeds of a sale set aside for any other cause shall be paid by the person at whose instance and for whose benefit the sale is set aside and the Court Auctioneer shall be entitled to his share of such commission.
(ii)If a sale is set aside the purchase money shall be refunded in full to the Auction Purchase unless it is set aside at his instance and for his benefit in which event the commission due under Paragraph 21 shall be deducted from the sum to be refunded.
(iii)Where a sale is set aside after the commission has been paid to the Court Auctioneer, the Court shall recover it from him and shall refund it to the Auction Purchaser if he is entitled to the refund of the whole of the purchase money. In such cases the Government share of the commission shall also be refunded.
(iv)In cases in which auction sales are ordered, but not completed or do not place, at all, the Court Auctioneer shall be paid only his actual expenses, provided that if there has been, in the opinion of the Court, clear negligence on the part of the auctioneer (e.g., failure to advertise, leading to absence of bidders) he will not be entitled to any compensation. The amount of actual expenses if held due under this rule will be determined by the Court and shall be paid by the decree-holder or the judgment-debtor as the Court may direct.".
4. It is clear from Rule 21 that the amount of commission is to be determined according to specific rates qua sale proceeds of the property of the judgment debtors and 80% was to be paid to the Court Auctioneers and 20% was to be deposited in the Government Treasury as Government commission. It was also provided that in case the auction is conducted by Nazir, no amount as commission was to be paid to the Nazir and whole of the amount of commission was to go to Government Treasury.
5. It has further been provided in Rule 22 Clause (i) to (iii) that the amount of commission shall be paid by the party for whose benefit the auction is set aside. If the auction was set aside on the ground that the Court Auctioneers had not conducted auction proceedings in accordance with law or had committed irregularity in ducting the same, no commission was to be paid to them.
6. High Court, notwithstanding, that execution petition was dismissed on the objection of the judgment debtors, has ordered the appellant-decree holder to pay the amount due to Court Auctioneers as commission by holding that there was some ambiguity to meet the situation for the auction proceedings were not set aside on account of irregularity committed by the Court Auctioneers as it was dismissed as barred by time. From the bare perusal of the relevant rules reproduced above, it is expressly clear that the situation, which is involved in this case, is fully met with by Rules 21 & 22 (ibid) according to which the commission would become due on the completion of the auction. The auction could of not be held to have been completed before it was approved or confirmed by the Court. This staged did not reach in this case for before the confirmation of the sale by the executing Court, execution petition was dismissed as barred by time therefore, commission had not become due as such it could not be recovered as sale proceeds were not paid to the decree holder.
7. Direction made by the High Court through the impugned order for payment of commission to the Court Auctioneers by the appellant is not sustainable. This appeal is accepted order dated 13.7.1995 is hereby set aside with no orders as to costs.