This petition has been filed for leave to appeal against the judgment dated 17th June, 2004 passed by the Lahore High Court, Lahore, relevant paras. therefrom are reproduced hereinbelow:-- "3. We have examined the available records. We find that earlier the matter was agitated by the appellant before this Court in Writ Petition No.1470 of 2000. With the agreement of the said judgment-debtor as well as the said decree-holder, the matter was disposed of on terms whereby Syed Zamurad Hussain Shah, Advocate, was appointed as Court Auctioneer and the schedule for the sale of mortgage properties was also provided. So far as the matter of reserved price is concerned, the same was dealt with and disposed of vide order dated 10-11-2003 in Writ Petition No.7899 of 2002 filed by the appellant. We may note here that the appellant had been repeatedly filing proceedings before the learned Executing Court as well as this Court each time saying that it is ready to pay the decretal amount and then failing to do , so. As per the auction report, the proceedings were conducted in presence of the participants and the appellant. Nothing, therefore, turns on the said contentions of the learned counsel for the appellant.
4. Now as noted by us above, the appellant had been time and again stating that he will pay the amount and then backing out. It is a matter of record that no amount was deposited at any time in terms of Rule 89 of Order XXI, C.P.C. So much so that when this F.A.O. was taken up on 13-4-2004, the learned counsel repeated that his client is ready to deposit the entire balance decretal amount and 5% of the sale consideration within seven days. A notice was issued and at the same time in view of the said undertaking, the execution proceedings were stayed. On 20-4-2004, C.M. No.512-C of 2004 was taken of in which prayer was made that time be extended. The relief was granted and time was extended up to one month provided the appellant deposited Rs.2,00,000 within two days. Still the needful was not done and only Rs.2,00,000 were deposited. On 20-5-2004 C.M. No.656-C of 2004 was presented and this time a final opportunity was sought stating that the amount shall be deposited within 15 days. The time was granted with the warning that the interim relief was to stand automatically recalled if the amount is not deposited. Again, the amount was not deposited and instead on 7-6-2004 C.M. No.733-C of 2004 was presented seeking further extension, which was refused."
The case was taken up for hearing on 27th July, 2004, which the following order was passed:-- "Learned counsel when called upon to explain that without complying with the provisions of Order XXI, Rule 89, C.P.C. how objection petition before the High Court and on the same analogy instant petition for leave to appeal before this Court is competent, he stated that to make instant petition competent, petitioner is ready to deposit Rs.3,20,600 along with 5% of the sale price which according to him comes to Rs.25.000 and Rs.37,000 which has been awarded to the Bank of Punjab as cost, during course of the day in any branch of the Bank of Punjab at Lahore.
2. We adjourn this case till tomorrow i.e. 28th July, 2004 with direction to petitioner to deposit above amount with Bank of Punjab, at Lahore without causing prejudice to the case of respondents or Auction-Purchaser because this order is being made just to make instant petition competent.
Notice be also issued to respondents for 28-7-2004.
In compliance of above order, the petitioner has deposited a sum of Rs.3,82,600 vide Receipt No.205481. The Auction-Purchaser appeared in person and stated that the sale has been confirmed and a certificate in this behalf has been issued in his favour by the Judge Banking Court-III, Multan. When we enquired about this fact from the learned counsel for petitioner as to why this fact was not brought in our notice on 27th July, 2004, he stated that this fact is mentioned in the memo. of petition.
3. With the assistance of the learned counsel, we have gone through the same but we have observed that no such fact find mention in the facts of petition. Be that as it may, a perusal of the order of the High Court, relevant paras. therefrom have been reproduced hereinabove, indicates that even the application which was submitted under Order XXI, Rule 89, C.P.C. was found not competent as the amount due against the petitioner was not deposited by him, therefore, we are of the opinion that the learned High Court has rightly dismissed the appeal filed by the petitioner. In addition to it as now the sale has been confirmed and this fact has been conceded by learned counsel for the petitioner in Court, therefore, petitioner is not entitled for any relief under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.
Thus for the foregoing reasons, we see no substance in this petition as such same is dismissed and leave declined.