' RANA BHAGWANDAS, J.--- Petitioner is aggrieved by Lahore High Court judgment, dated 12-4-2004 dismissing his appeal against the order of Executing Court/Senior Civil Judge, Islamabad, dated 3- 6-2003 directing re-auction of the property in satisfaction of a money decree passed by him in Suit No,203 of 1984 filed by Maj. (Retd.) Anwar Shah against respondents, Masood Ahmad and his wife Mst. Sajida Bashir.
2. The suit was decreed in the sum of Rs,4,50,000 on 12-12-1984 by the consent of the parties.
Decree-holder filed Execution No,9 of 1985 for satisfaction of his decree in which Plot No,412, Sector 1-9, Islamabad was sold out in the Court auction for a sum of Rs,21,00,000. Auction proceedings were confirmed by Executing Court vide order dated 30-7-1987 in favor of the petitioner.
3. In terms of Order XXI, rule 84 of the Code of Civil procedure, 1908, he was required to deposit twenty-five per cent of the purchase money immediately on fall of hammer. In law, such amount is required to be paid to the officer of the Court or other person conducting the sale. However, in case of default of such deposit, the property shall forthwith be resold. Rule 85 of the Order (ibid) stipulates that full amount of purchase money payable shall be paid by the purchaser into Court before the Court closes on fifteenth day from the sale of the property, provided that purchaser shall have the advantage of any set off in calculating the amount so payable, to which he may be entitled under rule 72 of the A Order (ibid) in calculating the amount. Rule 86 being most pertinent and relevant may also be noted here which mandates that in default of payment within the period as mentioned above; the deposit may, if the Court thinks fit after defraying the expenses of the sale, be forfeited to the Government and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. Rule 87 provides that every resale of immovable property, in default of payment of the purchase money within the period allowed for such payments, shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.
4. It may be observed that in the present case, instead of depositing twenty-five per cent of the purchase money, the petitioner deposited a paltry sum of Rs,50,000 after three days on 21-5-1987 and a cheque issued by him for the balance amount of Rs,4,75,000 was bounced. Executing Court, however, instead of forfeiting the deposited amount and directing re-sale of the property after the issuance of requisite proclamation in terms of rule 85 adopted a novel procedure, which can only be deprecated in the face of express and specific provisions of law referred to hereinabove.
Surprisingly, Executing Court, called upon the petitioner as next higher bidder to match the bid amount and deposit the same vide order, dated 11-6-1987. He was directed to deposit the entire purchase money but he utterly failed to deposit the same as per terms of the order. However, he eventually deposited the same on 30-7-1987, on which date the auction proceedings were confirmed and certificate of sale was issued in his favor.
5. Respondent No,1 Mst. Sajida Bashir being aggrieved, filed an objection petition challenging the auction proceedings on the premise that indeed the auction was held regarding open plot only.
She claimed a sum of Rs,15,00,000 being value of the building and prayed to the Executing Court that possession of the property should not be given to the purchaser without payment of the said amount. Executing Court, however, vide order, dated 17-9-1987 rejected the objection petition, which was challenged in F.A.O. No,16 of 1988 before the Lahore High Court. F.A.O. Was allowed by the High Court vide judgment, dated 1-12-1993 whereby order of the Executing Court was set aside and the objection petition was remanded to it for decision afresh in accordance with law. Likewise, respondent No,4-Major (Retd.) Anwar Shah filed an objection petition under section 47 read with Order XXI, rule 58, C.P.C. For withdrawal of the warrant of possession in favor of the petitioner till the payment of the value of the building be paid to him. This application was also rejected by the Executing Court, which was challenged in F.A.O. No,21 of 1988. This appeal was allowed vide identical order, dated 1-12-1993 remanding the objection petition to the Executing Court for decision afresh in accordance with law.
6. In post-remand proceedings Executing Court, through an elaborate order, dated 3-6-2003 set aside entire auction proceedings and disposed of the objection petitions in terms that subsequent auction-purchaser shall be entitled to obtain possession of the plot along with building and that the possession of the property cannot be restored to the judgment-debtors. Property was ordered to be put to re-auction and substitution of the auction-purchaser was treated illegal entire proceedings being corum non judice. Director (Land), Capital Development Authority was directed to submit a report about the market price of the property.
7. Petitioner being beneficiary of the initial illegal and void order of the Executing Court feeling aggrieved assailed the order dated 3-6-2003 in F.A.O. No,98 of 2003, which has been dismissed vide judgment dated 12-4-2004, hence this petition.
8. We have heard Mr. Abdul Karim Khan Kundi learned Advocate Supreme Court for the petitioner at great length and Mr. Gul Zarin Kiani, learned Advocate Supreme Court who entered caveat on behalf of respondent No,1 and gone through the series of orders passed by Executing Court from time to time as well as the impugned judgment of the High Court.
9. Main emphasis of the learned counsel for the petitioner appears to be that after the confirmation of auction/sale proceedings in favor of the petitioner Executing Court was bereft of jurisdiction to undo the same as the order had attained finality.
10. We have carefully considered the submission of the learned counsel, which does not present any serious difficulty in resolving the controversy. Learned counsel, when called upon to justify the matching of the highest bid/purchase money by the auction-purchaser on the part of the petitioner being next highest bidder was totally silent and could not make any convincing reply to support the initial order of the Executing Court. By such order Executing Court had called upon the petitioner to match the purchase money and upon belated payment thereof proceeded to confirm the sale. We are firmly of the view that in view of the legal position fully governed by the provisions of Order XXI, rules 84, 85 and 86, Code of Civil Procedure sale of property on matching the purchase price in favor of the petitioner was void ab initio, corum non judice and completely without lawful authority. Such order, therefore,-cannot be sustained in law and to our mind Executing Court would be competent to rectify the wrong, moreso, when objection petitions, though in collectoral proceedings were remanded by the High Court for decision afresh. We feel that the Executing Court, which passed the subsequent order of sale of property in favor of the petitioner, was completely oblivious of the legal position and his order suffered from inherent legal infirmity, which cannot be validated by any canon of justice, equity or law. Although no authority is needed for the legal proposition and the view expressed by us, a reference may be had to A.R. Davar v.
Jhinda Ram AIR 1938 Lah. 198; Manilal Mohanlal v. Sayed Ahmed AIR 1954 SC 349; Nichhattar Singh v.
Babu Khan AIR 1972 Punjab and Haryana 204; K.L. Reddy v. S.B. Hussain AIR 1977 Andh. Pra. 78; Syed Brothers v. District Council Lyallpur PLD 1977 Lah. 542 and Bashir Ahmad v. Rashid Ehsan PLD 1979 Lah. 116 referred by learned counsel for respondent No, 1.
11. For the aforesaid facts, circumstances and reasons, there is hardly any merit in this petition, which is without any substance. It is accordingly dismissed with costs.