1. RAHMAT HUSSAIN JAFFERI, J.--- The facts are that on 14-4-2003 the decree-holder filed execution application to execute the decree for Rs.11,49,33,502 with interest at Rs.14% per annum with quarterly rest from 15-3-1993 till realization of the amount. On 12-8-2003 the Court permitted the decree- holder to sale the properties of the J.Ds. In pursuance of the said order the decree-holder started the process of selling the properties through auction. On 26-5-2004, auction Report No.1 filed by the decree-holder was confirmed by which the bid offer of J.D. No.9(i) was accepted in respect of Plot No.C-44, Block No.9, measuring 600 sq. yds. situated in Gulshan-e-Iqbal, Karachi.
2. The decree-holder has submitted three auction reports, viz. auction report No.2 in respect of Haryana Asbestos Cement Industries Limited situated on Plot No.D-36 to 49 admeasuring 22,500 square meters, Sector-D situated at Hub Industrial Trading Estate, Lasbella Balochistan. The highest bidder Messrs National Transport Company gave the bid of Rs.30.1 million which was accepted by the decree-holder and the D.11: has sent the report for confirmation of sale.
3. In the second auction Report bearing No.3, House No.R-44 admeasuring 120 sq. yds. Block-18, Federal "B" Area Karachi was sold through auction. The highest bidder Shahid Hussain Malik gave the bid for an amount of Rs.11,80,000 that was accepted by the decree-holder. The decree-holder has sent this report for confirmation of sale.
4. The auction Report No.4, pertains to House No.R-1855, admeasuring 120 sq. yds. Block-14, Federal "B"
5. Area, Karachi. The decree-holder auctioned this property. The highest bidder was Shahid Hussain Malik and his bid was for Rs.20,30,000 and was accepted by the decree-holder. The same has been submitted to this Court for confirmation.
6. It is pertinent to point out that on 26-5-2004, the J.D.-5 Ahsanuddin was allowed to attend the office of decree-holder where the auction-purchaser and other interested parties were required to be called to offer bids in limited auction to be held in between the J.D.-5 and intended bidders who had participated in the earlier round. In pursuance of the said order the decree-holder convened a limited auction pertaining to auction, Reports Nos.2, 3-and 4 in which the J.D.-5 participated. The J.D.-5 did not deposit the earnest money or agreed to match the highest bid in respect of auction Report No.2 whereas he agreed with the amount of highest bids in respect of properties mentioned in auction Reports Nos.4 and 5. He submitted such written letter/offer dated 7-6-2004. However, he did not deposit the earnest money, therefore, the decree-holder gave a written notice to the J.D.-5 to deposit the pay order of Rs.5,00,000 as earnest money up to 8-6-2004. Thereafter, the J.D.-5 did not deposit the earnest money, therefore, the decree-holder has submitted auction reports for confirmation of sale. The decree-holder had sent above mentioned three reports, which were received by this Court on 9-8-2004.
7. On 17-8-2004 the J.D.-3 filed an application under section 151, C.P.C. being C.M.A. No.1735 of 2004 with a request that he was ready to accept the highest matching bid of Rs.11,80,000 in respect of House No.R-44/18 F.B., Area Karachi measuring 120 sq. yd. Karachi.
8. On 6-9-2004, auction-purchaser of auction Reports 3 and 4 moved an application (C.M.A. No.1850 of 2004) under Order XXI, rule 92 for accepting his offers and to confirm the sale in respect of two properties mentioned in auction Reports Nos.3 and 4.
9. On 21-10-2004 J.D.-5 filed application under section 151, C.P.C. being C.M.A. No.2177 of 2004 praying therein to allow him to deposit the pay order of Rs.5,00,000 each as earnest money being precondition to offer matching bid for three properties mentioned in auction Reports Nos.2 to 4.
10. I have heard the parties' Advocates on the above applications and the auction reports as they are interconnected.
11. From the facts of the case it is clear that the decree-holder conducted three auctions by following the required procedure. The decree-holder accepted the highest bids of highest bidder mentioned in the said reports. In pursuance of the order, dated 26-5-2004, the J.D.-5 was allowed to participate in limited auction in which the J.D.-5 participated but he did not give matching bid in respect of properties mentioned in auction Report No.2 nor he deposited any earnest money.
12. However, the J.D.-5 gave written consent/offer, dated 7-6-2004 by accepting the highest bids mentioned in auction Reports 3 and 4. The said statements are available in the record of the auction Reports 3 and 4. It appears that the earnest money in respect of these two properties were not paid by J.D.-5, therefore, on the same date written letters were given to the J.D.-5 who received the same on the same date as per endorsement of the J.D.-5 on the said letters. In these letters it was specifically directed that the J.D.-5 should deposit a pay order of Rs.5,00,000 as earnest money up to 8-6-2004. The said amount was not deposited by J.D.-5. However, he remained quiet for a long period of three months when on 21-10-2004 he filed application (C.M.A. No.2177 of 2004) under section 151, C.P.C. with a simple request that he may be allowed to deposit the earnest money without the request of allowing to deposit the amounts of a highest bidders of three auctions. The J.D.-3 also filed C.M.A. No.1735 of 2004 dated 17-8-2004 stating that he is ready to accept the matching highest bid. It appears that the J.D.-3 did not participate in the auction proceedings. There was no order passed by the Court for allowing J.D.-3 to participate in limited auction.
13. In view of above position, the J.D.3 and 5 have disentitled themselves for accepting their request.
14. Even otherwise under Order XXI, rule 89, C.P.C. they were required to file application to set aside the sale on deposit of required amount. The said application can be filed within a period of 30 days under Article 166 of Limitation Act but the said application has not been filed by J.D.-3 and J.D.-5 within the required period. Instead thereof, they invoked the inherent jurisdiction of this Court by filing application under section 151, C.P.C. The said provision will be applicable if there is no other provision available in the Civil Procedure Code to deal with the situation. In the present case the provision in the shape of Order XXI rule 89, C.P.C. was available to J.Ds.3 and 5 but they did not invoke the said provision, as such, the application under section 151, C.P.C. in the present circumstances of the case are not maintainable. As no application under Order XXI, rule 89 has been filed within 30 days, therefore, the request of the J.Ds.3 and 5 is time-barred hence the sale in respect of properties cannot be cancelled. Thus, C.M.A. No.2177 of 2004 and C.M.A. No.1735 of 2004 are not maintainable in the present form, as such, they are dismissed. Reliance is placed on Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan PLD 1987 SC 512 and Nenhelal and another v.
15. Umrao Singh AIR 1931 PC 33.
16. In view of above position C.M.A. No.1850 of 2004 and auction Reports Nos.2, 3 and 4 are accepted.
17. The bids of highest bidders in auction Reports Nos.2, 3 and 4 are accepted and sales are confirmed.
18. C.M.A. No.2703 of 2004 By consent the application is allowed.
19. C.M.A. No:1734 of 2004 Learned Advocate for the decree-holder does not want to press this application as he intends to file proceedings within the meaning of section 193, P.P.C.
20. In view of above position the application is dismissed as not pressed.