' This is an application under section 151, read with Order XXI, rule 90, C. P. C. For setting aside the sale in favour of the purchaser. The facts leading to the filing of the above application are that the decree-holder bank obtained preliminary decree on 10-1-1974 on a mortgage suit. Since the judgment-debtor had not paid the decretal amount within 6 months or thereafter, the final decree was passed on 13-8-1974. Thereafter, the decree-holder filed the above execution application on 29-1-1975, whereby, they sought the sale of the mortgaged property, namely, plot of land bearing No, D-130, measuring 531 sq. Yards, situated in K. D. A. Scheme No, 1, Drigh Road, 1 Karachi with the bungalow thereon (hereinafter referred to as the property). The above application was placed on 3-11-1975 in Court for order. Thereupon, the Court ordered the issuing of notice for 17-11-1975. On the latter date the judgment-debtor applied to the Court for adjournment on the ground that she wanted to engage an advocate, the case was accordingly adjourned to 24-11-1975. On the latter date, Mr. A. M. Naqvi, Advocate filed his power vakalatnama on behalf of the judgment-debtor. The case was adjourned to 1-12-1975 as the learned counsel for the judgment-debtor was busy before another Bench. On 1-12-1975 with the consent for the learned counsel for the judgment-debtor the application of the decree-holder under section 63, C. P. C. Was granted and execution proceeding No, 156/70 in Suit No, 247/57 then pending in the Court of District Judge, Karachi were called and placed for the disposal in the High Court. After that on 9-2-1976 by the consent of the Advocates for the parties the case was adjourned to 12-.3-1976 in order to enable the parties to arrive at an amicable settlement. However, on the next date of hearing, namely, on 12-3-1976, neither the judgment-debtor nor her counsel was present nor any objections to the execution application were filed, and, therefore, the execution of the decree was ordered by the sale of the property at was also ordered that after the sale of the property, the sale proceeds would be distributed rate ably, in terms of sec' ion 63 of the C. P. C. Between the present decree-holder and the decree- holder in the aforesaid execution application No, 156/70 in respect of Suit No, 247/57, which was transferred to this Court as mentioned earlier. After that the Additional Registrar settled the terms of proclamation on 4-6-1976 after due notice to the parties. The Additional Registrar's order dated 4-6-1976 contained the following remark.
"J. D. Called absent".
' The learned counsel for the decree-holder signed the above proclamation in token of the acceptance of the same.
2. After that auction was fixed for 18-12-1976 at 3-30 p. m. At the site. The copy of the above proclamation was served on the Nazir on 4-11-1976. The copies of the above proclamation were affixed on 11-11-1976 at the property, at the police station and on the High Court's Notice Board. The copies of the proclamation were also forwarded by the Superintendent, Execution Branch of this Court through his letter dated 2-11-1976 to the Chief Assessor and Collector K. M. C. And to the City Deputy Collector. From the report of the Nazir dated 18-12-1976, it appears that no body turned up to participate in the auction on the aforesaid date and time though he waited up to 3-45 p. m.
After that the Nazir submitted a reference dated 6-1-1977 to the Court stating therein the above facts. The notices of the above reference were served on the Advocates for the parties as per bailiff's report dated 11-2-1977 above reference was taken up by the Court on 21-3-1977 and it was ordered that fresh proclamation for the sale of the property be issued. Accordingly a fresh proclamation was prepared on 8-8-1977, the copy of which was served on the Nazir on 9-8-1977.
After that on 11-8-1977 the copies of the same were affixed at the property, at the police station and on the Notice Board of the High Court. Thereafter, the Nazir fixed 1-10-1977 at 3-30 p. m. For fresh auction at the site. The Superintendent Execution and Miscellaneous Branch of this Court, through his letter dated 8-8-1977 forwarded the copy of the above proclamation to the Chief Assessor and Collect& K. M. C. Karachi and also to the City Deputy Collector, Karachi. In pursuance of the aforesaid new proclamation the Nazir again went to the site to auction the property, but again there was no bidder as per Nazir's report dated 1-10-1977. Thereafter, the Nazir submitted his reference dated 30-10-1977 stating therein, that the property was put to auction on 1-10-1977 at the site at 3.30 p. m. After advertising in four newspapers namely, English Morning News, Urdu Mashriq, Sindhi Hilal-e-Pakistan and Gujrati Jillat. It was also stated that besides the above advertisement 200 hand bills were also got printed which were distributed at the important places in the City, but there was no bidder. It was also pointed out that even on 18-12-1976 there was no bidder. It was also stated that the Nazir by his personal efforts had obtained an offer of Rs, 3,25,000 supported by a pay order for Rs, 77,500 from Mr. Saeed & Durrani. The Court's approval to the acceptance of the aforesaid offer was sought. It may be pertinent to mention that a notice for the reference was served on the advocate for the judgment-debtor as well as on the decree-holder as per bailiff's report dated 17-11-1977 for 20-11-1977. On the latter date the matter was placed before Hamza Qureshi, J, when the Advocate for the decree-holder was present but none was present for the judgment-debtor. The following order was passed on the aforesaid Nazir's reference :- "20-11-1977 Mr. Inamullah for D. H. None is present for J. D.
' Report of the Nazir showing that through his personal efforts he has been able to secure an offer Rs, 3,25,000 given by Mr. Saeed Durrani. The approximate value of the property was shown as Rs, 2,33,164 only. Under the circumstances the offer of Mr. Saeed Durrani is reasonable and is confirmed by consent of Mr. Inamullah. The Auction Bidder to deposit the balance within one month. Sale certificate to issue after the balance is deposited with the Nazir.
' (Sd.) Judge."
' In pursuance of the above order the purchaser deposited the balance of the purchase price on 4- 12-1977 through a pay order dated 3-12-1977, which was en-cashed by the Nazir on 7-12-1977.
Against which a receipt was issued on 10-12-1977. The sale certificate was issued on 19-12-1977. The judgment-debtor has filed the present application on 8-1-1978 for setting aside the aforesaid sale.
4. In support of the above application Mr. Fazle Ghani the learned counsel for the judgment-debtor has urged the following points :--
(1) that the acceptance of the offer made by the purchaser was in violation of the provisions of Order XXI, rule 65, C. P. C. Which contemplates a sale by public auction and not by a private offer.
(ii) The terms of the proclamation were settled in violation of the provisions of Order XXI, rule 66(2), C. P. C.
(iii) that there has been violation of the provisions of Order XXI, rule 67 (1), C. P. C.
(iv) there has been violation of Order XXI, rule 68, C. P. C.. In as much as the date of the sale was not fixed after the expiry of 30 days from the date of the affixation of the proclamation at the Court's premises.
(v) that as on 18-12-1976 the sale was postponed for more than 7 days, but the mandatory provisions of Order XXI, rule 69 (2), C. P. C. Was not complied with.
(vi) that the price deposited by the purchaser was in violation, of order XXI, rule 15, C. P. C.
(vii) that the property has been sold for a concealed value known to the Nazir and to the purchaser.
' On the other hand Mr. Khalid Anwer, the learned counsel for the purchaser has urged that the judgment-debtor's present application is barred by limitation and that there has not been any violation of any of the provisions of the C. P. C. And that the judgment-debtor has failed to make out the case under Order XXI, rule 90, C. P. C. For calling an interference by this Court.
5. In order to appreciate the respective contentions of the learned counsel for the parties, it will be advantageous to refer to Order XXI, rule 90, C. P. C., which reads as follows :- "Where any immovable property has been sold in execution of a decree, the decree-holder or any person entitled to share in a rate able distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it : Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud: ' Provided further that no such application shall be entertained unless the applicant deposit such amount not exceeding twenty per cent. Of the sum realized at the sale or furnishes such security, as the Court may direct."
It may be noticed that in order to succeed under the above-quoted provision of law, it is incumbent upon an applicant either to prove material irregularity or fraud and also to satisfy the Court that the applicant has sustained injury by reason of such irregularity or fraud.
6. Before dealing with the contentions of the learned counsel for the parties on merits of the case, it may be appropriate to deal with the question of limitation. In the instant case as mentioned earlier that the purchaser's offer was accepted by the Court on 20-11-1977 and it was ordered that the purchaser should deposit that balance of the price within one month. However, the purchaser deposited a pay order dated 3-12-1977 on 4-12-1977 with the Nazir of this Court, which was en- cashed by the Nazir's office on 4-12-1977, against which a receipt was issued on 10-12-1977, which was followed by the issuance of a sale certificate on 19-12-1977. From the above facts it is clear that upon the acceptance of the purchaser's offer the sale had taken place on 20-11-1977 (when the purchaser's offer was accepted), and it was completed when the purchaser deposited a pay order dated 3-12-1977 with the Nazir of this Court on 4-12-1977. If we take either of the above two dates as the date of the sale, the present application which was presented on 8-1-1978, is barred by time by virtue of Article 166 of the First Schedule to the Limitation Act, which provides a period of 30 days from the date of the sale, for setting aside a sale in execution of a decree. Mr. Fazle Ghani the learned counsel for the judgment-debtor has contended that for the purpose of computing the period of limitation the date of issuing of the certificate namely, 19-12-1977 should be taken as a terminus a quo and not the date of the order dated 20-11-1977 or the date when the purchaser deposited the balance of the price. In my view, the above contention is untenable as the issuing of a sale certificate is merely an administrative act, which was to follow on the receipt of the balance amount as per aforesaid Court's order date 20-11-1977.
' It was alto urged by Mr. Fazle Ghani that in any case Article 181 of the First Schedule would be applicable to the instant case. In my view, article 181 cannot be pressed into service when there is a specific article namely, article 166. Mr. Khalid Anwar has referred to the case of Muthiah Chettiar and another v. Bawa Sahib and others (1), wherein it was held by a Division Bench of the Madras.
High Court that inherent powers of a Court are not to be used for setting aside an alleged irregular sale when the application of the judgment-debtor under Order XXI, rule 90 is found to be barred by time. I, therefore, hold that the present application is barred by limitation.
7. (a) Reverting to the various contentions urged by the learned counsel for the parties on merits. J intend to take up in seriatim.
(b) Referring to Mr. Fazle Ghani's contention that Order XXI, rule 65 C. P. C. Contemplates a sale by auction and does not provide acceptance of a private offer, it may be observed that in the instant case the property was put to auction twice on 18-12-1976 and on 11-10-1977, but there was no bidder. The final decree was passed on 13-8-1974 and the execution application was filed on 29-1- 1975. In my view, though Order XXI, rule 65, C. P. C. Contemplates a sale by auction but in a fit case a Court is competent under its inherent power to accept a private offer after due notice to the parties when it is satisfied that the offer is reasonable. As pointed out hereinabove that the purchaser's offer was accepted by the Court after due notice to the parties for the aforesaid Nazir's reference dated 30-10-1977. The notice to the judgment-debtor was served through her Advocate. As per bailiff's report dated 17-11-1977 the notice was received by the judgment-debtor's Advocate's Court Clerk. The approximate value of the property given in the sale proclamation was 2,33,164.00 and whereas the offer was for Rs, 3,25,000. In addition to the above amount the purchaser undertook to discharge tax liability, which according to him comes to Rs, 8,000 to Rs, 10,000. If the (1) AIR 1915 Mad. 392 contention of the learned counsel for the judgment-debtor is to be accepted, it would mean that the powers contained in the C. P. C. Are exhaustive and a Court has no powers to ensure the execution of a decree by passing an appropriate order which may not fall within the compass of the C. P. C. It may be pertinent to mention that though the C. P. C. Does not empower a Court to grant police aid for the execution of a decree or to authorize breaking/opening of locks/doors, but the Court under its inherent powers can grant prayer for police aid etc. In order to ensure the execution of the decree. It cannot be urged that granting of the police aid will be illegal.
' In this regard it may be relevant to refer to the case of Falah-ul Momineen Trust v. V. P. Abdullah (1), wherein Muhammad Hussain, J. (as his Lordship then was) while considering the question as to whether the order of granting of the police aid by the executing Court in an execution application was legal in the absence of an express provision to the C. P. C., was pleased to hold the Legislature has in the C. P. C. Provided for all possible eventualities and to such matters which were not foreseen at that time a provision like section 111, C. P. C. Was enacted to empower the Court to meet such an unforeseen eventuality. It was further held that apart from section 151, C. P. C. The Court has also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction. His Lordship also quoted with approval the following passage from page 136 of Corpus Juris Secundum, Volume 21 :- "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, es quoque concessa esse videntur, sine quibus' jurisdictio explicari non potuit. Thus, an Act which empowered justices to require persons to take an oath as special constables, and gave them jurisdiction to enquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be effectively exercised."
' In my view, an executing Court in the absence of a prohibitive legislation has implied powers to do all things that are reasonably necessary for executing its decree effectively. The above powers include the power to accept a private offer for the attached property, when in spite of best efforts the attached property could not be sold through auction and the-Court is satisfied that the private offer is reasonable.
(c) Reverting to the second contention of Mr. Fazle Ghani that the provisions of Order XXI, rule 66(2), C. P. C. Were not complied with, it may be observed that in support of the above contention Mr. Fazle Ghani has pointed out that encumbrances were not shown in the proclamation. Namely :-
(i) The decree of the District Court referred to hereinabove in para. 1 was not mentioned.
(ii) That the decree-holder had not filed statement of interest up to date.
(iii) It was not stated that the judgment-debtor had only leasehold rights in the plot.
' The copy of the two proclamations for the two auctions are on the file, which indicate that the name of the decree-holder in question was mentioned (12) P L I) 1970 Kar. 179 and also the decretal amount to be recovered were shown as Rs, 200,650.23. The above figure included interest as well.
At page 3 of the proclamation it was also stated under the column of encumbrances that the property was also attached against the decree in Execution No, 247/67 for the decree passed for Rs, 37,231. It is, therefore, incorrect that the encumbrances relating to the decrees were not shown.
The rights, and interest of the judgment-debtor in the property were put to auction. The full description of the property was also given. It is a matter of common knowledge that K. D. A. In its Housing Schemes grants 99 years lease. The omission to mention the above fact in the proclamation was of no consequence.
' It is also factually incorrect that the decree-holder had not filed any statement of interest. The statement of interest is on the record.
(d) Reverting to the contention of Mr. Fazle Ghani that the provisions of Order XXI, rule 67(2), C. P. C.
Were not complied with, it may he stated that in support of the above contention Mr. Fazle Ghani has urged that in the instant case the order of attachment was not proclaimed by beat of drum, the copy of the order was not affixed at the property and at the office of the Collector of the District and, therefore, there was breach of sub-rule (2) of rule 54 of Order XXI, C. P. C. Which was to be complied with by virtue of rule 67(2), C. P. C. It may be noticed that sub-rule (2) of rule 54 provides proclamation of the order by beat of drum or by other customary mode. In the instant case, it is clear from the record that the order of attachment and sale was advertised in the four newspapers on each occasion when the property was to be auctioned, i. e. On 18-12-1976 and on 1-10-1977. The aforesaid four news papers mentioned in para. 2 hereinabove in respect of the auction scheduled on 1-10-1977 are on the record containing the public notice for the sale of the property on 1-10-1977.
It is also clear from the Nazir's references dated 6-1-1977 and 30-10-1977 that in addition to the above public notices published in the newspapers, 200 hand bills were also got printed and were distributed at the important places of the city. The copies of the hand bills are on the file for both the aforesaid public auctions containing the full details of the encumbrances, the decreral amount and the description of the property etc. Including the valuation. It is also clear from the record as mentioned earlier that the copies of proclamations were affixed at the property in question for both the auctions and were also affixed at the police station and on the High Court's notice board. The copies of the proclamation were also sent to the Chief Assessor & Collector K. M. C. And to the City Deputy Collector's office under the Superintendent, Execution Branch's letters dated 2nd November 197u and 8th August 1977. The above contention of the learned counsel for the judgment-debtor is, therefore untenable. Mr. Fazle Ghani also referred to the case of Trimbak Ra'vji v. Nana and others (1), the case of Basharutulla v. Uma Churn Dutt (2) and the case of Rajendra Behari v. B. Gulzari Lal and others (3). In the first case, the sale was set aside on the ground that there was' no beating of drum, in the second case the sale was set aside on the ground that the auction was conducted before the time specified in the auction notice and in the third case, it was held that failure to publish a sale proclamation by beat of drum (where it is possible), is a material irregularity, but unless such irregularity can be connected with the alleged loss, the sale cannot be set aside. In my
(1) I L R 10 Bom. 504 (2) I L R 16 Cal. 794 (3) A 1 R 1933 All. 747 view, in Karachi the other customary mode for proclaiming a sale proclamation is through hand bills, and therefore, no exception can be taken to the fact that there was no beating of drum in the instant case. Furthermore, simpliciter the above omission would not render a sale liable to be set aside, but it should be proved that the aforesaid omission resulted into a loss to the applicant.
(e) Reverting to the contention that in the instant case there has been violation of Order XXI, rule 68, C. P. C. Inasmuch as the auction fixed for 1-10-1977 was before the expiry of the period mentioned in rule 68 of Order XXI, C. P. C., it may be observed that this is not correct. The first proclamation was affixed at the notice board of the High Court on 4th November, 1976 as per bailiff's report dated 13-11-1976 whereas the auction was fixed for 18-12-1976. The second proclamation was affixed at the notice board of the High Court on 9th August 1977 as per bailiff's report dated 15-8-1977, whereas the auction was fixed on 1-10-1977. It is, therefore, incorrect to urge that the sale was fixed before the expiry of 30 days from the date of affixation of the sale proclamation at the High Court notice board.
(f) Referring to the contention of the learned counsel for the judgment-debtor that there has also been breach of the provisions of Order XXI, rule 69(2), C. P. C. Inasmuch as the sale after the date of the first auction was postponed for more than 7 days and that there was no fresh proclamation issued, it may be observed that it is factually incorrect. The second proclamation was issued and the copies thereof were sent to the Chief Assessor & Collector K. M. C. And to the City Deputy Collector office and the copies of the same were also affixed at the property at the police station and on the High Court's notice board as pointed out hereinabove in para. 7 (d). The copy of the fresh proclamation is on the record with the endorsement of the bailiff.
(g) Reverting to the contention of Mr. Fazle Ghani that the property was sold at a concealed value known to the Nazir and to the purchaser, it may be observed that the terms of proclamation were settled after a notice to the judgment-debtor. In the proclamation the approximate value of the property shown was Rs, 2,331.64. As pointed out hereinabove the property in question was put to auction twice but there was no response. It is an admitted position that the bungalow in question is in the occupation of a P. I. A. Employee at Rs, 800 per month. It is plausible that there was no response to the public auction as the property was in the occupation of a tenant, the rent of which was not compatible with the value of the property. It was urged by the learned counsel for the judgment-debtor that the Nazir of this Court it in collusion with the purchaser and the tenant got the private offer accepted by this Court for an unreasonable price. There is no such allegation against the Nazir in the application filed by the judgment-debtor. The objection taken in the application was that the property in suit is in possession of the P. I. A. As a tenant of the applicant/judgment-debtor and is occupied by one Aftab and that there has been dispute between the landlord and the tenant in the past and that the property has now been purchased by another P.
1. A. Employee Mr. Durrani in collusion with the tenant. I cannot spell out any collusion even between purchaser and the tenant from the record of the case. On the other hand, the purchaser in his letter dated 29-10-1977 stated that the tenant who is in occupation of the property for the last 9 years, to him and to his family was very dear and near and that he would like that the tenant be not disturbed. After disclosing the above facts, the purchaser made an offer to purchase the property for Rs, 3,25,000 also undertook to pay all the outstanding taxes pertaining to this property .Which, according to him, were about Rs, 8,000 to 10,000. In addition to that he has also stated that he has incurred expenses amounting to Rs, 19,500 by way of stamp duty and other charges. The judgment-debtor in his present application has given the market value of the property as not less than Rs, 5 lacs. It may be again observed that the purchaser's offer was accepted after due notice to the judgment-debtor through her Advocate. It is unfortunate that he was not represented at the time when the Court accepted the purchaser's offer, but the legal position remains that the acceptance was after due notice to the judgment-debtor. In view of the above fact, it cannot be urged that the Nazir had sold the property for a concealed value or for an unreasonable price. If the Nazir was in fact allegedly in collusion with the purchaser, it would have been easier for him to manipulate any of the aforesaid two auctions held and to accept an alleged bid for an amount close to the valuation given in the proclamation, viz. Rs, 2,33,164.
Mr. Khalid Anwar, the learned counsel for the purchaser, referred to the case of Alliance Bank of Shimla Ltd. v. Miss I. Lowrie (1) in which it was held that the Court cannot set aside a sale under Order XXI, rule 92, C. P. C.1 on the ground of inadequacy of sale price.
It was also urged by Mr. Khalid Anwar that the objections relating to the defect in the proclamation cannot be raised by the judgment-debtor after the confirmation of the sale as the terms of the proclamation were settled after due notice to the judgment-debtors. In support of the above contention he has referred to the case of Dhirendra Nathi Gorai v. Sudhir Chandra Gosh and others
(2) wherein it was held that non-compliance with section 35 of the Bengal Money Lenders Act (X of 1940) does not render the sale a nullity and that the judgment-debtor, although receiving notice of proclamation not attending at drawing up of proclamation and also not taking objection to non- observance for the aforesaid section, cannot be allowed to raise the above objection and the sale is not liable to be set aside.
(h) Reverting to the contention of the learned counsel for the judgment-debtor that the price of the property was not paid by the purchaser in terms of Order XXI, rule 85, C. P. C., it may he observed that the aforesaid provisions of the C. P. C. Are not attracted to the instant case as the sale had not taken place in pursuance of any public auction. In any case, there has been compliance of the aforesaid provisions inasmuch as that the sale in favour of the purchaser was accepted by the Court through the order dated 20-11-1977 and it was ordered that the purchaser should deposit the balance of the price within one month, but the purchaser within 15 days deposted the balance price as the pay order dated 3rd December 1977 for the balance price was deposited on 4-12-1977 with the Nazir of this Court which was within 15 days from the date of the aforesaid order dated 20- 11-1977 Mi. Fazle Ghani has referred to the case of Manilal Mohanlal Shah and others v. Sardar Syed Ahmed Syed Muhammad and others (3) and the case of Syed Brothers, Lahore v. District Council.
Lyallpur (4). In the first case it was held that non-payment of price as required under Order XXI, rules 84, 85 and 86, C. P. C. Wipes out the sale. In the latter case it was held that the provisions of rules 85 and 86 of Order XXI are mandatory and that the order of confirmation of sale cannot precede deposit of value for which the property was sold. The facts of the above cases are distinguishable from the instant case for the aforesaid reason.
(1) AIR 1926 Lah. 588 (2) AIR 1964 1300
(3) AIR 1954 SC 349 (4) PLD 1977 Lah. 542
8. It was also urged by Mr. Fazle Ghani that this Court can invoke the provisions of section 47, C. P. C.
While considering the judgment-debtor's application in question. Whereas, Mr. Khalid Anwar has urged that after the confirmation of the sale section 47, C. P. C. Cannot be pressed into service.
Apart from the fact that the judgment-debtor's application in question is under Order XXI, rule 90 read with section 151, C. P. C. And no under section 47, the contention of Mr. Khalid Anwar is supported by the case of Behoy Krishna Paik and another v. Monta Juddi Shaikh and others (1) wherein it was held by the Dacca High Court that when the executing Court has disposed of the execution application after the confirmation of the sale, the executing Court becomes functus officio and as such as application under section 47, C. P. C is not maintainable.
9. Before parting with discussion I may observe that 1 had heard the arguments of the learned counsel for the parties on 11th, 12th and 13th August 1979. On the latter date upon the conclusion of the arguments I did not dictate the order or pronounced the order as the learned counsel for the parties requested that the order may not be pronounced as the parties were trying to settle the matter out of the Court. After that the learned counsel for the judgment-debtor took time on 19th August, 22nd August and 5th September 1974 on the ground that he was unable to obtain instructions from his client. When on 19-9-1979 the case came up for further orders before me Mr. Fazle Ghani, learned counsel for the judgment-debtor, stated that his client was not agreeable to the settlement. Thereupon, I reserved the case for orders. From the file of the case it appears that on 18-9-1979 the learned counsel for the judgment-debtor moved an application under section 47 read with section 151, C. P. C., wherein it was prayed that four issues be framed and the judgment- debtor be permitted to summon four witnesses mentioned therein. The above application was fixed for orders.' I did not consider it proper to issue notice upon the above application to the other parties since the arguments were concluded on 13-8-1979 and no case was made out for reopening, of the case. The above application is misconceived and therefore, it is dismissed. The record of the Nazir and the record of the Execution No, 156176 were made available to the learned counsel for the parties at their request during the arguments and were referred to by learned counsel for the parties in support of their contentions.
' In view of the above discussion I am of the opinion that the judgment-debtor has failed to make out a case under Order XXI, rule 90, C. P. C. For setting aside the sale. I, therefore, dismiss the above application but there will be no order as to costs.
(1) PLD 1961 Dacca 177