MAQBOOL BAQAR, J. --- The present appeal has been preferred against the order dated 08.03.2002, whereby a learned Single Judge of this Court dismissed the Appellant's application under Order XXI, Rule 58, C.P.C. (C.M.A. No. 578/2000) in Execution Application No. 19/1996.
The brief facts of the case are that a suit bearing Suit No. 457/1990 filed by Respondent No. 1 against Respondent No. 2 for recovery of Rs. 2,514,000/- was decreed against Respondent No. 2 ex- parte on 10.01.1991. Though an Execution Application bearing No. 19/1996 filed by Respondent No. 1 for enforcement of the above judgment and decree the Respondent No. 1 prayed for attachment and sale of various properties allegedly belonging to Respondent No. 2, including the factory situated on Plot No. 455, SITE, Karachi known as Hamraz Textil Mills .(Pvt.) Limited. By Order dated 19.09.1998 the Nazir of this Court was directed to hold public auction of the aforesaid property according to the High Court Rules. On 04.10.1999 the learned Single Judge of this Court ordered that the aforesaid property be sold by the Nazir by inviting sealed bids. By order dated 20.12.1999, a bid submitted by Respondent No. 3 for Rs. 3,500,000/- being the highest was accepted by the learned Single Judge and the Nazir was directed to proceed further in accordance with the Rules to finalise the sale. A sum of Rs. 3,50,000/- being 10% of the bid amount was deposited by Respondent No. 3 alongwith his bid. He however, deposited the balance amount of Rs. 3,150,000/- in the shape of a pay order dated 13.1.2000 which pay order was encashed and ,credited on 19.01.2000. By order dated 09.02.2000 the learned Single Judge of this Court was pleased to dire& the Nazir to hand over possession of the aforesaid property to Respondent No. 3. The possession was taken over and delivered to respondent No. 3 on 15.02.2000. Since in the premises, a number of tenants who were in possession of and were carrying on their business from the different sheds situated in the said premises were dispossessed . Such tenants filed separate applications' against their dispossession and the attachment and sale of their respective machinery. By order dated 16.02.2000 the learned Single Judge directed the Nazir to appoint his guards at the said property and to ensure that nothing is removed therefrom. By order dated 24.02.2000, the learned Single Judge ordered that the possession of the tenements be handed over to the respective tenants/intervenors subject to their furnishing security in the sum of Rs. 5,00,000/- each. On 01.03.2000 the Appellant filed an application under Order XXI, Rule 58, C.P.C. (C.M.A. No. 578/2000) in the aforesaid Execution Application for removal of attachment and setting aside the sale of the aforesaid property. In the meanwhile Respondent No. 2/judgment Debtor filed an application under Section 12(2), C.P.C. Read with Order IX, Rule 13, C.P.C. (J. Misc. No. 7/2000) for setting aside the aforesaid ex-parte judgment and decree, as according to Respondent No. 2, the same was obtained by Respondent No. 1 through fraud and misrepresentation. The aforesaid application was granted by the learned Single Judge by order dated 20.02.2001 and the decree was set aside. Through the impugned order the executing Court dismissed the appellant's aforesaid application as being barred by limitation.
5. Mr. Naim-ur-Rehman, the learned counsel for the Appellant submitted that the order of attachment and sale of the property in question was absolutely illegal and void as the property was not liable to be attached or sold, as at no point in time it belonged to respondent No. 2, the judgment debtor, and was in fact owned by the appellant company, who purchased the same from one Muhammad Yousuf, the sole proprietor of Aftab Industries on 10.3.1990, for a consideration of Rs. 10,00,000/-, vide agreement dated 10.3.1990, on which date Muhammad Yousuf delivered possession of the property to the appellant company. The learned counsel in support of his assertion referred to the aforesaid agreement, annexure A-12 to the memo. Of appeal , in terms whereof Aftab Industries, the proprietary concern of Muhammad Yousuf, agreed to transfer the said property, in favour of the appellant company, against a total sale consideration of Rs.
10,00,000/-, which payment was acknowledged therein. It has also been recorded in the agreement that MIs. Aftab Industries has handed over vacant and peaceful physical possession of the said property to the appellant company after receipt of the entire sale consideration amount.
The learned counsel also referred to a search certificate dated 29.5.1991, issued by Sindh Industrial Trading Estate (SITE), annexure A/18 to the memo. Of appeal, which shows that on the date of its issuance, the property stood in the name Of Aftab Industries, a sole proprietary concern of Muhammad Yousuf and further that a request for transfer of the property in the name of the appellant company was pending with SITE. He also referred to letter dated 10.3.1990 from Aftab Industries to the appellant company, (Annexure A-14 to the memo. Of appeal), acknowledging the fact that possession of the property has been delivered to appellant company in terms of the agreement dated 10.3.1990 and that Aftab Industries has no right and interest in the said property, and to the letter dated 6.6.1990, (annexure A- to the memo. Of appeal) whereby the appellant company forwarded the aforesaid agreement, to SITE and requested them to transfer the property in their name. The letter bears acknowledgement of receipt of the original agreement by SITE.
6. The learned counsel submitted that the judgment debtor has obtained orders for attachment and sale of the property by fraud and misrepresentation, knowing fully well that the property was owned by the appellant company and was never owned by the judgment debtor.
7. Mr. Miamur Rehman submitted that the fact that the factory premises/building is owned by the appellant company is also evident from the agreement of licence dated 8.7.1999 executed between the appellant company and Mis. Venus Corporation, which document was submitted by one Furrukh Saleem alongwith his application in the execution proceedings, (C.M.A. No. 1839/2000), in terms of which document the appellant company granted licence to M/s. Venus Corporation to store their goods and to sublet the property. He also referred to the copy. Of the Partnership Deed dated 8.7.1999 submitted alongwith the aforesaid application, which shows that respondent No. 2, the judgment debtor was one of the partners of M/s. Venus Corporation and submitted that the judgment debtor has been dealing with the various tenants; in respect of the premises in question in his capacity as a partner of Ws. Venus Corporation, the tenant/licencee of the appellant company. He submitted that in view of the foregoing, the position that emerged before the executing Court was that at no point in time the property was owned by respondent No. 2, the judgment debtor, and that the same belonged to the appellant company, and therefore, the attachment and sale of the property was without jurisdiction and void.
8. He submitted that even otherwise, in consequence of the order dated 20.8.2001 passed in J.M. No. 7/2000, (whereby the judgment and decree, in pursuance whereof, the property was attached and sold, was set aside), not only the attachment of the property stood withdrawn but its sale also became a nullity.
9. . Mr. Rehman further contended that the impugned sale became a nullity and was completely wiped out, also for the reason that respondent No. 1, the auction purchaser, failed is deposit the balance 90% of the purchaser price within 15 days from the date of acceptance of his offer, as essentially required in terms of Rule 85 of Order 21, C.P.C. He submitted that the respondent No. 3's offer for purchase of the property was accepted on 20.12.1999 and the terms of rule 85 he was required to deposit the balance sale consideration amount by the 4th of January, 2000, however, in default of such mandatory requirement he admittedly did not deposit the amount at least until 13.1.2000 and deposited the amount vide Pay Order dated 13.1.2000, which pay order was encashed and credited on 19.1.2000 i.e. After a lapse of at least nine days time and as such, the amount of Rs. 3,50,000/- deposited by respondent No. 3 alongwith his offer, became liable to forfeiture, as required in terms of Rule 86. In support of his contention, the learned counsel relied a number of judgments.
10. The learned counsel submitted that since the appellants was not a party to the proceedings between the decree holder and the judgment debtor they came to know of the impugned execution proceedings only on 15.02.2000, when the possession of the property was forcefully delivered to respondent No. 3 and filed an application before the executing Court for setting aside the order for attachment and sale of the property on 1.3.2000 (C.M.A. No. 578/2000).
11. Concluding his arguments, Mr. Naimur Rehman submitted that since the attachment and sale of the property was without jurisdiction and had been otherwise become a nullity as a consequence of setting aside of the judgment and decree dated 10.1.1991 and also on account of non- compliance by the respondent No. 3, the auction purchaser, of the mandatory requirements of Rule
85. The executing Court ought to have so declared the impugned attachments and sale a nullity, but dismissed the appellant's application (C.M.A. 578/2000) on the ground of limitation.
12. In response, Mr. Mushtaq Memon, the learned counsel for the auction purchaser, the Respondent No. 3, submitted that the Respondent No. 3 being a bona fide purchase, having paid the entire price of the property has acquired proprietary rights therein and the sale in his favour cannot, be set aside. He submitted that at the time of property was put to sale and the Respondent No. 3's offer was accepted by the Court and . Upto the date when possession was delivered to him after making full payment of the sale price the judgment and decree dated 10.1.1991, in pursuance whereof the property was sold, was in the field C.L.R. and the subsequent setting aside thereof cannot have any bearing on the sale, or the Respondent No. l's right and title over the, property. He submitted that the Courts have drawn a clear distinction between a bona fide purchaser for .Consideration in Court sale and the case where the Decree Holder has himself .Purchased the property. In support of his contention he relied on the judgments in the case of:-
(1) Hudaybia Textile Mills Ltd. And others v. Alied Bank of Pakistan Ltd and others (PLD 1987 SC 512);
(2) Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65);
(3) Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others (PLD 1953 Lahore 147);
(4) Janak Raj v. Gurdial Singh and another (AIR 1967 SC 608);
(5) H.S. Siddappa v. Lakshmamma and'another (AIR 1965 Mysore 313);
(6) Chota Nagpur Banking Association v. C.T.M. Smith and another (AIR`(30) 1943 Patna 325);
(7) Sorimuthu Pillai and others v. Muthukrishna pillai (AIR 1933 Madras 598);
(8) Jaibhadar Jha v. Matukdari Jha- (AIR 1923 Patna 525);
(9) Mahomed yaqoob v. P.L.R.M. Firm and others (AIR 1932 Rangoon 17);
(10) Piari Lal v. Hanif-un-Nissa Bibi and another (ILR 38 Allahabad 240);
(11) Zain-ul-Abdin Khan v. Muhammad Asghar A.I Khan (AIR 10 Allahabad 166);
(12) Nawab Zain-ul-Abdin Khan v. Muhammad Asghar All Khan and others (15 of A 12 (Privy Council);
(13) Shivla, Bhagvan v. Shambhu Prasad Parvatishankar and another (ILR 29 Bombay 435);
14. Regarding the question of default and its consequence, Mr. Memon submitted that the Respondent No. 3 has deposited the balance amount of the purchase price within 15 days of the letter dated 29.12.1999, whereby the Nazir of this Court informed the said Respondent about acceptance of his offer and requested him to deposit the balance purchase price. Such deposit was made vide pay order dated 13.01.2000, within 15 days of the said letter and thus there has been no delay on the part of the Respondent No. 3. He submitted that even otherwise the requirement of deposit of the balance amount of the purchase price within 15 days of the acceptance 'of the offer as envisaged by Rules 85 of Order XXI of C.P.C. Is not mandatory' and the Courts are not bereft of the power to extend time for such deposit. In support of his contention, the learned counsel relied on the judgments in the cases of Al-Hassan Feeds and another v. United Bank Ltd. And 6 others (2004 CLD 275) and Messrs. Chawla International v. Habib Bank Limited (2003 CLD 956).
15. Regarding the ownership of the property, Mr. Memon submitted that contrary to the Appellant's claim the property in fact belonged to Respondent No. 2, the Judgment Debtor, who evidently was in possession of the property and has been dealing with its affairs throughout. He referred to the photo copies of the' various tenancy/lease agreements executed by the Judgment Debtor in favour of the various tenants in respect of the property in question, annexure R-12 to R-20 to the counter-affidavit of respondent No. 3. The learned counsel submitted that the Search Certificate relied upon by the Appellant company also show that the property does not stand in the name of the appellant company but stands in the name of M/s. Aftab Industries, which is a sole proprietary concern of one Muhammad Yousuf and that a request for transferring the property in favour of the wife .And two sons of the judgment debtor was pending. The learned counsel contended that the appellant company cannot claim title in the property in question merely on the basis of agreement of transfer of rights to lease (Annexure A-12), which agreement; in terms of Section 54 of the Transfer of Property Act, does not create any interest in the property in favour of the appellant company. He submitted that even otherwise the appellant company and the judgment debtor.Cannot be said to be different parties as all the three Directors of the appellant company are the family members of the judgment debtor being his aforesaid wife and sons.
16. The learned counsel further submitted that the application filed by the appellant company was barred by limitation and has rightly been dismissed as such. He pointed out that the impugned attachment was ordered on 29.9.1997 and was effected by way of pasting on the factory premises and the impugned sale was ordered on 20.12.1999, however, the appellant company filed C.M.A. No. 578 of 2000, as late as on 1.3.2000. He submitted that Muhammad Kashif, the Director of the appellant company who has signed the memo. Of appeal on behalf of the appellant company, as submitted earlier, is a son of the judgment debtor and as such was fully aware of the proceeding against his father and cannot be said to be ignorant of the various orders passed in the execution proceedings and the impugned attachment and sale.
17. Heard the learned counsel for the parties at length and perused the record of the case thoroughly.
It is indeed true that the ex-parte decree and judgment in pursuance whereof the property in question was sold, has been set aside vide order dated 20.2.2001 passed on respondent No. 2's application under Section 12(2), C.P.C. (J.M. No. 7/2000). However, we find ourselves unable to uphold the contention that such would result in nullifying the impugned sale, in view of the explicit pronouncement of the Hon'ble Supreme Court in Hassan Din v. Hafiz Abdus Salam and others to the following effect:-- "The upshot of the above discussion of law on the subject is that in setting aside of an ex-parte decree, notice to the decree holder as on record is sufficient. Such setting aside of the decree does not affect the auction/sale of the property in execution of the exparte decree, nor does it affect the Auction Purchaser. This general principle, however, is subordinate to another principle that where the Auction Purchaser happens to be the decree holder himself, as in this case, then the protection available to a bona fide third party Auction Purthaser, is not available to decree holder on the mere ground that a Court auction had taken place and necessary certificate has been issued."
To the same effect is the judgment in the case of Mian Abdul Khaliq v. M. Abdul Jabbar Khan and others (PLD 1953 Lahore 147), expressed in the following words:- "once a sale has validly taken place in execution proceedings, confirmation of the sale cannot be withheld merely on the ground that the decree has been wiped out or reversed in the meantime. A consideration of the language of Section 65, C.P.C., as compared with the provisions of Section 316 of the Old Code, supports this proposition. In such a case, therefore, the Court is under a duty to confirm the sale under Order 21, Rule, 92, C.P.C. Unless objections have been successfully, taken under. Rules 89 to 91 of that Order."
"For the reasons already given and the decisions noticed, it must be held that the appellant- Auction Purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the . Sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger Auction Purchaser is protected against the vicissitudes of the fortunes, of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside of modified."
"Civil P.C. (1908), S. 144---Rule of restitution is to be relaxed in favour of stranger purchaser---But purchaser must be bona fide purchaser and not with knowledge that was being challenged.
Section 144 embodies a well-established rule of equity that on the reversal of the decree the party against whom the wrong decree is passed should, as far as possible, be placed in the same position which he would have occupied but for such decree, because it is the duty of the Court to act rightly and fairly according to the circumstances towards all the parties involved and to remove as far as possible the consequenco of a wrong or unjust decree. This rule may be relaxed in those cases where it conflicts with another rule of equity, namely, that a bona fide 2008 Hamraz Textile Mills (Pvt.) Ltd. V. Saeedullah Khan Lodhi 465 (Magbool Baqar, J.) purchaser for value should not be allowed to suffer on account of the mistakes or irregularities committed by a Court of law, but it should not be relaxed in favour of a party who had due notice of the fact that the decree in execution of which he has proceeding to purchase the property was liable to challenge and had been challenged because he cannot be deemed to have acted with due care and caution if in spite of such notice he proceeded to purchase the property. The purchaser is howeyer entitled to clirn a refund of the sale proceeds withdrawn by the decree holder with interest from the date of his dispOssession. It is true that a stranger to the decree, is not bound to inquire into the merits of the decree holder's claim or into the validity of the decree and therefore ordinarily the presumption is that such a person is unaware of these matters, but where there is clear and cogent eVidence that he was fully aware of the merits of the controversy in regard to the property purchased by him and was also aware that the validity of the deCree was under challenge, there is no room for the presumption."
However, the instant case is not merely of setting aside of the decree under Section 12(2), C.P.C. But in an appeal filed against the order passed under Section 12(2), C.P.C., a Division Bench of this Court has been pleased to reject the plaint and therefore the position here is different from the above- referred cases.
18. Furthermore and as evident from the very Search Certificate dated 9.5.1991, issued by Sindh Industrial Trading Estate 'and relied upon by respondent No. 1 for obtaining orders for attachment and sale of the property, it can been seen that the property was not owned by the judgment debtor and stood in the name of one Muhammad .
Yousuf, the proprietor of M/s. Attab Industries. No material has been submitted by either of the respondents to show that the property in question, at any point in time, was owned by the judgment debtor. As regards the photocopies of the tenancy/lease agreements filed by respondent No. 3, the auction purchaser alongwith his counter-affidavit to the memo. Of appeal, as annexures R/12 to R/20. It may be noted R/12 to R/15, R/19 and R/20, which are of the year 1999, have been executed between M/s. Venus Corporation and the various tenants, in respect of the factory premises and has been signed by the judgment debtor on behalf of M/s. Venus Corporation, which firm, as noted earlier is/was in turn a tenant/licencee of the appellant company, and the judgment debtor is a partner of the said firm and R/13 and R/18 which are of the year 1996 have been signed by .The judgment debtors on behalf of Bena Trader, similarly, R/16 and R/17 which are of the years 1991 and 1995 have been signed by him on behalf of Voha Export (Pvt.) Ltd., whereas the lease agreement R-14, executed between the judgment debtor and one of the appellants, namely Zahida Begum, describes the former merely as a licensor in respect of sheds constructed on 3450 sq. Ft. Of the plot in question and not as an owner of any portion of the said plot/property. Even executing Court in its order dated 17.2:2000 has observed that the order of attachment of the property was obtained by respondent No. 3, the decree holder on the basis of incomplete, unverified and vague facts and without providing proper assistance to the Court. As regards the contention of the learned counsel for the auction purchaser that the Director of the appellant company, which company claims to have purchased the said property from Muhammad Yousuf, the previous owner, in March, 1990, are sons and a wife of the judgment debtor, the respondent No. 2, it would suffice to say that the appellant company is a separate entity distinct from its Director and no shareholders/or Director of a company can be said to be the owner of any particular piece of a property in which the company has an interest. Such distinction has to be clearly observed between the company as a legal entity and its rights on the one hand and individual shareholders and their right on the other, as such, it cannot be said that the property in question is owned by its shareholders or Directors. Furthermore, it hardly need any mention that a property owned by a wife and sons of a judgment debtor, or for that matter of any person cannot be said to be a property of such person. Following cases may be referred to in this regard:--- "Mohan Singh Oberoi 'V. R.I Bahadur Jodha Omal Kuthalla (PLD 1961 SC 6), The Eastern Federal Union Insurance Company v. State Life Insurance Corporation of Pakistan (1987 CLC 1408) and EBM Company Ltd. v. Domanion Bank (AIR 1937 PC 279)."
The orders of attachment and sale of the machinery in question is therefore absolutely illegal, wholly without jurisdiction and void and is not even required to be set aside.
Similar view as expressed by the Madras High Court in Chengalraya Reddy and Others v. Kollapuri Reddi (AIR 1930 Madras 12), in the following words:-- "where a person is not one against whom any decree has been passed or order capable of execution has been made, a Court has no jurisdiction to sell his property in execution of the decree.
And if a sale takes place. The sale is ultra vires and void being in excess of Court's jurisdiction, the jurisdiction of the Court being limited' to execute the decree against a person against whom only the decree has been passed. It was further, held that the sale *need not be set aside. A void sale in execution need not be set aside the period of limitation (comparatively shorter) prescribed by Article 166 would not apply, but general period of three years prescribed by Article 181 would apply and that right to apply accrues to a person within meaning of Article 181 as soon as he is aggrieved by disturbance to his possession of land; and so long as he is in possession it does not matter to him what orders of excess sales or excess deliveries are passed behind his back."
To the same affect is Kedar Nath Goenka v. Munshi Ram Narain Lal and others (AIR 1935 Privy Council 139).
The respondent No. 1 cannot, therefore seek to enforce any right in respect of either of the factory premises or the machinery in question on the basis of the impugned sale.
19. It is also an admitted position that .The respondent No. 3's offer for purchase of the property in question was accepted by the executing Court on 20.12.1999 and that alongwith such offer respondent No. 3 deposited an amount of Rs. 3,50,000P being 10 percent of the offer, however, the balance sale consideration amount was deposited by him vide pay order dated 13.1.2000 which was encashed and credited in the relevant Account on 19.1.2000, whereas in terms of Rule 85 of Order 21, C.P.C., he was required to deposit the balance .Sale consideration amount within 15 days from the date of acceptance of his offer which fell due on 4.10:2000; the auction purchaser, having defaulted in complying with the provisions of Rule 85, cannot escape the consequence as envisaged by Rule 86, which requires that in the event of default in depositing the full amount of purchase price within 15 days from the sale of the property, the Court may; after defraying the expenses of the sale, forfeit to the Government, 'the initial deposit, and shall resale the property and further that the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold. From the consequences as provided for by Rule 86 there remains no doubt that as soon as, the auction purchaser defaults in depositing the balance purchase price, as required by Rule 85, the sale stands completely wiped out and becomes a nullity and it not even required to be set aside. The fact that the amount was deposited within fifteen days of the auction from the Nazir, would not wipe out the default, as it was the bounded duty of the auction purchaser to make the deposit within fifteen days of the acceptance of his offer and no demand was required to be made in that regard.
PLD 1993 Lahore 706), a Division Bench of the Lahore High Court held that in law 3/4th of the sale price should have been deposited by Auction Purchaser in Court within 15 days of sale and non- deposit of such amount within the requisite time would render the sale void.
Similar view was expressed by a Division Bench of the Lahore High Court in the case of Messrs.
Dawood Flour Mills and others v. National Bank of Pakistan (1999 MLD 3205).
"In my humble opinion the above review of case-law shows that the provision with regard to the payment of 75 percent of the balance purchase money contained in Rule 85 of Order 21, C.P.C. Is mandatory in nature and not merely directory and that non-compliance thereof renders a sale void and the Court is under an obligation in such circumstances to order for re-sale of the property in terms of Order 21, Rule 86, C.P.C. I am further of the view that non-payment of balance 75% of the purchase money in terms of the provisions of Order 21, Rule 85, C.P.C. Cannot be described as an irregularity in connection with the 'publishing and conducting of the sale' so as to attract the provisions of Order 21, Rule 90, C.P.C. The effect of noncompliance of the provision of Order 21, Rule 85, C.P.C. On an auction sale, in my view is that the sale is rendered void and the Court is bound to order for re-sale of the property in terms of Order 21, Rule 86, C.P.C. And, therefore, it is not necessary that there should be an application for re-sale of the property to the Court either by the decree holder or the Judgment Debtor. I am also of the view that the Court has no power either under Section 148 or Section 151, C.P.C. To extend the time fixed under the rules for payment of the balance of the sale price. The maxim that the act of the Court prejudice no man, in my humble view, apply on to those cases where it is shown in the first place that the party, who acted bona fidely on the order of Court was in no way responsible for passing of that order and secondly the party was in a position to meet his obligations under the law but non-compliance resulted due to the orders of the -Court. Objections to the validity of such an order of the Court will also be not entertained in these circumstances if the party objecting to its validity had acquiesced into it."
It was further held that the Court clearly was not possessed of any power to enlarge the time fixed under the rules.
"The provisions of 0. 21, Rr. 84, 85 and 86 requiring the deposit of 25 percent of the purchase money .Immediately, on the person being declared as purchaser, such person not being a decree holder, and the payment of the balance within 15 days of the sale, are mandatory and upon non- compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a stranger purchaser without depositing 25 percent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nu[lity. The very fact that the Court is bound to re-sell the property (Rule 86) in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law."
20. The judgment of the Hon'ble Supreme Court in the case of Al-Hassan Feeds and another v.
United Bank Limited and 6 others (2004 CLD 275), relied upon by Mr. Memon is clearly distinguishable from the facts of the present case.
However, in the present case, neither was any extension granted by the executing Court for depositing the balance amount nor did the judgment debtor agreed to deposit the decretal amount and/or five percent of the sale price for setting aside of the sale nor, indeed, was there any question of his defaulting in making such payment and as such, the above-cited case is of no avail to be auction purchaser, the respondent No. 3.
So also are the facts Messrs. Chawla International v. Habib Bank Limited (2003 CLD 956) relied upon by Mr. Memon, distinguishable from the present case as in the reported case the Court had granted one week's time to the Auction Purchaser to deposit the initial 15% amount of the purchase price and the deposit was made within such period, whereas regarding the deposit of the balance purchase price the learned Division Bench refrained from making any order as the controversy was before the Hon'ble Supreme Court.
21. As regards the question of limitation, in the first place , it may be noted that since the attachment and sale of the properties, as noted above, was without jurisdiction and void ab initio and since even otherwise in consequence of the default committed by the auction purchaser in depositing the balance purchase price, the purported sale was rendered a nullity. Such attachment and/or sale was not even required to be set aside and thus no application in that regard was required to be moved. Secondly, since the appellant company was not a party to the proceedings between the judgment debtor and the decree holder nor were they aware of the judgment and decree,for enforcement where of execution proceedings were initiated by the decree holder, or of any orders passed by the executing Court till the date the possession of the property was taken over by the Nazir and delivered to the auction purchaser i.e. 15.2.2000, there was no question of the appellant company approaching the Executing Court, any time earlier then 15.2.2000 and since the attachment and sale of the property and the order for taking over possession of the property was void and was obtained by the decree holder by fraud and misrepresentation, the period of limitation available to the appellant company was three years from the date of their dispossession, whereas, C.M.A. No. 578/2000 was filed by the appellant company on 1.3.2000, well within the prescribed period of limitation and the facts and circumstances of the case ought to have been granted by the executing Court. Reliance in this regard is placed on Haji Hussain Haji Dawood and others v. M. Y. Kherati (2002 SCMR 343), National Electricity Company or Pakistan v. Allied Bank of Pakistan Limited (1991 CLC 192), National Bank of Pakistan v. Nasir Industries (1982 CLC 388) and Chengalraya Reddy and others v. Kollapuri Reddi (AIR 1930 Madas 12).
The contention of Mr. Mushtaq A. Memon that since Muhammad Kashif, who is a Director of the appellant company and has signed the memo. Of the present appeal is a son of the Judgment Debtor, the appellant company was, therefore, fully aware of the judgment and decree and regarding the impugned sale and attachment, is wholly misconceived and untenable-as in the first place a son or for that matter any family member of any person is not necessarily supposed to be aware of the matter relating to such person and secondly and more importantly the Judgment Debtor himself was not aware of the judgment and decree and the various orders obtained by respondent No. 1 by furnishing wrong address of the Judgment Debtor and it was on such ground that the Court through order dated 20.02.2001, whilst holding that the notices are summons were never served on the Judgment Debtor and that the service effected through publication on a wrong address in an unpopular newspaper is contrary to law, granted the Judgment Debtor's application under Section 12(2), C.P.C. Setting aside the judgment and decree.
We would, therefore, allow this appeal and declare the impugned sale a nullity. The Nazir of this Court is directed to refund the amount deposited by respondent No. 3 in the aforenoted execution proceedings.