1. ' ABDUL RASHEED KALWAR, J.---Appellant has preferred this appeal against the order dated 14-1- 2008 passed by the learned District Judge Karachi East in SMA No,228/2004 (Major (Retd.) Zafar Shoukat v. Asad Shaukat) which is reproduced herein below:-- "Petitioner Major (R.) Zafar Shoukat respondent Asad Shoukat and Ms. Nahed Talat widow of Qamar Shoukat are present in person. While Ms. Kishwar Ara Begum and Brigadier (R.). Jahan Ara Paul are absent.
2. ' In compliance to the directions of the Honourable High Court of Sindh, Nazir of this Court carried out the auction proceedings but after the highest bid was submitted before him respondent No, 1 through his son appeared and moved application, on which, this Court passed order for fresh auction on the condition that the publication charges would be paid by the respondent No, 1.
3. However,the respondent No,1 has violated that order. His request for covering in hand was also granted but he failed to get publication effected, hence, the date for subsequent auction i.e, 11-2- 2008 has become redundant. Today he has also filed another application under section 151, C.P.C.
4. With the prayer that he is ready to purchase the property in question on the same price as that of highest bidder i.e, Rs,53,50,000 but at the same time he is seeking three months time to deposit the shares of the other legal heirs. This is height of high handedness on the part of the respondent No,1 who was playing all the norms of the justice in defeating the rights of the other legal heirs.
5. Honourable High Court had given chance to the respondent No,1 on the basis of his possession to purchase the property in question but he has failed to act according to the spirit of the order and is continuously violating the same. Accordingly, I do not find any justification in the present application under section 151, C.P.C. And dismiss the same and thereby direct the respondent No,1 to deposit the entire amount i.e, Rs,53,50,000 by 2-00 p.m. Today failing which the Nazir may dispose of the property to the highest bidder i.e, Qateel Ahmed son of Abdul Ali who is also in attendance and is prepared to pay the entire amount today.
6. ' Accordingly Nazir is directed to receive the payment from the highest bidder and to act accordingly i.e, prepared the sale-deed in his favour and the concerned Registrar should be directed to make necessary arrangements for effecting the registration by bringing all the registers and seals before him and the transaction be overseen by XX Civil Judge and Judicial Magistrate, Karachi East. The Nazir is further directed that after receipt of sale price in respect of the property in question disburse the same amongst the legal heirs according to their shares and the report be submitted within three days."
7. ' It is pertinent to mention that application dated 14-1-2008 under section 151, C.P.C. Was filed before the District Judge East Karachi by appellant is reproduced hereinbelow; ' Application under section 151, C.P.C.
8. ' It is respectfully submitted by the undersigned respondent, Asad as under:--
(1) That the petitioner has made an application under section 151, C.P.C. Wherein he has stated that he and other heirs in the matter have no objection to the property in dispute being sold for Rs,53,50,000 (Fifty three lac fifty thousand only); this is the offer which was received by the Court earlier as per record.
(2) That this respondent submits that he has already submitted an application that being the heir and entitled to first preferential right to purchase the property as per order dated 23-8-2007, the respondent accordingly hereby exercise his right to purchase the property in dispute at the aforesaid value as also already submitted.
(3) In view of the above facts and circumstances and order of the Honourable High Court this Honourable Court be pleased to accepte the respondent Asad Shoukat's offer to purchase the property at the said value. The respondent further earnestly requests the Honourable Court that he be given three months' time to deposit the share of the petitioner and other legal heirs in the Court, in the aforesaid sale price.
(4) Necessary orders it is respectfully prayed may kindly be passed on this application.
9. ' Learned counsel for the appellant argues that order is wrong, illegal, perverse, arbitrary, fanciful, harsh, against justice, equity, principle of law and in violation of direction of High Court. The value of property is in between Rs,7500,000 to 80,00,000; same is being sold for Rs,53,50,000 only. The legal heirs shall also sustain loss if the property is sold at the price of Rs,53,50,000 instead of its present market value i.e, Rs,75,00,000 to Rs,80,00,000. The appellant prays to set aside the impugned order and direct the trial Court to put the property in public auction through proclamation of sale at the value of Rs,75,00,000 to Rs,80,00,000.
10. ' Learned counsel for the respondent has argued the bid of auction purchaser has been accepted, sale certificate of the property has been issued by the Court of District Judge vide order dated 20- 1-2009 and sale-deed has been executed in favour of the auction purchaser on 31-1-2009.
11. Therefore title of the property has been transferred in favour of auction purchaser. Appeal is not maintainable being infructuous and is not maintainable under section 384 Succession Act.
12. ' Heard learned counsel for the parties and perused record made available before me. Impugned order was challenged by the appellant by presenting this appeal on 9-2-2008 but on 25-8-2008 it was dismissed for non-prosecution. C.M.A. No,2922/08 was filed by the appellant supported with affidavit of Advocate stating therein that due to sudden death of son aged 21 years of his brother- in-law in a suicide bomb blast attack at D.I. Khan on 19-8-2008 he had gone there. Since he could not inform his client therefore appellant was not in the knowledge of his departure nor fixation of appeal in Court on 25-8-2008, but C.M.A. No,2922/08 was also dismissed on 15-12-2008. Thereafter C.M.A. No,4172/08 was moved for restoration of C.M.A. No,2922/08 by Advocate for appellant supported with affi-davit of Advocate that, his car was stopped due to mechanical problem on the way to Court. On 16-1-2009. C.M.A. No,4172/ 2008 was granted with observation of the Court that conduct of appellant shows that he had not remained vigilant to pursue the matter therefore it resulted into dismissal of appeal and thereafter dismissal of restoration application. However, in the interest of justice restoration application C.M.A. No,4172/08 was allowed vide order dated 16-1- 2009 on the cost of Rs,5000 to be paid to the respondent. Office was directed to fix C.M.A.
13. No,2922/2008 on the next date of hearing. Then the case was placed before Court on 23-2-2009.
14. The appeal was restored and finally heard.
15. ' Conduct of the appellant all along shows that he tried his best to prolong and protract the matter in order to prolong his stay in the disputed property. Due to negligence or wilful delaying tactics the property was sold out under the Court order and registered sale-deed was executed. Impugned order as well as contents of application show that appellant was neither ready to make payment of bid amount nor he wanted to resolve the dispute but he had tired upto the last moment to keep the dispute alive. Impugned order was passed on 14-1-2008 and that time he had sought three months time for making payment but till today he did not deposit single penny before the Court regarding sale price of property in order to show his bona fides as to purchase of the property.
16. ' Learned counsel for the appellant has failed to point out any illegality or material irregularity in the impugned order. Regarding objection of Advocate for respondent as to maintainability of the appeal lets have a glimpse of section 384 of the Succession Act, 1925 which is reproduced herein below:--
384. Appeal.---(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this part, and the High Court may if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefore, to grant it accordingly, in supersession of the certificate, if any, already granted.
(2) An appeal under subsection (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908.
(3) Subject to the provisions of subsection (9) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, an order of a District Judge under this part shall be final..
17. ' From bare reading of section 384 of Succession Act appeal can only lie from the order of District Judge granting or revoking certificate. From perusal of impugned order shows that neither certificate has been granted nor revoked. The mala fide is apparent from the conduct of the appellant, therefore, the appeal does not lie under section 384 of the Succession Act. For above legal as well as factual reason I do not see any merit in the appeal, therefore the same is dismissed in limine along with listed application.