1. ' KHILJI ARIF HUSSAIN, J.---Brief facts for the purpose of deciding appeal are that Suit No,1380 of 1999 was filed by the respondent No,1 against respondent Nos.2, 3, and 4 for recovery of Rs,30,32,210. Suit was decreed in favour of respondent No,1 vide judgment, dated 5-3-2004 with mark-up at 6% per annum. Execution Application No,76 of 2004 was filed by the decree-holder with a prayer to sell two fishing trawlers namely Bijarani-I and Bijarani-II of the judgment debtors. After attachment of the trawlers Nazir was directed to sell the said trawlers. Nazir through Public Notice, dated 7-2-2008 invited sealed bids from general public. One of the conditions as appeared in the advertisement for sale was that sale is to be confirmed subject to the approval of the Court and the remaining amount will be deposited within 30 days after the confirmation by the Court. The appellant gave bid in respect of the properties in question after inspection the fishing trawlers and found them in good condition. The appellant on 1-3-2008 gave bid of Rs,91,11,000 for the two trawlers and deposited a sum of Rs,1,000,000 through pay order being 10 per cent of bid amount.
2. ' On having information that Nazir has submitted report, dated 3-3-2008 that Messrs Korangi Harbour Authority is claiming their interest in the said two trawlers and same cannot be attached or sold in execution of decree, the appellant then wrote a letter, dated 3-3-1998 requested the Nazir to return the earnest money. The appellant then on 5-3-2008 visited both the trawlers and found that several items were missing from the trawlers and seawater has entered into the engine room and the engine of one of the trawlers did not start. The appellant then filed application for return of the earnest money, which was dismissed by the learned Single Judge and ordered to forfeit the earnest money and to resale the said two trawlers.
3. ' Aggrieved by the said order, this appeal has been preferred.
4. ' Heard Mr. Ishrat Zahid Alvi learned advocate for the appellant. None present from the Advocate- General Office.
5. ' It has been contended by the learned counsel for the appellant that the appellant deposited 10 per cent of the bid amount with the Nazir of this Court as earnest money and immediately on having information that another party is claiming interest in the trawlers, requested the Nazir on 3- 3-2008 to return the bid amount, but Nazir did not return the same, under these circumstances application was filed in Court. It was further argued that trawlers have again been put for auction and from the sale proceeds decree was duly satisfied and appellant is entitled for the return of the bid amount.
6. ' We have taken into consideration arguments advanced by the learned counsel for the appellant and perused the record. It appears that in terms of rule 85 of Order XXI of C.P.C. Purchaser was required to deposit the full amount of purchase money within 15 days from the date of sale.
7. However, auction notice itself provided that successful bidder was required to deposit balance amount within 30 days from the date of confirmation of bid by the Court. Under rule 86 of Order XXI, C.P.C. Court can order to forfeit the amount deposited by the auction-purchaser on default to pay the balance of auction amount within 15 days of the sale which in this case was 30 days from the date of confirmation of sale. It is an admitted fact that bid given by the appellant was not accepted by the Court and as such appellant was not required to deposit balance.
8. ' In the instant case order of forfeiture can be passed only after acceptance of the bid by Court and thereafter on failure of the auction-purchaser to deposit the balance amount within 30 days. The appellant has requested for return of his bid amount, before the same was accepted by the Court.
9. While hearing the application for return of the bid amount Court can order that appellant is not entitled for withdrawal of his bid and can pass order for 'confirmation of bid and thereafter on failure to deposit the balance amount within 30 days can pass order for forfeiture of the bid amount. Without acceptance of the bid, auction-purchaser was not required to deposit balance sale consideration and order for forfeiture of the bid amount cannot be passed.
10. ' For the foregoing reasons, the impugned order is set aside. Nazir is directed to return the bid amount deposited by the appellant.
11. ' We would like to observe here that as and when sale notice published by the Nazir or Official Assignee they should also incorporate an additional condition in it that highest bidder/lowest bidder as the case may be cannot withdraw his bid before acceptance of the same or otherwise by the Court within 15 days from the date of submitting the reference, to avoid the situation where after submitting the bid by one party at higher side on the very next day or day thereafter before the Nazir or Official Assignee submit reference to the Court for consideration of bid, withdrawal of the offer, frustrating the sale of the property. Copy of the order may be placed before Hon'ble Chief Justice for necessary instructions to office.