1. ' MS. RUKHSANA AHMED, J.--- By this order, I intend to dispose of C.M.A. No,935 of 2007 filed by the auction purchaser under section 151, C.P.C., in which he has contended that under the terms of the auction the property, which he has successfully bidded and purchased, the liability of payment of utility bills has to be paid from the auction money and the same is crystal clear from the contents of the Official Assignee's Reference dated 16-9-2003 and he has argued that his client on 5-5-2003 has taken possession of the said property and has been gravely inconvenienced since then as there has been no supply of electricity to the premises and he is incurring heavy expenses of running his factory with his own generators. Mr. Azizur Rehman has opposed the said application on behalf of the Decree Holder and has objected to the application submitting that the auction purchaser is not justified in seeking direction that the Official Assignee make payment of the utility bills he argued that the application being misconceived merits no consideration. The utility charges, as per law have no priority over the mortgagee (Bank/Decree-Holder's) dues. Charges of the utility bills except property tax are not charges or encumbrances on the property sold, thus the claim if any, should only be enforced against the consumer and not against the mortgaged properties. He has drawn the attention of this honourable Court in this regard to the order passed by this Court while disposing of Execution Application No,131 of 2000 UBL v. Cotton Mills in which my learned brother Justice Mushir Alam in a similar case, had declined claim of the electricity bill as it was under the law no such light in respect of utility charges as against the property was recognized as against the dues of Sindh Urban Immovable Properties Tax, 1958. Thus there is no specific provision that provides liability to be foisted on the property and not against the person contrary to the position as regards the utility charges are concerned. The dictum laid down by the apex Court in the case of I.D.B.P. Is binding on all authorities for all intents and purposes. It is clear in my mind that such claims of the utility charges are not recoverable from any person except the consumer or person as who contracts for providing for such utility services. In conclusion no liability was detailed as regards such dues were concerned in property. Learned Judge further concluded on one focal point which was that the facts are remaining that whatever worth of the claim of the KESC/utility charges, the legal position nor will such claim have any bearing on the property as such the claim if any would have if at all directed against the consumer of the remedy of KESC or other utility services could only be enforced against the consumer and not against the property.
2. ' In the present case the Advocate of the auction purchaser has drawn this Court's attention to the Reference filed by the Official Assignee on 16-9-2003 which is present on the suit file 482 of 1998 pertains to the auctioned subject property being "Plot No,F-8, SITE, Karachi" which when auctioned a statement of the outstanding bills was submitted in the Reference in which claims which were mentioned as Revenue and property tax were verified by the said office and the same were to be paid. Further it was submitted in the report that, "the claim of KESC for Rs,85,70,304 for three meters mentioned at S.No,IV in para 3 ante it was submitted that after examining the same late payment charges were not required to be paid of Rs,3,08,601 by the Official Assignee but the balance of Rs,82,61,703 is payable by the Official Assignee". Thereafter this reference came up for hearing before the Court and the Court was pleased to pass order on 25-5-2004 wherein regarding amenities it was stated that "it is only that the possession has already been handed over to the auction purchaser and the only controversy as regarding Plot No,F-8, SITE, Karachi is regarding the amenities and other dues". That finally after due verification authorities concerned have detailed the same in the reference. The auction purchaser has no objection for payment thereof. Official Assignee submits that the verified dues have been mentioned in the listed reference. Let verified dues be paid by the official Assignee to the authorities concerned in respect of Plot No,F-8, SITE, Karachi and the reference stood disposed of. Then in subsequent Court order dated 11-4-2005 it was submitted that the auction bid was approved on 5-5-2004 free from all encumbrances and counsel for the auction purchaser drew this honourable Court's attention on the dictum laid down by the apex Court in 1994 SCM R 2248 wherein it was held that the auction purchaser got the title property free from all encumbrances, there is no cavil to such proposition. Controversy appears to be whether utility and other charges and admitted liabilities of the previous management could be paid out of sale proceeds or otherwise. Official Assignee submitted that in the judgment referred to above it had been observed that the utility charges could not be paid as the priority over the mortgaged property. Such as it may be, the mortgagee claim under Order XXXIV, Rule 13, C.P.C.
3. Would be satisfied at the first instance. Learned counsel for the decree-holder has drawn this honourable Court's attention to the decree passed in suit No,482 of 1998 in which on page 3 of the said decree the Court has granted the plaintiff prayer (till the date payment and costs as taxed and shown above).
4. ' At this moment let this Court peruse contents of Order XXXIV, rule 13, C.P.C.--- "13. Application of proceeds.--- (1) Such proceeds shall be brought into Court and applied as follows:--- ' First, in payment of all expenses incidental to the sale or properly incurred in any attempted sale; ' Secondly, in payment of whatever is due to the prior mortgage, on account of the prior mortgage, and of costs properly incurred in connection therewith; ' Thirdly, in payment of all interest due on account of the mortgage in consequence whereof the sale was directed and of the cost of the suit in which the decree directing the sale was made; ' Fourthly, in payment of the principal money due on account of that mortgage; and ' Lastly, the residue (if any) shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.
(2) Nothing in this rule or in rule 12 shall be deemed to effect the powers conferred by section 57 of the Transfer of Property Act 1882.
5. ' It is fact that the executing Court cannot go beyond the decree and the decree in the present case has not been fully satisfied. The learned Advocate of DH/Bank drew this Court's attention to the order dated 27-1-2009 passed in Execution No,232 of 2000 wherein the very said C.M.A. No,935 of 2007 had been argued by both the advocates and after hearing the same at length my learned brother after perusal of each and every detail of the case including the fact that the subject premises had been auctioned had held that "out of sale proceed with the official Assignee if there is no amount due towards property tax, the decree in the Execution may be satisfied in the first instance and if any amount remains with the Official Assignee then he can make a fresh reference in this regard."
6. ' The contention of the lea1ned Advocate of the auction purchaser as per section 73 of the C.P.C.
7. Has no relevance in the present case in view of the fact that the decrees in the present case are under Order XXXIV therefore, rule 13, C.P.C. Would apply in stricto senso, as such said CMA is dismissed. The auction purchaser is at full liberty to address his grievance at the proper forum.