' CH. EJAZ YOUSAF, J.---This appeal under Article '185(2)(d) of the Constitution, is directed against the judgment dated 18.1.2000 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeal filed by the respondents Nos. 1 to 4 was allowed.
2. Facts of the case, in brief, are that a suit for partition and perpetual injunction was filed by the respondents Nos. 5 to 7 in the Civil Court at Lahore in respect of property situated in Model Town, Lahore, measuring 4 kanals, 12 marlas with a bungalow constructed thereon, on the averments that the house in question originally belonged to their, predecessor-in-interest Professor Mirza Habib- ur-Rehman who expired on 12.6.1984 and the parties were in their joint possession thereof. Since the defendants/respondents Nos.. 1 to 3 started interfering with the possession of the plaintiffs/ respondents Nos. 5 to 7 and also planned to alienate the property in question, therefore, need to file the suit occurred. The suit was contested by the defendants. It would be pertinent to mention here that although the respondent No, 1 in her written statement initially took the stand that the property in question was gifted to her by late Habibur Rehman during his life time and she was in exclusive possession thereof, yet, subsequently vide application dated 4.4.1993, admitted that the plaintiffs as ,well as the defendants, all were entitled to their respective shares in the inheritance of the deceased and she would have no objection in case the suit, is decreed and order for partition of the house is passed. On the pleadings of the parties as many as eight issues were framed.
Defendants/ respondents Nos. 1 to 3 led t,heir documentary as well as oral evidence whereas no evidence was produced by the plaintiffs/ respondents Nos. 5 to 7. On 12 10.1985 the, Trial Court passed the preliminary decree wherein shares of the parties were determined and a local commission, in order to ascertain "as to whether the property in dispute was liable to be partitioned or not and if partitionable, what should be the mode?" was appointed. The Local'
Commission on 19.11.1995 reported that, the property was indivsible. On the basis of fhe said report, the Trial, Court proceeded to put the property for local auction whereupon a Local Commissioner was appointed who accordingly auctioned the property on 28.11.1996 fora sum of Rs, 60,25,000/-.
Record reveals that a sum of Rs, 15,07,000/- being I/4th of the auction price, was deposited by the auction purchaser on 12.12.1996. As per terms and conditions of the auction he was directed to deposit the remaining sale price upto 23.12.1996. However, on an application made by the auction purchaser, time to deposit the remaining sale price was extended upto 13.1.1997. On deposit of the remaining sale price the Trial Court vide, its judgment dated 16.1.1997 decreed the suit. The said decree was challenged by the respondents Nos. 1 to 3 in the High Court through R.F.A. No, 31/1997, on the grounds that confirmation of auction was illegal for the reasons; firstly, that provisions contained in Article 45 read with section 2(15) of the Stamps Act were not complied with and secondly, no compliance with the mandatory provision of Order XXI, Rule 66, CPC was made inasmuch as neither any reserve price was fixed in the proclamation, nor any inquiry in that behalf was conducted. The afore-mentioned first contention was repelled by the learned Judges in the High Court and it was held that since only sale certificate was issued in favour of the auction purchaser and there was no document on record showing that the auction purchaser had ever intended to transfer the property in dispute in the name of another person which could be done through a proper sale-deed executed and registered in accordance with law and not by getting his name substituted in the certificate of sale, therefore, the contention was devoid of force..
However, it was observed that the other contention raised, because of non-mentioning of the value of the property sought to be auctioned carried weight, thus the appeal, vide the impugned judgment, was allowed and it was directed that fresh proclamation be issued in accordance with law to auction the property in question keeping in 'view the observations made in the said judgment, hence this appeal.
3. Learned counsel for the appellants, has inter alia, contended that since the Partition Act, 1893 is not exhaustive, therefore, basically it was inherent jurisdiction of the Court which was attracted to the case and therefore, the provisions of CPC could not have been pressed into service; it has been further contended that although the judgment of the Trial Court was upheld on material points yet, it was set aside solely for the reason that compliance with the provision of Order XXI, rule 66, CPC was not made and under the garb of directing fresh proclamation, the appellant has been non- suited in that he would be looser if he could not be a successful bidder. He has further argued that since under the law no body can be prejudiced by. An act of Court, therefore, if there was any irregularity in the auction proceedings, or omission at the part of the executing Court then the appellant was not supposed to be penalized. Alternatively it was argued by the learned counsel for the appellant that since a huge sum of Rs, 60,25,000/- was deposited by the purchaser in the Court in the year 1996 and it is lying there for more than twelve years, therefore, in case the impugned judgment is maintained then 5% solatium may be allowed to the appellant on the amount deposited by him towards sale of the property in question. Reliance has been placed reliance on the cases reported as (i) R Ramaprasada Rao v. R. Subbara-maiah and others (AIR 1958 Andhra Pardesh 647), (ii) Baratam Satyanarayana v, Baratam Kantharao and others (AIR -1989 Andhra Pardesh 320), (iii) Badri Margin Prasad Choudhary and others v. Nil Ratan Sarkar (AIR 1978 SC 845), (iv) Ghulanz Abbas v. Zohra Bibi and another (PLD 1972 SC 337), (v) Mst.
Asrna Zafarul Hassan v. Messrs United Bank Ltd. And another (1981 SCMR 108), (vi) Mst. Ilahi Noor and others v. Muhammad Din (PLD 1977 SC 634), (vii) Mirza Adam Khan v. Muhammad Sultan (PLD 1975 SC 9), (viii) Ahmed Ali v. Noor Muhammad and others (1987 CLC 1575 (Karachi)), (ix) Mst. Rani & others v. Balla and others (AIR 1916 'Lahore 186), (x) Muhammad Nizam-ud-Din v. Amin-ud-Din & others (AIR 1922 Lahore 35), (xi) Krishna Mohan Kundu v. Nripendra Nath Nandi and others (AIR 1933 Calcutta 662), (xii) MA. Bhasin Film Corporation v. M/s. Shatimar Cinema and others (AIR 1983 Delhi 317), (xiii) Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146), (xiv) Janak Raj v. Gurdian Singh & another (AIR 1967 SC 608), (xv) Pir Khan through his legal heirs v.. Military Estate Officer, Abbottabad & others (PLD 1987 SC 485). And (xvi) Karim Bakhsh v. Qadir Bakhsh and others (PLD 1950 Lahore 143). ,4. Mr. Najamul Hassan Kazmi, learned counsel for the respondents; on the other hand; while controverting the contentions raised by the learned counsel for the appellant has submitted that auction proceedings were carried out in sheer disregard and utter violation of the express provision of Order XXI, rule 66 inasmuch as neither the reserved price of the propertywas ascertained or mentioned in the publication, nor its description qua the area constructed, the nature of construction, i.e, number of rooms, etc. Was given nor location was provided therein enabling the buyers to ascertain the real value of the property in question nor parties to the suit were given due notice of the auction either by the Court or by the auctioneer nor were they asked to file/submit estimates with regard to value of the property and the proceedings were carried out in a haste inasmuch as the objections filed by one of the judgment-debtors i.e, respondent No, 2 Humayun Akhtar, vide application dated 31.10.1996, were not attended to thereby rendering the entire proceedings as illegal. It is further his case that 25 % amount of the bid money of the sale price too, was not deposited on the day of auction, by the auction purchaser and the rest of the amount too, was not tendered within the stipulated time, and the time was extended by the Court at the back of the parties to the suit and that too, without any cogent reason, hence the judgment/decree passed by the Trial Court was rightly set aside by the High Court. He has placed reliance, on the cases reported as (i) Afzal Maqsood Butt v. Banking Court No, 2, Lahore (PLD 2005 SC 470),
(ii) Brig. (Retd.) Mazhar-ul-Haq & another v. M/s. Muslim Commercial Bank Ltd. & another (PLD 1993 Lahore 706).
(iii) Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. & others (2003 CLD 1963), (iv)
Messrs Ripple Jewelers (Pvt.) Ltd. v. First Women Bank (2003 CLD 1318), (v) Messrs Majid and Sons v.
National Bank of Pakistan (2004 CLD 1616), (vi) Mirza Munawar Baig v. Bank Alfalah Ltd. & others (2007 YLR 126 (Lahore)), (vii) Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Ltd. & others (2001 CLC 126), (viii) Messrs Karishma Fashion Boutique v. Habib Bank Ltd. (2006 CLD 954), (ix) Rana Muhammad Naseeb Khan v. Zarat Tarakiyati Bank of Pakistan & others (2007 CLD 466), (x) Khawaja Muhammad Arif v. Mrs. Tahira Asif and others (PLD 2005 SC 972), (xi) Mian Muhammad Asif v. Mst. Farkhanda Anwar & others (2003 CLC 394 (Lahore)), (xii) Abdul Haque and others v. Shaukat Ali and others (2003 SCMR 74), (xiii) Mst. Ilahi Noor and others v. Muhainmad Din (PLD 1977 SC 634), (xiv) Mirza Adam Khan v. Muhammad Sultan (PLD 1975 SC 9).
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case with their assistance, minutely.
6. As to the first contention raised by the learned Counsel for the appellant that since the Partition Act, 1893 is not exhaustive and it was inherent jurisdiction of the Court which was attracted and therefore the provisions of the CPC could not have been pressed into service, it may be mentioned here that no doubt the Partition Act is concise, yet, despite brevity it is not only comprehensive but is quite precise and explicit as well and therefore, affectively caters for the needs/matters related to the ,object of its promulgation besides taking care of the situation/eventualities arising from the proceedings carried out thereunder inasmuch as it has been provided in section 2 thereof that whenever in any suit for partition, in which. a decree for partition might have been made, it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of share-holders therein, or of any other special circumstance, a division of the property reasonably and conveniently could not be made and sale of the ,property and distribution of the proceeds would be more beneficial f9r all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested, individually or collectively, to the extent of any moiety or upwards, direct a sale of the property and distribution of the proceeds, in accordance with the procedure laid down in the ensuing sections.
7. It would be pertinent to mention here that in the originally promulgated section 7 of the Partition Act, it was provided under clause (a) that "when any property is directed to be sold under the Act, the following procedure shall, so far as applicable, be adopted, namely, if the property be sold under a decree or order of the High Court of East Bangal in the exercise of its original jurisdiction, the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar;" but since the said provision was, later on omitted by the Federal Laws (Revision and Declaration)
Ordinance, 1981 (27 of 1981), and the words "Code of Civil-Procedure, 1908" were inserted in clause
(b) thereof, therefore, at present we are left with clause (b) of section 7 only which provides that if a property is required to be sold in a decree or order of any other Court such procedure as the High Court niay from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure, 1908 in respect of sales in execution of decrees shall be followed. Here it would be advantageous to have a glance at section 7 of the Partition Act which reads as follows:--
7. Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as faras practicable, be adopted, namely:--
(a) omitted
(b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such, rules are made, the procedure * prescribed in the Code of Civil Procedure, 1908 in respect of sales in execution of decree."
' It appears that clause (a) of section 7 was purposely omitted from the provision in order to add the words "Code of Civil Procedure, 1908" therein so as to provide for a mechanism to conduct sale of properties under the Act. Although the words used in the beginning of clause (b) that "if the property be sold under a decree or order of any other Court" in the absence of omitted clause (a) give the impression that the same, perhaps refer to decree of some Court other than the one under the Partition Act, yet, when clause (b) is read keeping in view the omitted clause (a) in conjunction with the opening words of section 7, whereby it has been provided that when a property is directed to be sold under the Partition Act, "the following procedure so far as practicable be adopted", then the only inference possible to be drawn is that in the absence of procedure laid down by the High Court, no other procedure, except as provided by the. Code of Civil Procedure, has to be followed.
The proposition in hand came up for consideration before this Court in the case of Mst. Ilah Noor and others (supra) and was answered in the following words:-- ' "The property in the instant case was sold by a District Court, and as pointed out by the learned Judge, rules have not been framed by the Lahore High Court for regulating the procedure for sales in partition suits, therefore, the property had to be sold in accordance with the provisions of Order XXI of the Civil. Procedure Code, and, it was common ground between the learned counsel that for example the provision of rule 66 of this Order had been complied with, therefore, Mr. Mahboob submitted that as rule 66 was applicable to the sale so was the rule. This submission is correct because there is no provision to the contrary in the Partition Act".
' Thus it is abundantly clear that in selling any property under the Partition Act, primarily the procedure prescribed by the CPC has to be followed and therefore, the provision of Order XXI, rule 66 was attracted to the instant case. The contention, therefore, is devoid of force.
8. A review of the authorities, cited at the bar by the learned counsel for the parties as well as study of the relevant provisions including rule 66 of Order XXI, CPC, makes it amply clear that in a partition suit when the situation to sell the property arises the Court, as a rule, Must, ask the parties concerned to state before it estimated price of the property which in their opinion is likely to be fetched and although it is not essential for a Court to give its own estimate in the order but in drawing publication, having regard to the express provision of rule 66 of Order XXI, C.P.C., the Court while passing an order must take into consideration all the material facts, which are necessary for a purchaser to know in forming an opinion regarding valuation of the property. In the instant case order dated 6.12.1995, whereby Ch. Abdul Majeed was appointed as auctioner, as well as the 'auction notices do not indicate as to whether reserve price of the property was ascertained or parties were asked to furnish their estimates, nor it finds place in the publication nor relevant details qua title of the property, nature of constructions e.g. Number of rooms, etc. Has been provided therein enabling the buyer to ascertain actual value of the property in question. Further, although in his report dated 11.12.1996, it has been mentioned by the auctioner that the notices were also issued to the parties, as well as the decree-holders and one Mst. Tajalla Mughal appeared before him for herself as well as on behalf of Mst. Yasmin Masood and gave in writing that they were not interested in the auction, yet record does not reflect as to whether other shareholders of the property were ever given option to purchase the property. Record reveals that an application under section 47, CPC was also submitted before the Court of first instance by one of the share- holders, namely, Humayun ,Akhtar and its was clearly mentioned therein that value of the property was approximately more than 80 lass per kanal at the relevant time yet, due consideration was not given thereto.
9. It may be noted here that a decree for sale of the property in a suit for partition cannot be equated with other money decrees such as auction of the property mortgaged in a suit for recovery of loan etc., because in a partition suit, the parties both, decree-holders as well as judgment-debtors, being owners have interest in the property and therefore may move for setting aside the sale, in case the price fetched in their estimation is inadequate.
10. It has been contended by the learned counsel for the appellant that although the learned Judges in the High Court have set aside the sale in favour of the appellant and ordered for re- auction of the property and has thus granted relief but have failed to grant 5% solatium in terms of rule 89, Order XXI, C.P.C., it may be mentioned here that strictly speaking though the sale has been set aside by the Trial Court in consequence of an application made 'under rule 89, Order XXI, C.P.C.
For which payment of 5% solatium was a condition precedent, and the order has been: reversed in appeal yet since the sale has been set aside at the instance of one of the share-holders in the property and Mr. Najamul Hassan Kazmi, learned counsel for the respondents has also expressed his no objection to payment of solatium in case the property is re-auctioned, therefore, we hold that the appellant would be entitled to receive 5% solarium on the sale price of the property in question in addition to refund of the amount deposited by him towards sale price of the property in question alongwith profit/interest, if any, accrued thereon.
11. Upshot of the above discussion is that subject to observations made in para supra qua payment of 5% solatiurn on the sale price of the property and refund of the amount deposited by the appellant towards sate price of the property in question alongwith profit accrued :thereon, this appeal is hereby dismissed with no order as to costs.