' MUHAMMAD NASEEM AKHTAR KHAN, J.---Through this Civil Revision the petitioner has challenged the order dated 18-4-2005 as well as the order dated 25-10-2005 passed by the learned Civil Judge Ist Class and the learned Additional District Judge, Ahmadpur East respectively, being illegal, against law and facts, hence, the same are liable to be set aside.
2. Briefly stated, the facts of the case are that respondent No, 1, Cotton Export Corporation Factory and others filed a suit under rule 22 of the Sindh Chief Court Rules for the recovery of Rs,11,91,035 together with markup thereon at the rate of Rs,0.43 per Rs,1000 per day from 1-1-1991 against Ahmad Zaman and others(respondents Nos.2 to 8) and ultimately the suit was decreed on 20-5- 1996 and the said decree was transferred to Bahawalpur and then was entrusted to the learned Civil Judge 1st Class, Ahmadpur East for its execution because the property of the judgment-debtor was situated in Ahmadpur East. The decree holder submitted Fard Taleeka (schedule of the property of the judgment-debtor) for execution of the decree. During the execution proceedings, the bailiff reported that the above mentioned factory at Ahmadpur East does not exist, therefore, the learned executing Court directed the attachment of the House No,1235/B-I Muhalla Kajjalpura, Bahawalpur. In the meantime Mst. Rafat Ara, wife of Syed Muneer Akhtar Shah respondent No,8 filed an application for setting aside the decree-dated 20-5-1996 before the hon'ble Sindh High Court, Sindh but the said application was dismissed. Thereafter, Mst. Rifat Ara filed an objection petition before the learned executing Court at Ahmadpur East, but the same was also dismissed on 8-1- 2002, against which an appeal was filed but the same too met the same fate and during this period, the property of the judgment debtor Syed Munir Akhtar Shah was auctioned by the learned executing Court to Haji Muhammad Yaqoob respondent No,9 on 7-2-2002. On 7-3-2002 the present petitioner Malik Muhammad Asad filed an application, for the cancellation of the auction, before the learned executing Court. The present petitioner Malik Muhammad Asad filed objection petition with a contention that he is tenant in the house in dispute under Mst. Riffat Ara and has paid a huge amount to her and interested in the purchase of house through open auction because his interest is involved in the disputed house and prayed that the auction dated 27-2-2002 in favour of respondent No,9 be set aside. During the pendency of the application of Malik Muhammad Asad petitioner, the learned executing Court dismissed the objection petition filed by Mst. Rifat Ara against which she filed an appeal before the lower appellate Court where the present petitioner Malik Muhammad Asad filed an application under Order I, rule 10, C.P.C. For impleading him as party. The appeal filed by Mst. Rifat Ara was dismissed.
3. The learned executing Court after hearing both the parties dismissed the application for cancellation of auction vide order dated 18-4-2005. Feeling aggrieved by the said order an appeal was preferred by the petitioner, which too was dismissed. Hence, this civil revision.
4. Learned counsel for the petitioner has contended that the learned trial Court was wrong in dismissing the objection petition of the petitioner for non-deposit of 20% of the sum realized at the time of sale and also the learned appellate Court fell into error by dismissing the petitioner's appeal on the ground of want of locus standi as in terms of Order XXI, rule 90, C.P.C. Any person interested in the property could file objection, hence the objection petition was rightly filed by the petitioner.
5. Conversely, the instant civil revision is vehemently resisted from the side of the respondent No,9 (auction-purchaser). It is note worthy that auction has not been confirmed up till date. During the course of arguments it came out that Cotton Export Corporation has merged in Trading Corporation of Pakistan in the year 2001 and now all the interest of C.E.C. Have been transferred to T.C.P. Mr. Ghulam Abbas, G.M. Of T.C.P and Syed Wajid Hussain Advocate appearing on behalf of T.C.P have made a statement after the impugned decree dated 20-5-1996 has been satisfied because a sum of Rs,1191035 (decretal amount) and Rs,17940 as litigation expenses have been paid by respondent No,8 (Syed Munir Akhtar Shah) and they do not want any further proceedings in the execution and have no objection to the release of the disputed house in favour of the owner (respondent No,8).
6. Arguments heard. Record perused.
7. After considering the respective contentions of the petitioner, auction-purchaser and statement of decree-holder it comes out that the decree dated 20-5-1996 was passed by the Hon'ble Sindh High Court and the same was transferred to Bahawalpur and entrusted to Civil Judge Ahmadpur East for execution. Due to non-availability of "Cotton Mills" of the judgment-debtors, the house in dispute was attached and auctioned. The auction has not been confirmed by the executing court up till date.
8. The petitioner, admittedly an occupant of house in dispute as tenant, has filed this Civil Revision because he is interested in the purchase of house in open-auction and desires the setting aside the auction proceedings held on 27-2-2002. The learned counsel for the petitioner has claimed the right to purchase the house being occupant/tenant and has requested to set aside the auction on the ground of irregularity or fraud. Rule 90 of Order 21 reads as follow:-- "Where any immovable property has been sold in execution of decree, the decree-holder or any person entitled to share in a ratable distribution of assets or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it".
9. The petitioner Malik Muhammad Asad is only tenant in the house in dispute and as such does not fall in the definition of decree-holder or any person entitled to share in the ratable distribution of assets. The interest as tenant cannot be stated to be interest in the property. Further the decree which was going to be executed has been stated to be satisfied by the Managing Director of the Trading Corporation of Pakistan and he has further stated that the Trading Corporation of Pakistan is not interested in further proceedings on the execution petition. So, the desire of the petitioner to participate in the open auction cannot be substantiated because the house in dispute is going to be released to the owner because he has made the payment of the decretal amount as well as litigation charges.
10. As far as the case of respondent No,9 Haji Muhammad Yaqub/auction-purchaser is concerned, it is argued by his learned counsel that auction of the house in dispute has created some rights in favour of auction purchaser which cannot be destroyed by putting the house in dispute for further open action. After the payment of the decretal amount as well as litigation charges by one of the judgment-debtors (respondent No,8) the decree has been satisfied and the decree-holders are not interested in the further proceedings of the execution petition. The auction in favour of respondent No,9 has not been confirmed so far. Although, he has deposited a sum of Rs,7,75,000 in the executing court. Due to satisfaction of decree no further proceedings can be taken in execution petition, so the auction proceedings in favour respondent No,9/auction-purchaser are set aside.
The amount of Rs,7,75,000 deposited by Haji Muhammad Yaqub auction purchaser will be returned to him along with a compensation at the rate of 10% which. Will be paid by respondent No, 8 Syed Munir Akhtar Shah/owner of the house.
11. To give an end to this about twenty years old litigation, the up shot of the above discussion is:--
(i) The revision petition filed by Malik Muhammad Asad-petitioner is hereby, dismissed and he can get back the amount, if any, deposited by him.
(ii) The auction proceedings with regard to the house in dispute conducted so far are set aside. The auction purchaser is entitled to the refund of his amount of Rs,7,75,000 along with the compensation at the rate of 10%, which will be paid by Syed Munir Akhtar Shah respondent No,8.
(iii) The said Syed Munir Akhtar Shah will be owner of the house in dispute and is entitled to get the same vacated from the petitioner Malik Muhammad Asad through the process of law.
12. A copy of this judgment be sent to the learned Executing Court for information, stoppage of proceedings pending in his Court including objection petition filed by respondent No, 8/Syed Munir Akhtar Shah and certify result of the execution to the Court/Sindh High Court which passed the decree as required by section 41 of the Civil Procedure Code.