' MAMOON RASHID SHEIKH, J.---The brief facts giving rise to this petition are that respondents Nos. 1 jo 3 filed a suit for partition against the petitioner and respondents Nos.4 and 5 in respect of the property in dispute fully described in the plaint. On 12-10-2004 a preliminary decree was passed by the learned trial Court which was not challenged by either party. Consequently, a Local Commissioner was appointed for determination of the mode of execution of the decree. The learned Local Commissioner through his report submitted that the property could not be partitioned through metes and bounds. It was, therefore, recommended that the property be put to sale and the parties be given their respective shares from the sale proceeds. The process for sale of property through open auction was initiated through order dated 11-10-2005. The parties, however, on an application filed under sections 3 and 4 of the Partition Act, 1893, arrived at a compromise on .20-10-2005. As per the terms of the said compromise it was settled that respondent No,4 would pay the sale price of the property amounting to A Rs,1,400,000 to the other co-sharers in the property within three months. In consideration whereof the other co-sharers undertook to vacate the property in dispute and hand over the vacant possession thereof to respondent No,4. Whilst the compromise took place between the parties the process of sale of the property through open auction continued in pursuance of the order dated 11-10-2005 of the learned trial court. The sale consideration was not deposited by respondent No,4 as agreed to by the parties within the stipulated period. Meanwhile respondent No,5, who is represented by his L.Rs,, passed away. Consequently, on the next date of hearing i,e, 21-12-2005, the learned trial court ordered that theL.Rs, of the deceased respondent No,5 be brought on the record. At the same time respondent No,4 moved an application for enlargement of time to deposit the amount of Rs,1,400,000 in compliance of the order dated 20-10-2005. The petitioner, meanwhile, as a consequence of the pending auction proceedings filed an appeal on 31-10-2005 through which the learned trial Court's orders dated 11-10-2005 and 20-10-2005 were challenged. The former being the order whereby the auction proceedings were initiated in respect of the property and the latter being the order whereby the compromise between the parties was recorded. The learned appellate court through order dated 31-10-2005 stayed the auction proceedings, however, the proceedings before the learned trial court were not stayed. Consequently, respondent No,4' s application for enlargement of time was accepted on 24-2-2006 and on 24-10-2006 respondents Nos. 1 to 3 and 5 received their respective shares of the consideration from respondent No,4 in pursuance of the above compromise. The share of the petitioner under orders of the learned trial court was deposited in the Treasury. Feeling aggrieved the petitioner filed a revision petition which was dismissed by the learned Additional District Judge, Lahore, on 8-6-2006. The said order was challenged before this Court through Writ Petition No,6527 of 2006, however, the same was disposed of as having been withdrawn, on 2-3-2007, on the statement of the learned counsel for the petitioner to the effect that he would like to pursue the application filed by the petitioner before the learned trial court. The aforementioned application had been filed by the petitioner under section 3 of the Act, ibid, and was dismissed by the learned trial court through the impugned order dated 6-6-2007. The petitioner filed an appeal which was dismissed through the impugned order dated 5-11-2007 by the learned Additional District Judge, Lahore. Feeling aggrieved the petitioner has filed the instant petition against the impugned orders dated 6-6-2007 and 5-11-2007.
2. Arguments heard. Record perused.
3. The learned counsel for the petitioner submits that the compromise effected between the parties on 20-10-2005 was not binding on the petitioner as the consideration was not paid by respondent No,4 in time. The petitioner through his application under section 3 of the Act, ibid. Had offered to pay Rs,1,600,000 as the price of the property in dispute. The learned courts below did not take this factor into account. The petitioner was willing to pay an enhanced price to all the shareholders whereas respondent No,4 had bought the property in dispute at a lesser price. Further submits that the application moved by respondent No,4 for enlargement of time was wrongly accepted by the learned trial court behind the petitioner's back. The petitioner has been condemned unheard.
Relies on the judgment reported as Firdous Begum and 6 others v. Mst. Salamat Bibi and another (2008 CLC 248).
4. The learned counsel for the respondents controverts the stand of the petitioner and submits that a compromise was effected between the parties on 20-10-2005 as a consequence of an application filed earlier by the petitioner under sections 3 and 4 of the Act, ibid. Does not deny the fact that respondent No,4 failed to pay the consideration to the other co-sharers within the stipulated period according to the terms of the compromise. He, however, submits that the time was enlarged by the learned trial court on 24-2-2006. The share of respondents Nos. 1 to 3 and 5 was duly paid to and received by them whereas the petitioner's share was deposited in the Treasury under Court orders. This factum has been recorded by the learned trial court during the proceedings in pursuance of respondent No,4's application for enlargement of time. Further submits that the question of the petitioner having not been given notice of the said application or the petitioner having been condemned unheard has already been considered and decided against the petitioner in the earlier round of litigation. The final order being the one passed in Writ Petition No, 6527 of 2006 on 2-3-2007, through which the petitioner withdrew the said petition. That order has attained finality. Also contends that the share of the petitioner was deposited in the Treasury as ordered by the learned trial court. The petitioner is merely prolonging the matter for ulterior motives. Further contends that the application moved by the petitioner under section 3 of the Act, ibid, is the second application filed by the petitioner in this respect which in itself is not maintainable. The learned courts below in the impugned orders dated 6-6-2007 and 5-11-2007 have recorded this factum and decided that the petitioner is estopped from filing a fresh application. Supports the impugned orders and prays for dismissal of the petition.
5. I have gone through the impugned orders and find that the factum of the petitioner having filed the second application under section 3 of the Act, ibid, has been duly recorded in both the impugned orders. The documents filed by the petitioners with the petition do not include a copy of the earlier application filed by the petitioner under Sections 3 and 4 of the Act, ibid. The learned counsel for the respondents, whilst questioning the maintainability of the petition on account of not being properly documented, has provided a copy of the said application during the course of arguments, which copy is placed on the record. It appears from a perusal thereof and from the copies of the order sheets of the learned trial court that the compromise dated 20-10-2005 was effected between the parties as a consequence of the earlier application of the petitioner filed under Sections 3 and 4 of the Act, ibid. The question of estoppel does arise in the case and the learned counsel for the petitioner has been unable to satisfy me on this score. He has also been unable to show or point out any illegality or material irregularity in the impugned orders. Even otherwise, there is a concurrent finding of facts against the petitioner. Moreover, as submitted by the learned counsel for the respondents the petitioner's second application appears to be merely a dilatory tactic. As to the petitioner's contention that no notice was given to him by the learned trial court about the application of respondent No,4 for enlargement of time, the learned counsel for the petitioner has been unable to dispel the stand of the learned counsel for the respondents that this question was examined and decided against the petitioner in the earlier round of litigation. Indeed, the learned counsel for the petitioner did not have any answer in this respect. The authority cited by the learned counsel for the petitioner is not attracted to the case.
6. Another point worth noting is that in the second application under Section 3 of the Act, ibid, moved by the petitioner, para 5 whereof refers, the petitioner has tried to take the stand that after the death of respondent No,5 the property in question is divisible only between the petitioner and respondent No,4 giving the impression that he wants to deny the benefit of the property in question. To respondents Nos. 1 to 3 and 5. Upon being confronted with this aspect the learned counsel for the petitioner has no reply.
7. Under the circumstances I do not find any illegality or material irregularity having been committed by the learned courts below whilst passing the impugned orders dated 6-6-2007 and 5-11-2007. In view thereof, and the fact that the petitioner appears to be merely delaying the inevitable, I do not find any force in this petition. It is accordingly dismissed, with no order as to costs.