' M. SOHAIL IQBAL BHATTI, J. --- Through this revision petition, the petitioner has sought the indulgence of this Court for setting aside the judgment dated 8.5.2012 passed by the learned Additional District Judge, Rawalpindi, Camp at Kahuta.
2. The facts of the case are that Khan Akbar/respondent No, 2 filed a suit for specific performance against one Raja Ghulam Muhammad (the predecessor of respondent No, 1) and consequently ex parte judgment and, decree dated 7.6.1999 was passed in favour of respondent No, 2 for recovery of Rs, 50,500/- alongwith costs. Respondent No, 2 filed an execution petition upon which the disputed property was attached and sold through public auction to the petitioner. The executing Court confirmed the sale on 17.1.2005. Respondent No, 1 filed an application before the executing Court dated 17.1.2005 and also filed an application for setting aside the judgment and decree dated 6.7.1999. The application filed by respondent No, 1 was dismissed by the executing Court. An appeal was filed against the order passed by the executing Court which was accepted on 20.4.2006 and the case was remanded back to the executing Court for deciding the application filed by respondent No, 1 afresh.
3. During the pendency of the proceedings before the learned executing Court, the respondent No_ 1 moved an application under Order 21, rule 89, C.P.C. For deposit of the decretal amount alongwith 5% of the decretal amount which was allowed by the executing Court on 2.7.2011 and thereafter the application filed by respondent No, 1 under Order 21, rules 89 and 90, C.P.C. Was dismissed through order dated 19.7.2011. Respondent No, 1 filed an appeal against the order passed by the learned executing Court which was accepted by the impugned judgment dated 8.5.2012, hence, this revision petition.
4. Learned counsel for the petitioner argued that the judgment of the learned Additional District Judge is not based on sound reasons and is, therefore, liable to be set aside. It has been further argued that the Appellate Court has passed its findings on surmises and conjectures.
5. I have considered the arguments advanced by learned counsel for the petitioner and have also gone through the record.
6. It is established from the record that actual judgment-debtor i,e, Raja Ghulam Muhammad, during the pendency of the execution proceedings, had expired and an amended execution petition impleading the legal heirs of the judgment-debtor namely Raja Ghulam Muhammad was filed on 18.3.2003, but there is nothing on record to establish that notice had ever been issued by the executing Court to the legal heirs of the deceased judgment-debtor (Raja Ghulam Muhammad). The provisions of Order 21, rule 66, C.P.C. Are reproduced below:--- "66. Proclamation of sales by public auction.-- (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment- debtor and shall state the time and place of sale, and specify as fairly and accurately as possible:- --
(a) the property to be sold;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable,
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or' power relating thereto." {{BLUR PAGE}}
7. Under Order 21, rule 66, C.P.C., it was the duty of the Court to make proclamation of sale in language of the Court, where the property' is to be sold by public auction Such proclamation has to be drawn after notice to the judgment-debtor. Further the proclamation should include everything considered as material by the Court, to enable the purchaser to know the nature and value of the property. According to-Order-21, rule 67 read with rule 54(2), C.P.C., such proclamation has to be- made by the beat of the drum and a copy thereof has to be affixed on the property as Well as the Court-house. Under Order 21, rule 68, C.P.C. There should be an interval of thirty days between the date of the sale and the date of the proclamation. Non-publication of the the same proclaination by beat of "the drum, has caused a seriousinfury to the legal heirs Of the judgment-debtor.
8 Similarly, the purpose Of -fixing the reserve price under the proclamation is that the Court safeguards the rights of the judgment-debtor and the bid. Starts from that figure. Sikh price had ' to be fixed 'after objective consideration' of the relevant material which the Court could probure by holding. a' summary inquiry, and summoning, and examining- any person possessed of necessary information -as provided by, Clause (4): of Order 21, rule 66, G.P.C. In the present-case:110 such compliance has been made by the executing Court with the mandatory provisions of law and -any sale conducted in viblationto the mandatory Previsions of C.P.C. snOtild be regarded a
9. : I have noticed that-the property meataring. 16 kanals, 13 marlas was purchased by the petitioner for an amount of Rs, 1,05;,000/-. However, Respondent No, 1, through `order dated 20.4 2006; Was. Followed by the Appellate- Court to deposit the decretal amount alongwith 5% of the purchase money. The respondent No 1, pursuant to the order dated 20 4 2puo.. Filed an application with the executing, COurtiwhich 8;`1/.1$ by. The executing Court on 2.7;2011 This ordr._ hau',never been .01-ialienged by the petitioners and had attained ..Finality and thus it would be presumed that complianue had been made with the provisions of Ordei 21, P.0 - 10. . I cannot hold myself back from observing-that the object of Civil Procedure Code .Was to Promote interest of justice and to provide remedy to avoid injustice. It has been held by the Honourable Supreme Court of Pakistan in (.1..R Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others (PLD 1987 SC 512) that it was alWays the duty of the Court to fix the price of the property to be auctioned because the Court is the custodian of the rights of the decree-holder as well as of the judgment-debtor and a duty was cast upon the executing Court before confirmation of the sale to satisfy itself that the property has not been sold at an inadequate price. {{BLUR PAGES}}
11. It is not out of place to mention here that the executing Court did not comply with the mandatory provisions of Order 21, rule 66, C.P.C. And, therefore, the entire superstructure of sale and issuance of sale certificate must be dashed to ground. Reliance in this regard is placed on Yousaf Ali v.
Muhammad Aslam Zia and 2 others (PLD 1958 SC 104).
12. The basic concept behind Order 21, rule 89, C.P.C. Is to provide an opportunity to the judgment- debtor which is the only means of avoiding a sale after it has been carried out; the provisions of this rule afford the last chance ,to, the judgment-debtor after auction has taken place to get the sale set aside on, the payment of decretal amount. The learned ,Additional District Judge has passed a beneficial order in favour of the petitioner while allowing mark up at the rate of 7% per annum from the date of deposit of the purchase money till 8.5.2012 alongwith 5% of the purchase, price as provided under Order 21, rule 89, C.P.C.
13. Before parting .With this order, I must observe that the impugned judgment was passed on 8.5.2012. The petitioner applied for the copy of the impugned judgment on 18.5.2012 which was prepared on 19.5.2012 and the copy was delivered to the petitioner on 21.5.2012, but the present petition was filed on 23.10.2012. Therefore, the 'revision petition was barred by 75 days. The petitioner after removing objection has filed an application for condonation of delay. The only reason for delay mentioned in the application is that the petitioner was suffering from typhoid and therefore, the petitioner was not able to inform the counsel about the impugned judgment passed by the learned Additional District Judge. I am afraid that this is not a sufficient reason for condonation of delay. It is an established law that delay of each and every day has to be explained as on account of limitation certain valuable rights accrue in favour of the other party. Hence, this revision petition is also barred by time
14. For what has been discussed above, I do not find any jurisdictional error or material irregularity in the impugned judgment. Resultantly, this revision petition is dismissed in limine. Civil revision .