' RAUF AHMED SHEIKH, J.---The petitioner has assailed the vires of order dated 27-4-2013 passed by the learned Additional District Judge, Gujranwala, whereby his petition to stay the execution proceedings was disallowed and has prayed that the execution proceedings pending before the learned executing court be stayed.
2. The facts, in brief, as emerge on perusal of the record are that the respondent filed a suit for recovery of Rs,40,00,000 under Order XXXVII, C.P.C. This suit was decreed ex parte on 8-12-2010. The petitioner moved an application for setting aside of the ex parte judgment and decree under Order IX, Rule, 13 read with section 12(2), C.P.C. This petition was dismissed by the learned trial court vide order dated 21-5-2011 due to non-appearance of the petitioner in the court. The appeal filed by the petitioner against the impugned order of the learned trial court was dismissed by this Court. The petitioner then filed Civil Petition No,260-L of 2013 before the august Supreme Court of Pakistan in which the leave has been granted vide order dated 6-3-2013. Thereafter the petitioner moved an application under Order XXI, Rule 26, read with Order XLI, Rule 2, C.P.C. Before the learned trial court making a prayer that the execution proceedings be stayed, which was dismissed through impugned order dated 27-4-2013.
3. Learned counsel for the petitioner has contended that the learned trial court erred in dismissing the application as it had ample powers under Order XXI, Rule 29, C.P.C. To stay the proceedings; that by dismissal of the petition, the fundamental right of fair trial as guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, has been violated; that the reserve price fixed by the court auctioneer is on extreme lower side; that the petitioner has filed a suit whereby the genuineness of his signatures on the disputed cheque have been called in question and as such the proceedings could have been stayed under Order XXI, Rule 29, C.P.C. And that if the auction is held during the pendency of the above mentioned civil suit, the sale would be void and ineffective qua the rights of the petitioner under section 52 of the Transfer of Property Act, 1882 and that by granting the leave the august Supreme Court of Pakistan has reopened the questions pertaining to the petition under Order XXI, Rule 26 and Order XLI, Rule 5, C.P.C.
4. It is clear from the orders passed by the august Supreme Court of Pakistan that the ad interim injunction was not granted so due to pendency of Civil Petition No,260-L of 2013 only, the executing court could have not taken off its hands and was supposed to proceed further in accordance with law. No doubt the leave to appeal has been granted by the august Supreme Court of Pakistan but the fact of the matter is that order dated 21-5-2011 dismissing the petition under Order IX, Rule 13, read with section 12(2), C.P.C. As was upheld by this Court still holds the field. The mere filing of the suit challenging the genuineness of the signatures on the cheque was also no ground to stay the proceedings in view of the dismissal of the application under Order IX, Rule 13 read with section 12(2), C.P.C. By the learned ADJ vide order dated 21-5-2011. The other contention of the learned counsel for the petitioner i,e, the auction, if held, would be of no consequence as the sale would be hit by the provisions of section 52 of the Transfer of Property Act, 1882, is also without force being misconceived. The property being put to auction does not form subject matter of the suit filed by the petitioner. The impugned order, therefore, does not infringe the fundamental right of fair trial as guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. The other contention that the reserve price is too low is also not sufficient to stay the execution proceedings.
After designation of the court auctioneer and issuance of the complete schedule through proclamation of the sale by public auction under Order XXI, Rule 66, C.P.C., the proceedings cannot be stayed on the ground that the reserve price as shown in the proclamation is insufficient because it is always the estimated price. If any irregularity or fraud is committed in this regard, the same may be assailed through application under Order XXI, Rule 90, C.P.C. And if it is so established, the executing court may set aside the same by exercising the jurisdiction vested in it under the aforementioned provisions.
5. For the reasons supra, the civil revision is without merits and the same is accordingly dismissed in limine.