AMIN-UD-DIN KHAN, J.---Through this civil revision petitioner who filed objections under Order XXI Rule 89 of the CPC has challenged the judgment dated 02.08.2017 passed by the learned Additional District Judge, Kasur whereby appeal filed by the petitioner was dismissed and the order dated 19.4.2017 whereby the objections filed by the petitioner were dismissed.
2. Brief facts of the case are that a family decree dated 31.7.2003 was under execution and the property of the Judgment Debtor was attached vide order dated 9.7.2007 and the attachment report was provided by the Tehsildar in the Court on 22.3.2008. In execution of the decree the property was auctioned on 12.4.2017 which was confirmed by the Court on 19.4.2017. On 18.4.2017 the objector filed objection petition regarding subject matter of this Civil Revision.
3. Learned counsel for the petitioner argues that petitioner and another person (Muhammad Ilyas) were having an agreement to sell dated 2.1.2009 in their favour by the judgment debtor. They filed a suit for specific performance on 26.1.2010 which was conditionally decreed on 10.5.2011 as the property subject matter of their suit was attached by the learned Executing Court in execution of decree subject matter of this revision as well as the property was mortgaged with the Punjab Provincial Co-operative Bank for an amount of Rs.1,50,000/-. Learned counsel states that both the learned courts below while dismissing the objection petition and the appeal have not considered the merits of Order XXI, Rule 89 of the C.P.C. and both the learned courts below dismissed the same while considering and keeping in mind the previous history of the objections filed by the petitioner, which, were dismissed. States that at the time of entertaining the instant revision petition, this Court ordered for deposit of Rs.7,66,260/- along with 5% of the amount of sale of property i.e. Rs.18,65,000/- the total amount comes Rs.8,59,510/- and surety bond was also furnished with the learned Executing Court, therefore, prays for acceptance of this civil revision.
4. On the other hand, learned counsel for the respondent Muhammad Yousaf the auction purchaser has stated that both the learned courts below have rightly considered the previous history of the case as the instant objection was filed with the connivance of the judgment debtor as the execution was being delayed since the year 2003 on one pretext or the other and the instant civil revision as well as objection petition and the appeal were void ab-initio and frivolous one as the petitioner claims to have an agreement to sell in his favour dated 2.1.2009, certainly after the attachment of the property by the learned Executing Court, creates no right in his favour and further that the conditional decree dated 10.5.2011 was never got executed and further that the objection petition is hit by Order XXI, Rule 64 of the C.P.C. moreover the objector was bound under Order XXI, Rule 89 of the C.P.C. to deposit the amount before filing of the objection petition as no court's order was required for deposit of the amount or at least within 30 days from the date of the auction he was bound to deposit the auction amount plus 5%. States that the amount was never offered by the petitioner voluntarily though he has deposited the amount under the orders of this Court when the injunctive ,order was granted to him which is long after the prescribed period of 30 days from the date of auction, therefore, is not beneficial for the petitioner.
5. Learned counsel for respondent No. 3/Judgment Debtor now does not support the revision petitioner.
6. I have heard learned counsel for the, parties at length and gone through the record.
7. I am clear in my mind that for filing an objection petition under Order XXI, Rule 89 of the C.P.C. the objector was required to deposit 5% of the purchase money for payment to the auction purchaser and also must have deposited the amount mentioned in the, proclamation of sale. For deposit of amount no formal order of the Court or permission is required. The offer of deposit must be unconditional. My view is further fortified by the judgment of the august Supreme Court of Pakistan reported as "Mst. Anwar Sultana through L.Rs. v. Bank Al-Falah Ltd. and others" (2014 SCMR 1222). If the amount is not deposited the objections are not competent in the light of "Messrs Abdur Razzaq and Company, through Mian Abrar Ahmed v. Bank of Punjab and others" (2005 CLD 1170). The objections were filed under Order XXI, Rule 89 of the C.P.C. but without fulfilling requisite compliance of the provisions it could be considered as if no such application had been preferred. Reliance can be placed on "Mst, Noor Khatoon and others v. Messrs Habib Bank Ltd and another" (2013 CLC 702).
If this Rule of deposit is relaxed even then it cannot be extended beyond 30 days as Article 166 of the Limitation Act, 1908 provides period of 30 days and B further agreement to sell does not create or confer right or title in the suit property except gives a right to file a suit for specific performance and in my view a decree for specific performance also does not create or confer a right except declares the maturity of right for specific performance and the title of the property is transferred or vests in the decree-holder through a conveyance deed in execution of decree. Reliance can be placed on "Messrs Stiletto (Pvt.) Ltd. through Director and 6 others v. Banking Court No. II, Gujranwala, camp at Sialkot and 5 others" (2004 CLD 1126), "Kashif Imran and another v. Altaf Hussain and another" (PLD 2018 Lahore 60), "Industrial Development Bank of Pakistan v. Messrs French Food Products (Pvt.) Ltd. and others" (2009 CLD 93), "Muhammad Sadiq v. Dr. Sabira Sultana"
(2002 SCMR 1950) and "Kuwait Flour Mills Co. SAK v. m. v. Kashmir and others" (1990 SCMR 2196). The agreement to sell seems to be for avoidance of execution of decree by the husband in favour of present petitioner and another. In this regard judgment reported as "Saima Perveen and 2 others v.
Naeem Ahmad Nasir and 3 others" (2015 CLC 667) can be relied.
8. In these circumstances, it is proved that when the attachment was in the knowledge of the petitioner even before entering into agreement to sell and thereafter at the time of alleged judgment and decree procured by him in suit for specific performance in the year 2011 and he previously had also filed objection petitions in the execution of the decree of family court and that was being used by the judgment debtor as a tool to prolong the execution of the family decree as the family court has noted that more than 15 time schedule for sale was rescheduled due to filing of miscellaneous applications on different grounds. Para No. 3 of the application is reproduced:-- It shows that the contents of the application are not in accordance with Order XXI Rule 89 of the C.P.C. as it is a condition precedent that the objector will withdraw any objection which are with regard to irregularity of the sale in the light of Order XXI Rule 90 of the C.P.C. prior to filing the objection under Order XXI Rule 89 of the C.P.C..
9. In these circumstances, no case for interference while exercising jurisdiction under section 115 of the C.P.C. is made out. I have further noticed that frivolous objections were raised and the petitioner has not only delayed the process of execution and dragged the decree-holder as well as the auction purchaser in the litigation up to this Court, therefore, this civil revision is dismissed with a cost of Rs.1,00,000/- (Rupees one hundred thousand only). This amount will be distributed equally between the decree-holder as well as the auction purchaser. The amount will be paid from the amount already deposited by the revision petitioner with the learned executing court under the orders passed by this Court dated 10.10.2017 and the remaining amount deposited by the petitioner will be refunded to him on his application.