AZIZ-UR-REHMAN, J. By means of this 'common judgment', we propose to decide [i] Constitutional Petition No. D-324 of 2017 [Ahmed Asif Siddiqui and others v. laird ADJ East, at Karachi and 9 others] and [ii] Constitutional Petition No. D-323 of 2017 [Mazhar Javed v. Shahzad Rahim and 13 others], filed by the petitioners herein, who upon feeling 'aggrieved' and 'dissatisfied' with the common 'impugned order' dated 09.01.2017 [Annexure 'A' to MOPs], passed by learned Additional District Judge-III, Karachi-East in Civil Revision No.142 of 2016 [Shahzad Rahim son of Muhammad Rahim v. Ahmed Asif Siddiqui and 12 others], filed by the 'Auction Purchaser', whereby , Order dated 26.11.2016 [Annexure 'H' to MoP in CP No.D-324 of 2017 ], passed by IXth Senior Civil Judge, Karachi-East, in Execution No.20 of 2016 [Muhammad Asif Siddiqui and others v.
Mst. lqbal Begum and others] , for holding 'fresh auction' through Nazir was 'set-aside' and consequently , Nazir of District and Sessions Court, Karachi-East, was directed to complete the sale proceedings in favour of the 'Auction Purchaser' viz. Shahzad Rahim son of Muhammad Rahim [Respondents Nos. 2 and 1 respectively in the above CPs], have approached this Court With a 'common prayer' for setting aside the ' impugn ed order' dated 09.01.2017 [Annexure 'A' to MoPs'], 'inter alia' on the ground that the same besides, being erroneous, suffering from material irregularity and illegality has been passed without proper application of judicial mind and appreciation of law. The 'prayers' sought in the Memo of Petitions [In short MoPs] of C.P No. D-324 of 2017 and C.P No. D-323 of 2017 , respectively read as follows: A. a). That the order dated 09.01.2017 passed by IIIrd Additional District Judge East in civil revision No.142/2016 be set-aside and the order dated 26.11.2016 passed by the IX Senior Civil Judg e east in Execution No.20/2016 may kindly be upheld. b) Cost of the proceedings. c) Any other relief which this Hon 'able court may deem fit and proper in the circumstances.
B. a) To call for the R&Ps. of Execution Application No.20/2016, Civil Suit No.1383/2012 (Ahmed Asif Siddiqui and others v. Mst. lqbal Begum and others ) from the Court of IXth. Senior Civil Judge, Karachi-East and after perusal of the same and hear the parties, may graciously be pleased to allow this petition and set aside the impugned order dated 09.01.2017 and to upheld the order of the trial Court i.e. learned IXth. Senior Civil Judge, Karachi-East dated 26.11.2016 and to direct the Nazir to initiate further proceedings in accordance to the order dated 26.1 1.2016. b) To say the proceedings till decision of this petition. c) Any other further relief/reliefs which this Hon'ble Court may deem fit and proper under the circumstances of the case.
2. The facts giving rise to the filing of insta nt petitions are that Petitioners Nos.1 to 5 in C.P. No.D-324 of 2017 , filed a Civil Suit No.1383 of 2012 [Ahmed Asif Siddiqui and others v. Mst. lqbal Begum and others ) inter alia for partition of an immoveable property viz. House bearing No.A-310/3, Block-3 Gulshan-e-Iqbal Karachi, measuring 240 sq.yds having Ground + One Storey construction [hereinafter referred to is the 'subject property], before the Court of IXth Senior Civil Judge, Karachi-East. The said civil suit was decreed on 'merits' vide Judgment and Decree both dated 23.02.2016, passed by the learned IXth Sr. Civil Judge, Karachi-East, as prayed, however , with no order as to cost.
3. The aforesaid Petitioners Nos.1 to 5, [Plaintif fs-D/Hs], thereafter , filed an Execution Application No.20/2016 [Ahmed Asif Siddiqui and others v. Mst. Iqbal Begum and 7 others ), arising out of Civil Suit No.1383 of 2012, for enforcement of the judgment and decree both dated 23.02.2016. The said Execution Application was allowed vide order dated 29.7.2016, passed by Executing Court i.e. learned IXth Sr. Civil Judge, Karachi [East]. For ready reference and convenience purpose Order dated 29th July , 2016, is reproduced herein below:- By this order I intend to dispose of the execution application filed by the decree holders against the judgment debtors for satisfaction of the decree.
The learned counsel for the decree holder argued that the judgment debtors has failed to satisfy the decree, hence this execution application. He further argued that the judgment debtors are lingering on the matter and intentionally avoiding to satisfy the decree. He prayed to allow the execution application. On the other hand neither JDs appeared in this case nor filed objections.
Heard the learned counsel for the decree holders and perused the record. The Suit No.1383 of 2012 was decreed vide judgment and decree dated 23.02.2 016 in favour of the plaintiff/decree holder . The judgment debtors cannot absolve his liability to satisfy the decree. There is neither any stay in operation nor is there anything on record to disallow the execution application, hence this execution application is allowed . [Underlining is ours].
4. It appears that during the pendency of the execution proceedings, on 04.08.2016 , Nazir of District and Sessions Court Karachi-East, was directed to inspect the 'subject property' i.e. House No.A-310, Block No.3, Gulshan-e- Iqbal, Karachi, measuring 240 sq.yds having Ground + One Storey construction and see and report as to whether the 'subject property' is divisible / partitionable or the position remains otherwise. On inspection of the 'subject property' Nazir , thereafter , did submit his report dated 18.08 2016 , which reads as follows:- NAZIR REPORT "It is respectfully submitted that in compliance of order dated 04.08.2016, the undersigned issued notice(s) to the parties for 16.08.2016 to inspect the suit property i.e. A-310, Block 03, Gulshan-e-lqbal, Karachi, whether the suit property is partitionable or not.
The undersigned reached at suit property i.e. A-310, Block 03, Gulshan-e-lqbal, Karachi on 16.08.2016 where plaintiff No.] and his counsel namely M. Khalid were present but none of the defendant(s) was available nor his counsel was present. The suit property was in possession of tenant(s).
The undersigned visited the suit property which was about 240 Sq. Yds and Ground Plus one storied RCC old constructed bungalow each floor consisted 5 rooms 1 kitchen and one common.
The undersigned go through the title which shows that there are 13 L. R in the matter . It is important to mention here that the advocate for Decree-holder also submitted statement at the suit property stating therein that: "the suit property is 240 Sq. Yards constructed Ground + one storey . The possession of property is with the decree holder since there are 13 share holder/legal heirs in respect of suit property . Therefore the partition of suit property is not suitable and the same may kindly be auctioned and sale proceed be distributed according to the respective shares." [Underlining is ours].
Under the above circumstances the suit property in the present position is not partitionable."
Report is submitted for further direction. SD/- 18/8/16 NAZIR District and Sessions Court Karachi East Attached:
1. Statement filed by the Advocate for the Decree-Holder .
2. Notice along with Bailiff report.
3. TCS Receipt.
5. From the record, it reflects that the Plaintif fs'/Decree-Holders' [Petitioners Nos.1 to 5 in C. P. No. 324 of 2017 ] filed an Application \ under section 151, C.P.C., in the said Execution Application No. 20 of 2016, with a prayer that 'subject property' be auctioned in view of Nazir's Report dated 18.08.2016. On the said application under section 151 C.P.C., filed by Decree Holders in Execution No.20 of 2016 [Annexure "F" to the MoP in C.P. No.324 of 2017 ], on 02.09.2016 , the following order was passed: 'Let the Execution be sent to Nazir for Auction Proceedings'
6. The Nazir of District and Sessions Court, Karachi-East, thereafter , initiated/st arted 'auction proceedings' and resultantly , 'proclamation of sale' dated 17.6.2016, was published in daily 'JANG ' dated 19.9.2016, in respect of 'subject property'. Per record, on 24.10.2016 , at about 2:00 pm the 'auction proceedings' were carried out. In the auction proceedings held on 24.10.2016, Petitioner No.1 [Ahmed Asif Siddiqui son of late Muhammad Asif Jah Siddiqui ] and Respondent No.2 [Shahzad Rahim son of Muhammad Rahim-Auction Purchaser ], amongst others did participate in the auction proceedings and Respondent No.2 [in CP No.D-324 of 2017 and in CP No.D-323 of 2017 respectively] since, stood the highest bidder in the sum of Rs.13,900,000 /-, as per 'terms' and 'condition' of 'sale proclamation' also deposited 25% of the bid money i.e. Rs.3,475,000 /- with the Nazir of District and Sessions Court, Karachi-East. According to the Petitioners' version, during the auction proce edings, counsel for respondents Nos.3 to 10 [who are J/Ds and legal heirs of the original deceased owner viz. Mst. Zab-un-Nissa], was not only in attendance but had also shown his willingness and readiness on behalf of Respondents Nos.3 to 10 [J.Ds/Defendants in No.1383 of 2012], to purchase the 'subject property', above the bid amount of Rs.1,39,00,000/- i.e. at Rs.1,48,00,000 /- [Rupees One Crore Forty Eight Lac only] but the Nazir , as alleged in Memo of Petition did not mention such offer of Rs.1,48,00,000 /- in his 'Auction Report' dated 25.10.2016. The 'Auction Report' dated 25.10.2016, submitted by Nazir of District and Sessions Court, Karachi-East, as being relevant is also reproduced here-in-below:- In pursuance of proclamation of sale published in daily 'JANG' in its issue dated 19.09.2016, the movable property as mentioned in publication were put for auction in the office of the undersigned on 24.10.2016 at about 2:00 p.m.
At about 2:00 p.m. 1 read out and explained the terms and conditions of the sale / auction to the person, who were present during the auction proceeding and offered his bid as under: SR.
No. NAME OF BIDDER AMOUNT
1. Shahzad Raheem Rs.
1,39,00,000/
2. Saeed ur Rehman Rs.
1,26,50,000/
3. Ahmed Asif Siddiqui Rs.1,23,00,000/
4. Khurram Shahzad Rs.1,12,00,000/
5. Wahab Akhter SiddiquiRs.1,11,00,000/ Accordingly , Shahzad Raheem son of Muhammad Raheem, resident of House No.436, Mohallah Baran Goth, Masquat Road, Garden East, Karachi, holding CNIC No.42201- 5683747-3, whose bid for Rs.1,39,00,000/- along with 10% withholding tax and he is declar ed to be the highest bidder but subject to confirmation by the Honourable Court as provided under the Rules.
It is important to mention here that Mr. Muhammad Zahid Kabeer Advocate appeared and filed Vakalatnama on behalf of attorney of J.D and he submitted statement in which he has offered bid for Rs.1,38,00,000/ but bidder Shehzad Raheem has offered his highest bid i.e Rs.1,39,00,000/-.
As per terms and conditions of the sale / auction the purchaser of the subject property deposited 25% of the bid money viz Rs.34,75,000/- through Cheque No.43019402, dated 24.10.2016 of Rs. 34,75,000/-, Habib Bank Limited, High Court Branch, Karachi ( subject to realize ).
The report alongwith bidding papers and photocopies of CNIC's of the bidder are submitted herewith for kind perusal and orders. " [Underlining is ours).
7. Later-on, when, the matter came-up before the Court on 31.10.2016, for perusal and order on the above Nazir's Report then, apart from the legal heirs of deceased Mst. Zaib-un-Nisa [Judgment-debtors], the other set of legal heirs of deceased Muhammad Asif Jah Siddiqui [Decree Holders] not only shown their readiness to match the bid of 'Auction Purchaser', but, as averred, in Memo of Petition of CP No. D-324 of 2017 had shown their intention to purchase the shares of all other legal heirs [i.e. J/Ds-Respondents Nos.3 to 9 herein]. In this regard, the Petitioners [D/Holders], it appears had also filed a statement [Annexure 'F' to MoP in C.P. No.D-324 of 2017] , wherein, the Decree Holders [Petitioners in C.P. No. D-324 of 2017] had expressed their readiness/willingness to purchase the shares of other legal heirs , by matching the highest bid. Likewise, the Respondent No.4 in C.P. No.D-324 of 2017 viz. Mazhar Javed son of Khursheed Ahmed Shah [Petitioner in C.P. No.D-32 3 of 2017], had also filed an application under section 151, C.P.C. whereby , he also raised his offer in respect of the 'subject property' to Rs.17,000,000 /-.[Rupees Seventeen Million only]. This fact is also evident from Order dated 26.11.2016, passed by the learned Executing Court for holding 'fresh auction' of the 'subject property' through Nazir of District and Sessions Court, Karachi-East. The statement filed by the Decree Holders in Execution No,20 of 2016, reads as follows:- STATEMENT It is respectfully submitted on behalf of the decree Holders above named that the decree Holder is ready able and willing to match the Highest bid offered in auction and ready to deposit the share of the Judgment Debtors in Court.
It is further submitted that the decree Holders are co-sharers of the property and in terms of Order XXI, Rule 88, C.P.C., his offer may kindly be given preference.
8. Needless to say, the 'subject property' was originally belonged to Mst. Zaib-un-Nisa and on her death Muhammad Asif Jah Siddiqui son of Late Muhammad Asif Jah Siddiqui, inherited his proportionate share in the 'subject property'. Subsequently , on the death of Muhammad Asif Jah Siddiqui, the Petitioners in C.P. No.324 of 2017 [Decree Holders], inherited their proportionate share of deceased Muhamm ad Asif Jah Siddiqui. In view of this position, the Petitioners, as urged, had got vested right in the 'subject property' to the extent of their proportionate shares. The Petitioners, as seen, had also offered and shown their readiness to match the highest bid of the 'Auction Purchaser' and also to deposit the shares of other legal heirs (J/Ds-Respondents Nos.3 to 10 in CP No.D-324 of 2017]. According to Petitioners' versions, it is a settled principle of law that in a matter of inheritance , as the case in hand is, the offer of the legal heirs ought to be given a preference over the offer of 3rd party but, this, indeed, would be subject to the ability of legal heirs to match the highest bid. The legal heirs i.e. Decree-holders and Judgment-debtors before the Executing Court did not extend their consent in favour of the 'Auction Purchaser' rather they themselves had shown their intention to purchase the 'subject property' for higher amount than the of fered amount of the 'Auction Purchaser'.
9. The Executing Court upon consideratio n of the facts and willingness of the legal heirs i.e. Decree-holders and Judgment-debtors to purchase the 'subject property', nevertheless, formed a view that the 'subject property' i.e. House No.A-310, Block No.3, Gulshan-e-Iqbal, Karachi, measuring 240 sq.yds having Ground + One Storey construction, under the prevailing circumstances, can fetch more price than, the highest offer of Rs.1,39,00,000 /-, given by the 'auction purchaser' viz. Shehzad Rahim son of Muhammad Rahim [Respondent No.2 in CP No.D-324 of 2017 and Respondent No.) in CP No.D-323 of 2017 ]. The Executing Court, it appears, was well aware of the current Market Value of the 'subject property' and its' location, while passing order dated 26.11.2016 [Annexure 'H' to MoP of CP No.D-324 of 2017] whereby , not only the offer of the Auction Purchaser was rejected but the Nazir of District and Sessions Court, was directed to hold 'fresh auction'/'sale' of the 'subject property', but, without disturbing the right of participation of the parties and 'Auction Purchaser' in the 'fresh auction proceedings' to be held by the Nazir of District and Sessions Court, Karachi-East.
10. The 'auction purchaser' namely Shahzad Rahim s/o Muhammad Rahim, nevertheless, somehow , feeling himself 'aggrieved' and 'dis-satisfied' with order dated 26.11.2016 , passed by the Executing Court i.e. learned IXth Senior civil Judge, Karachi-East, for holding 'fresh auction'/`sale' of the subject property', in his own wisdom, opted to file a Civil Revision No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and others ], before the Court of Additional District Judge-III, Karachi-East, with prayers as follows:- "It is, therefore, prayed by Applicants that this Honourable Court may graciously be pleased to call for the R&Ps of the Execution Application No.20/2016, (Civil Suit No.1383/2012) Ahmed Asif Siddiqui and others v. Mst. Iqbal Begum and others , from the Court of IXth Senior . Civil Judge, Karachi East and after perusal of the same and hearing the parties may graciously be pleased to allow the Revision Application and set aside the Order dated 26- 11-2016, and confirm the highest bid of the Applicant in respect of suit property and direct the Nazir of District and Sessions Courts, Karachi East to initiate further proceeding respect to auction acco rdingly . [Underlining is ours] Any other or further relief/relives which this Honourable Court may deem fit, and proper under the circumstances of the case."
11. The aforesaid Civil Revision Application No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddique and 13 others ], when came-up on 09.01.2017, before the Court of learned Additional District Judge-III, Karachi-East, then, Order 16.11.2016 [Annexure 'H' of MoP in CP No.D-324 of 2017], passed by the Executing Court for holding a 'fresh auction'/ 'sale' of the 'subject property' having 'impugned in the Civil Revision Application [In short CRA], by the Auction Purchaser was set-aside. The 'relevant portion' of the order dated 09.01.2017 , impugned herein, [Annexure 'A' to MoPs], reads as follows: "...Perusal of record shows that respondents Nos. 1 to 5 filed Civil Suit No.1383/2012 for partition against respondents Nos.6 to 13. Said suit was decreed. Since suit property was not auctionable as per Nazir report dated 18.08.2016, learned counsel for the respondents Nos.1 to 5/decree holders filed application for sale of suit property through auction. Such application was allowed and auction proceedings were held on 24.10.2016 and Nazir submitted his report before the learned executing Judge on 25.10.2016. Perusal of Nazir report shows that 5 participants including the respondents put their appearance in auction proceedings. Auction purchaser succeeded by offering highest bid for an amount of Rs.1,39,00,000/-. It is a general principle that auction proceedings gets finalized on fall of hammer and the matter is formally referred to the executin g Court for acceptance unless something against the law has been pointed out. Main contention of the respondents who are legal heirs and co- sharer is that highest bid amount is much less than the market value of the subje ct property , therefore, they have shown their willingness to purchase subject property . Respondents Nos.6 to 13 have offered to pay Rs.1,48,00,000/ (10% more than the amount Rs.1,38,00,000/- offered at the time of auction proceedings).
Subsequently they offered amount Rs.1,70,00,000/- . Besides that respondents Nos.6 to 13 also moved application to allow them to purchase the suit propert y at the highest bid. Learned executing Judge rejected Nazir report for the reasons that suit property can fetch more price than as has been given in the bid. Such observation was based on the basis of contention of respondents that the amount offered by the auction purchase is much less than the market value of the subject property . It is an admitted position that all the respondents have participated in the auction proceedings and in case they were of the view that the bidder has offered less amount than the market value, they could have make their own offer on the basis of market value of the suit property . No such objection was raised during the auction proceeding s. Besides that none of the respondents filed any objection to the Nazir report. Hence, the plea of respondents seems to be an afterthought version.
Since the auction proceedings have been initiated as per law, I do not find any reason for its rejection, therefore, the order passed by learned executing court is hereby set aside with direction to Nazir to complete the sale proceedings. The revision application is accordingly allowed in above terms. " [Underlining is ours].
12. The Decree Holders and J-D No.2, thus feeling 'aggrieved' and 'dis-satisfied' by the 'impugned order' dated 09.01.2017 [Annexure 'A' to MoPs], passed by learned Additional District Judge-Ill, Karachi-East, have approached this Court by way of filing the instant CP No.D-324 of 2017 and CP No.D-323 of 2017 'inter alia' with a 'common prayer' for setting aside the 'impugned order' dated 09.01.2017 . [Annexure 'A' to M .O.
Ps] .
13. On 19.01.2017, when CP No.D-323 of 2017 [Mazhar Javed v. Shahzad Rahim and 13 others ], filed by J.D.
No.2 viz. Mazhar Javed son of Khursheed Ahmed Sheikh, came-up before the High Court then, while, issuing notice to the Respondents, till the next date of hearing i.e. 02.02.2017, 'Sale Proceedings' in Execution No.20 of 2016 [Ahmed Asif Siddiqui and others v. Mst. label Begum and others ], arising out of Suit No.383 of 2012, was ordered, not to be finalized by the Executing Court. Being relevant order dated 19.01.2017, passed in CP No.D-323 of 2017 , is reproduced here-in-below:- 19.01.2017 Mr. Riaz Ahmed Phulpoto, Advocate for the petitioner .
1. Urgency granted.
2. Exemption is granted subject to all just exceptions.
3 & 4. It is contended inter alia on behalf of the petitioner that he was ready to purchase the subject property at a price higher than etc price at which the same was auctioned by the executing Court ; such request made on his behalf was accepted by the executing Court, but the learned revisional Court has set aside the order passed by the executing Court with the direction to complete the auction at the price lower than the price offered by the petitioner . It is urged that it would have been in the interest of all the parties had the subject property been sold at a higher price as all the parties are co-owners thereof.
Issue notice to the respondents for 02.02.2017. Till the next date of hearing, sale proceedings in Execution No.200/2016 in Civil Suit No.1383/2012 shall not be finalized by the executing Court, namely , IXth Senior Civil Judge, Karachi-East . [Underlining is ours]
14. In another-CP No.D-324 of 2017, filed by the Decree-Holders [Petitioners herein], this Court on 19.01.2017, while, issuing notice to the Respondents for 02.02.2017 , office was directed to club the file of CP No.D-324 of 2017 with C.P.No.324 of 2017. Since, then, both CPs are being fixed in Court together . In both CPs, it is significant to note, despite of service, none of the 'Respondents ' including 'Auction Purchaser' has bothered to file any objections in opposition thereof, as such, the averments' and 'assertions' made in the Memo. of Petitions, have gone un- rebutted/un-challenged.
15. Lastly , on 07.02.2019 , when the above Petitions came-up before us, then, we heard Mr. Muhammad Khalid, learned counsel for the Petitioner in C.P. No.D-324 of 2017, Mr. Riaz Ahmed Phulpoto, learned counsel for Petitioner in CP No.323 of 2017 and Mr. Junaid Alam, learned counsel for Auction Purchaser namely Shahzad Rahim son of Muhammad Rahim as being Respondents Nos.2 and 1 respectively , in C.P. No. 324 of 2017 and C.P.
No.D-323/2017, and with their valuable assistance, also gone through the available record before us.
16. Mr. Muhammad Khalid, learned coun sel for the Petitioners Nos.2 to 4 in CP No.D-324 of 2017 while, arguing the case, forcefully submitted that Order dated 26.11.2016, [Annexure 'H' to MoP in CP No.D-324 of 2017], passed by Executing Court, has wrongly been set-aside by Revisional Court that is to say in excess of its' jurisdiction through the impugned order dated 09.01.2017 [Annexure 'A' to Mo. Ps]. Per learned counsel, the Executing Court while, exercising its' discretion under the facts and circumstances of the case found itself satisfied and rightly observed that the 'subject property' , has the potential, to fetch much higher price than the offer of the 'Auction Purchaser' in the sum of Rs.1,39,00,0001 [Rupees One Crore Thirty Nine Lacs only], if, the same is put to sale/auction afresh. Per learned counsel for the Petitioners in CP No D-324 of 2017, the Executing Court as being a custodian of the rights of the parties/legal heirs, has rightly exercised its' discreti on to direct fresh sale/auction of the 'subject property' through the Nazir of District and Sessions Court, Karachi-East, without disturbing the right of parties and 'Auction Purchaser' to participate in the 'Auction Process' and give bids/highest bid regarding purchase of the 'subject property' i.e. House bearing No.A-310/3, Block-3 Gulshan-e-Iqbal Karachi, measuring 240 sq.yds, having Ground + One Storey construction.
17. Per learned counsel for the Petitioners, Nazir of the District and Sessions Court in conducting the sale/auction [as the case in hand is], had acted, as an agent of the Court and nothing beyond that. Needless to say, Nazir , on conclusion of the 'auction proceedings' on 24.10.2016 at 2.00 p.m. did submit his 'Report of 'Auction' on 25.01.2016, before the Court of IXth Senior Civil Judge, Karachi-East for perusal and orders. Later on, the highest offer of the 'Auction Purchaser' herein, namely Shahzad Rahim son of Muhammad Rahim though was placed before the Executing Court i.e. IXth Senior Civil Judge, Karachi-East, but the same was rejected/not accepted . In such like situation, the question of any concluded contract, as presumed, by the 'Auction Purchaser' [Respondents Nos.1 and 2 in CP No.D-324 of 2017 and CP No.D-323 of 2017, respectively], does not arise. Merely , of submitting / floating a 'highest offer', in no event, does it create any vested / legal right in favour of the 'Auction Purchaser'.
The highest offer of the Auction Purchaser in the sum of Rs.1,39,00,000 /- [Rupees One Crore Thirty Nine Lacs only] in the case in hand, was rightly rejected vide order dated 26.11.2016 , passed by learned Executing Court i.e. IXth Senior Civil Judge, Karachi-East. Being relevant Order dated 26.11.2016 [Annexure 'H' to MoP in CP No.D- 324 of 2017], passed by Executing Court is reproduced herein-below: "Case called. The learned counsel for decree holder , judgment debtor and auction purchaser are present. The decree holder's counsel contended that it is the right of the decree holder to purchase the suit property; therefore, the decree holder is ready and willing to match the highest bid. On the contrary , the learned counsel for the judgment debtor contended that the judgment debtor is ready to purchase the suit property for Rs. I70,00,000/-.
The learned counsel for the auction purchaser stated that he is ready to give/offer more than the amount offered by decree holder and judgment debtor .
As provided under the Civil Procedure Code, one of the conditions of sale is that the highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally qualified to bid, and provided that it shall be in the discretion of the court or officer holding the sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as to make it advisable to do so.
In these circumstances and in the light of offers put forwarded by the parties. I am of the humble view that the suit property can fetch more price than as has been given in the bid. Therefore the earlier auction held by the Nazir is hereby rejected. The Nazir is directed to hold afresh auction as per law and proced ure and the parties are at liberty to participate therein. In case if the auction purchaser is found to be the highest bidder, the amount so deposited b him will be adjusted or otherwise same be returned to him after due verification and identification. [Underlining is ours].
18. Upon rejecting the highest bid of the 'auction purchaser' vide Order dated 26.11.2016, passed by the Executing Court [Annexure 'H' to MoP in CP No.D-3 24 of 2017], fresh 'sale proclamation' was got issued in daily 'JANG' for the purpose of sale / auction of the 'subject property' scheduled to be held on 10.1.2017 at 2:00 pm in the office of Nazir of District and Sessions Court-East. The 'Auction Purchaser'/'Respondent No.2' in CP No.D-324 of 2017, in his own wisdom and without any vested/legal right in his favour, in the meanwhile, however, opted to file a Civil Revision Application bearing No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and others], against the Order of Executing Court dated 26.11.2016, before the District and Sessions Judge at Karachi- East with a prayer for setting aside, the aforesaid Order dated 26.11.2016, passed by Executing Court for sale/re- auction of the 'subject property'. The said Civil Revision bearing No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and others), was later on, transferred to the Court of Additional District Judge-III, Karachi, [East].
The notice of the Revision Application bearing No.142 of 2016, per Mr. Muhammad Khalid, learned counsel for the Petitioners, was served on the Petitioners herein, on 04.01.2017. Per said notice, the aforesaid Civil Revision Application bearing No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and others] was fixed in Court on 05.01.2017. The Petitioners in response to notice did instruct their counsel to give an undertaking regarding filing of his 'Vakalatnama' in the aforesaid Civil Revision Application No.142 of 2016. Per Petitioners'
[Decree Holders'] version, the case upon the undertaking of the Petitioners counsel, for filing 'Vakalatnarna' on 05.01.2017, was adjourned to 21.01.2017.
19. Per averments, made in the Memo. of Petition of CP No.D-324 of 2017, on the very next date i.e. 06.01.2017 , a notice on application for ante-dating the Civil Revision Application from 21.01.2017 to 07.01.2017, was received by the counsel for the Petitioners in his office that is to say, in the late hours of evening. Learned counsel for the Petitioners, nevertheless, did appear in the Court of learned IIIrd Additional District and Sessions Judge-III, Karachi-East [Respondent No.1 in C.P. No.324 of 2017 ], on 07.01.2017 . The Respondent No.1, then, instead of hearing the Application for anti-dating matter from 21.01.2017 to an earlier date, started the hearing Main Revision Application No.142 of 2017 , and thereafter , passed the 'impugned order' of 09.01.2017, as urged, by Mr. Muhammad Khalid, learned counsel for the Petitioners, in extreme haste, though aforesaid Main Revision Application No.142 of 2017, was not deemed/supposed to be fixed for hearing. Per learned counsel, since, the 'Decree-holders' and 'Judgment-debtors' are the legal heirs/co-sharers in the 'subject property', as such, the Revisional Court should have not depri ved/denied the legal right of Decree-ho lders and Judgment-debtors to purchase the 'subject property'. Moreover , accepting of the highest bid of the 'Auction Purchaser' in the sum of Rs.1,39,00,000/- [Rupees One Crore Thirty Nine Lac only], is also without consent of the co-sharers i.e. Decree- holders and Judgment-debtors. The 'impugned order', on this ground as well, is liable to be set-aside. Per learned counsel for the Petitioners, law, even otherwise, safeguards the rights of the co-sharers in the un-divided immovable property which in the case in hand is 'subject property' i.e. House No.A-310, Block No.3, Gulshan-e- Iqbal, Karachi, measuring 240 sq.yds having Ground + One Storey construction.
20. In support of his contention Mr. Muhammad Khalid, learned counsel for the petitioners in C.P. 324 of 2017, placed reliance on the case of Munnalaldanr and another v. Gopilal Nathuram and others [AIR 1940 Nagpur 337].
The relevant portions therefrom, referred to by the learned counsel for the Petitioners in CP No.D-324 of 2017, are reproduced herein-in-below:- "...O.XXI, R. 88, is intended to safeguard the rights of cosharers in undivided immoveable property and they cannot be deprived of that right so lightly .... The executing Court is to act judicially and not arbitrarily , and particularly when the law gives a cosharer a right of pre-emption, it is necessary for the Court to interpret the rule in a manner as will protect that right and not in a manner as will have the effect of depriving cosharers of their right...If the Court comes to the conclusion that the claimant is a co-sharer and that he did offer his bid equal to the amount of the bid offered by the last bidder , it does not stand to reason that the Court should refrain from giving effect to its decision simply on the ground that it purported to sell the entire property . In fact the moment the Court decided that the applicants were co-sharers in the property , the Court also decided that what is sold is only a share in undivided immoveable property , though apparently it purported to sell the entire property , and it is the duty of the Court to adjudicate on the rights of the parties on what it finds..."
21. Mr. Riaz Ahmed Phulpoto, learned counsel for Mr. Mazhar Javed son of Khurshid Ahmed Shah, who is one of Judgment-debtors in Suit No.1383 of 2012 [Ahmed Asif Siddiqui and others v. Mst. lqbal Begum and others ]; out of which Execution No.20 of 2016 , has arisen strenuously urged that the learned Additional District Judge-III, Karachi- East, while, passing the 'impugned order' dated 09.01.2017 [Annexure 'A' to MoPs ], has badly failed to appreciate that in the case in hand the highest bid of the 'auction purchaser' was rejected by the Executing Court, as such, there was no any concluded contact, as presumed, by the Revisional Court. Further , no any right whatsoever , was accrued in favour of Auction Purchaser to assail the same order in Civil Revis ion No.142 of 2016. Since, the highest offer of Auction Purchaser was rejected, as such, the Auction Purchaser cannot claim any vested right in the 'subject property'. The Auction Purcha ser even otherwise had no any 'locus standi' to challenge the bid in the Revision Application. The discretion exercised by Executing Court at the time of rejection of the highest offer of the Auction Purchaser and issuing direction to the Nazir of District and Sessions Court for holding 'fresh auction' of 'sale' of the 'subject property' vide Order dated 26.11.2016, cannot be called in question. Per learned counsel, for the Petitioners herein and Judgment-debtor / Petitioner viz. Mazhar Javed in C.P. No.D-323 of 2017 , the 'impugned order' of 09.01.2017, passed by learned Additional District Judge-III, Karachi-East, besides, being erroneous, is against the principles of natural justice. Learned counsel, next contended that the Revisional Court while, passing the impugned order', has not only exceeded its' jurisdiction but also committed a material illegality and irregularity in interfering the discretionary jurisdiction of the Executing Court. The impugned order dated 09.01.2017 [Annexure 'A' to MoPs'], thus has no sanctity/value in the eyes of law. Consequently , the same, as urged, is liable to be set- aside and resultantly order passed by the Executing Court dated 16.11.2016 , [Annexure 'H' to MoP of CP No.D- 324 of 2017], deserves to be restored.
22. Against the above, Mr. Junaid Alam Khan, learned counsel for the Auction Purchaser viz. Shahzad Rehaim son of Muhammad Rahim [Respondents Nos.2 and 1 respectively in CPs in hands], strongly defended the impugned order dated 09.01.2017 [Annexure 'A' to the MoPs], passed by learned Additional District Judge-III, Karachi-East.
Per learned counsel, the 'impugned order', whereby , the order passed by the Executing Court on 16.11.2016 [Annexure 'H' to MoP in CP No.D-324 of 2017], for re-auction/sale of the 'subject property' , is not only valid but has also been passed in accordance with law, as such, does not need any interference. Mr. Junaid Alam Khan, learned counsel for the Auction Purchaser while, advancing his arguments next contended that the order passed by the Executing Court on 29.07.2016, for 're-auction' / sale of the 'subject property' i.e. House bearing No. A-310/3, Block-3 Gulshan-e-lqbal Karachi measuri ng 240 sq.yds having Ground + One Storey construction, since, was bad in law, as such, the same, was rightly set-aside by the Revisional Court with direction to the Nazir of District and Sessions Court, Karachi-East to complete the sale proceeding. Per learned counsel, since, the Auction Purchaser had given the highest bid of Rs.1,39,00,000 /- [Rupees One Crore Thirty Nine Lac only], for purchase of the 'subject property' by depositing 25% of the bid amount i.e. Rs.34,75,000/- [Rupees Thirty Four Lac Seventy Five Thousand only], through cheque No.43019402 dated 24.10.2016, of Habib Bank Limited, High Court Branch, Karachi, as such, the highest offer of the Auction Purchaser was needed to be accepted by the Executing Court. According to Mr. Junaid Alam Khan, at the time of auction, the Decree-holders and Judgment-debtors though, had shown their intention/willingness to purchase the 'subject property' but at the time of auction proceeding against the highest bid of the Auction Purchaser , no any objection, as urged, by Mr. Junaid Khan was raised by either the Decree Holders or Judgment Debtors.
23. Per Mr. Junaid Alam Khan, learned counsel for the Auction Purchaser , the order passed by the Executing Court dated 26.11.2016 [Annexure 'H' to the MoPs] since, was erroneous, contrary to law and having been passed, in a hasty manner , was thus rightly set-aside by the 'impugned order' dated 09.01,2017 [Annexure 'A' to the MoPs], passed in Civil Revision Application No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and 12 others ], by the learned Revisional Court. While, concluding his arguments, learned counsel for the 'Auction Purchaser' forcefully urged that the impugned order dated 09.01.2017 [Annexure 'A' to MoP in CP No.D-324 of 2017], passed by learned Additional District Judge-III Karachi-East, needs no interference, as such, both the CPs filed by Decree- holder/Judgment-debtor deserve to be dismissed with cost.
24. In support of his contention, Mr. Juna id Alam, learned counsel for the 'Auction Purchaser' , placed reliance on [a]. Mst. Mehwish Kashif through Attorney/Husband v. Messrs Summit Bank Ltd. and 4 others [2014 CLC 1424], [b]. Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others [PLD 1953 L 143], [c]. Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others [PLD 1987 SC 512], [d] . Messrs Irisma International and 3 others v. United Bank Limited, Karachi and another [2006 CLD 832], [e]. Messrs Capital Poultry Feed and Da1 1 Mills and others v . Presiding Officer of Banking Court, Islamabad and others [2016 CLD 1260 ].
25. The relevant portions referred to and relied upon by learned counsel for the 'Auction Purchaser' in support of his contention respectively are reproduced here-in-below:- a]. 2014 CLD 1423 [relevant pages 1429 to 1430] "Mere increase of offer made by an stranger after more than one month and eight days to the fall of hammer during auction proceeding could not be accepted by the Executing Court as valid ground for setting aside the valid sale through open auction with intervention of the court, unless proceedings of auction were shown to be collusive, fraudulent or lacking transparency . Even some mutual understanding, consent or compromise between the decree holder and the judgment debtor or any third party will not affect the right of the auction purchaser , which the Court is bound to honour and protect in order to maintain sanctify of such transaction, as per its order . If any case-law is needed to fortified this view the reference may be made to the case of Hudaybia T extile Mills Ltd. v . A.B.P .L. reported in (PLD 1987 SC 512 ).
In the case of Messrs Irisma International supra, it has been held that:-- "It is now settled proposition of law that once a bid has been accepted and no objections are filed within given time held in 2005 SCMR 1237 the auction is to be deemed to have been con firmed under Order XXI Rule 65 C. P. C. It is also settled that the Courts cannot be turned into auction house. Procedure adopted by the Banking Court, in our humble estimation, did not suffer from any illegality or perversity of the nature as urged in the instant appeal."
In the case of Muhammad Ikhlaq Memon reported in HD 2005 SC 819, it has been held that:-- "Negotiated offer made by the auction purchaser having been accepted by the Banking Court, auction purchaser had acquired legal rights and interests in the properties purchased by him. Once payment purchaser , in compliance with the orders of the Court, had been made it was the duty of the Court to confirm the sale as required by Order XXI, Rule 92, C.P.C. Even where the Court had failed to pass an order of confirmation of the sale that would not lead to deprivation of right of auction purchaser or cause prejudice to him and in such a case, it would be deemed that the sale stood confirmed and purchaser would he deemed to have become absolute in his title by virtue of section 65, C. P .C., which would relate back to the date of sale.
In the case of Askari Commercial Bank Limited reported in 2008 CLD 800 It has been held that:-- "In this matter the sale was conducted on 3-3-2008 and the reference for confirmation of sale was filed in Court on 6-3-2008 which was first time taken up in court on 7-5-2008 and was confirmed. The applicant has not participated in the auction and has not assigned any reason for not doing so. The bid which was presented to the Nazir after the close of the Auction has no legal value and cannot be considered as the same is violative of the right acquired by auction purchaser . Frequently entertaining such request after closing of the sale is seriously affecting the working as well as sanctity of the auction by Court and it will not be possible to conclude sale through Court and the order of the Court will loose its sanctity and the people will distance themselves from auction/sale conducted by Court. "
[Underlining is ours] [b]. [PLD 1953L 147 [relevant page 157 ] "The preponderance of authority , therefore seems to be in favour of the view that once a sale has validly taken place in execution proceeding confirmati on of the sale cannot be withheld merely on the ground that the decree has been wiped out or reversed in the meantime. A consideration of the language of section 65, C.P.C., as compared with the provisions of section 316 of the old Code, supports this proposition. In such a case therefore, the Court is under a duty to confirm the sale under Order XXI, Rule 92, C.P.C., unless objection have been successfully taken under Rules 89 to 91 of that Order ." [Underlining is ours] [c]. PLD 1987 SC 512 [relevant pages 527 and 5281
15. But apart from the above another vital principle is involved. In the American Jurisprudence (2nd Edition)
Volume 47, Article 178 at page 440, the general principles governing the direction to grant or refuse confirmation of a judicial sale are discussed. It has been observed:-- "Although in some jurisdictions a more restrictive rule is followed in cases where it is urged that confirmation should be refused on the sole ground that an advance or upset bid has been received, the confirmation of, or refusal to confirm, judicial sales, as a general rule, rests largely within the discretion of the trial Court, and such determinations ordinarily will not be reviewed except for manifest abuse of such discretion. The discretion to be exercised is not arbitrary , however , but should be one which is sound and equitable in view of all the circumstances. The Court must act in the interest of fairness and prudence, and with a just regard to the rights of all concerned, and the stability of judicial sales. Thus, if the sale was fairly conducted and the property old for a reasonable and fair value under the circumstances, the Court in ordinarily required in the exercise of its judicial discretion to confirm the sale."
In Article 179 on page 441 further observations as regards the policy of law in respect of judicial sales have been made as under:- "Nevertheless, the policy of the law does not require Courts to scrutinize the proceedings of a judicial sale with a view to defeat them, but on the contrary , every reasonable intendment will be made in their favour , so as to secure, if it can be done consistently with legal rules, the object which they are intended to accomplish. As a consequence in order to maintain confidence in the stability of judicial sales, Courts have adopted the wise policy that confirmation will not be refused except for substantial reasons and that in the absence of fraud or misconduct, the highest bidder will ordinarily be accepted as the purchaser of the property offered for sale."
The above passages from the American Jurisprudence clearly point out the dominant principle of law in such cases, namely , the stability of judicial sales. In this context the argument that since the Court was vested with the wide discretion to choose any mode of execution of the decree, it can likewise refuse confirmation of sale on any ground it chooses is without substance. Judicial discretion vested by statutory provisions cannot be construed in such a manner as it will arm the Court with arbitrary powers and would inevitably destroy the public confidence in the stability of the judicial sales as pointed out by the American Jurisprudence. Therefore, on facts as well as on principle the learned Single Judge went wrong in refusing confirmation on the ground that after the sale the decree had been satisfied. Even otherwise once the Court had made up its mind to execute the decree by attachment and sale by public auction, as long as the order so directing was in the field, the discretion vesting in it under section 8(3) of the Ordinance stood exhausted and a particular course of proceedings was brought into motion which had to culminate in a result contemplated by legal principles , and this course could not be diverted on the assumption that the executing Court had discretion to choose any mode of execution. In the premises the question of confirmation was to be regulated either by the C.P.C. or equitable principles under the provisions thereof or on general principles as pointed out above. From any angle the refusal of confirmation by the learned Single Judge is unsustainable and the auction purchaser was entitled, in the circumstances of the case to the confirmation of the auction sale. It was urged that the discretion was properly exercised because the purchaser himself was present when the negotiations between the decree-holder and the judgment debtor were taking place in Court and had applied at one stage for withdrawal of deposit. This argument is without substance because purchaser has not been shown to be a consenting party to the arrangement between the decree-holder and the judgment debtor . He had no doubt at one stage applied for withdrawal of the amount deposited by him on the ground that there was some clog on the title of the judgment debtor in the property subjected to Court sale but before any orders were passed on this application it was withdrawn stating that the same was made under wrong advice and the Court dismissed the application. It is well recognized that a proceeding withdrawn with the permission of the Court is wiped off from the record as non-existent. " [Underlining is ours] [d]. [2006 CLD 832 [relevant page 835].
"It is now settled proposition of law that once a bid has been accepted, a time, as held in 2005 SCMR 1237 the auction is to be deemed to have been con rmed under Order XXI Rule 65 C.P.C. It is also settled that the Courts cannot be turned into auction house . Procedure adopted by the Banking Court, in our humble estimation, did not suffer from any illegality or perversity of the nature as urged in the instant appeal. Even the bid has been sanctified in A HCA No.13 of 2004 coupled with the fact that the appellant had already withdr awn his bid amount prior to filing of this appeal and had not disclosed such fact. Even the bid made before this Court as per (CMA No. 1590 of 2005) under section 151, C.P.C. in the sum of Rs.1,1000,000 (Rupees One Crore Ten Lacs only) is in respect two properties namely residential property subject-matter of instant appeal and so also for the factory in Export Processing Zone, where as bid in respect of bungalow of 1000 square yards at Gulshan-e-lqbal has been confirmed for 72.00,000 in the year 2004. Accordingly we do not find any merit in this appeal, which is dismissed.
Let the amount deposited by the appellants be refunded forthwith on proper verification identification , (Underlining is ours)
[e] [2016CLD 1260 Relevant Page 1265 ]
9. In the context of Order XXI, Rule 90 it has been held that the time period of 30 days, as specified under Article 166 of the Limitation Act, 1908, is also attracted for the filing of an application there under . It has further been elaborated and held that failing to comply with Order XXI, Rule 90 or 89, C.P.C. has an inevitable consequence, that the Judgment debtor is precluded from making any challenge to the validity of sale at a subsequent stage.
Referring to Order XXI, Rule 92 it has been unequivocally observed and enunciated that the said provision explicitly prescribes for the consequences of a failure to make an application under Order XXI, Rule 89 or Order XXI, Rule 90. Failure to invoke Order XXI, Rule 89 or Order XXI, Rule 90 of the C.P.C. makes it mandatory for the learned Court to make an order confirm ing the sale, and thereafter the sale becomes absolute. The apex Court has further emphasized that if a judgment debtor chooses not to take advantage of the opportunities afforded to him by the law the matter comes to an end. In the same judgment the august Supre me Court has reiterated the principles and law enunciated in the landmark judgment titled Hudaybia Textile Mills Limited v. Allied Bank of Pakistan Ltd. [PLD 1987 SC 512]. In the latter judgment the august Supreme Court has highlighted the significance of upholding the sanctity and stability of judicial sales . The relevant passage, reaffirmed and reiterated in the case of Zakria Ghani and 4 others supra is as allows: "The above passage from the American Jurisprudence clearly points out the dominant principle of law in such cases namely , the stability of judicial sales. In this context the argument that since the Court was vested with the wide discretion to choose any mode of execution of the decree, it can likewise refuse confirmation of sale on round it chooses is without stance. Judicial discretion vested by statutory provisions cannot be construed in such a manner as it will arm the Court with arbitrary powers and would inevitably destroy the public confidence in the stability of the Judicial sales as pointed out by the American Jurisprudence."
10. After reproducing the above passage the august Supreme Court has observed as follows: "This is an extremely important Judgmen t which was and is binding on all subsequent benches of equal or fewer numbers of Judges and still rules the field. It is unfortunate that its existence has sometimes been inadvertently lost sight of
11. It is obvious ftom the above that the law relating to exercusing the alternate mode under Order XXI Rule 89 or 90 of challenging an order passed in relation to the sale of properties is well settled. The time period for making an application under either of the Rules is 30 days from the date of sale and the limitation prescribed under Article 166 of the Limitation Act shall be attracted. Sub-Rule (2) of Rule 92 of Order XXI further affirms that in the case of an application under Rule 89 the deposit, as specified 'bid, is to be made within 30 days from the date of sale. It is also obvious from the plain reading of Rule 89, read with Rule 90, that both the methods of challenging the sale cannot be invoked simultaneously . Sub-Rule (2) of Rule 89 explicitly provides that where a person applies under Rule 90 to set aside the sale of his immoveable property then he loses his entitlement to make an application under Rule 89, unless the application under Rule 90 has been withdrawn. The remedy under Order XXI, Rule 89 can only be availed within thirty days of the sale. It has been held by the apex Court that if a judgment debtor chooses not to take advantage of the opportunities afforded to him by the law the matter comes to an end'. As a corollary the advantage is available within the time and in the manner prescribed. The argument advanced by the learned counsel for the appellants that the latter were entitled to file an application under Order XXI, Rule 89 at any stage is misconceived. Moreover , there is no force in the argument that the order dated 15-9-2015, whereby the august Supreme Court dismissed the Civil Review Petition No.489/2015 as not pressed, be construed as withdrawal of the Objection Petition under Order XXI, Rule 90, C.P.C. The said Objection Petition had been dismissed vide order dated 12-9-2014, while the appeal was also dismissed by a Division Bench of this Court vide judgment dated 23-4- 2015. In any case it is an admitted position that the appellants had not filed any application under Order XXI, Rule 89, C.P.C. within the prescribed period of limitation. The sale was confirmed in favour of the respondents Nos. 3 and 4 and the sale certificate has also been issued. As bona fide purchasers their interests have also intervened and need to be protected. At the same time the sanctity and stability of the judicial sale is also required to be upheld . This Court is also guided by the observations made by the august Supreme Court in the case of Zakaria Ghani and 4 others supra while referring to the case of Hudaybia T extile Mills Limited supra, as follows: "If the valuable lessons contained in the judgment of this Court in the Hudaybia case had been observed and followed by banking courts such a state of affairs could perhaps have been averted. The sanctity of judicial sales needs to be reaffirmed authoritatively and definitively in the public interest as well as in the interest of decree holders and judgment debtors. " [Underlining is ours]
26. Heard and perused the record.
27. The highest bid of 'Auction Purchaser' , in the case in hand, it is significant to note, was rejected by the Executing Court, as the 'subject-property' i.e. House bearing No. A-310/3, Block-3 Gulshan-e-Iqbal Karachi measuring 240 sq.yds having Ground + one story construction, has the potential of fetching more price than the highest bid of the Auction Purchaser in the sum of Rs.1,39,00,000/- [Rupees One Crore Thirty Nine Lac only]. In view of this position, the 'subject property' was rightly ordered to be 'sold. afresh' by Order dated 16.11.2016 [Annexure 'H' to the MoP in CP No.D-324 of 2017], passed by learned Executing Court i.e. IXth Sr. Civil Judge, Karachi-East, by the Nazir of District and Sessions Court, Karachi-East, as per law and procedure. The learned Executing Court has thus not committed any illegality and/or irregularity in passing order for holding sale/auction afresh. The contention of learned counsel for the 'Auction Purchaser' to this effect stands repelled. In the 'processes of auction', the court or officer holding the sale [if authorized in this regard], has discretion to decline the acceptance of highest bid if, the price offered is either in-adequate and/or otherwise, in the opinion of court, the property under auction/sale has B the potential to fetch more price than the offered one, as the case in hand is. The Executing Court, it appears, was well aware about the location of the 'subject property' and market value thereof.
28. Moreover , submission of a bid, it is worth mentioning, does not mature into a contract, until and unless such bid is accepted, as obviously it is in the nature of an offer. In the present case the Nazir of District and Sessions Court, Karachi-East, in terms of Order dated 2.9.2016 whereby , Execution No.20 of 2015, was sent to the Nazir of District and Sessions Court, Karachi-East, is without authorizing him to accept or refuse any bid. Nazir in the case in hand did act as an agent of the seller but ex-fa cie was not vested with any power either to accept or refuse any of the offers received by him. This was the reason that all offers, were placed before the Executing Court i.e. learned IXth Sr.Civil Judge, Karachi-East, for perusal and passing an order in respect of C bids/highest bid, of the Auction Purchaser herein for acceptance or rejection thereof. The deposit of a cheque No.43019402 dated 24.10.2016, by the 'Auction Purchaser' viz. Shahzad Rahim son of Muhammad Rahim for 25% of the bid amount of Rs.1,39,00,000/-, which comes to Rs.34,75,000/-, drawn on Habib Bank Limited, High Court Branch, was subject to its' realization. Merely , on the basis of said deposit of a cheque when the bid, in the case in hand, was not accepted by the Executing Court, the Auction Purchaser cannot claim any legal/vested right in the 'subject property'. At this juncture, we would like to refer to the definition of 'sale', as has been defined in Black's Law Dictionary [Seventh Edition]. The 'definition of sale', for ready reference and convenience purpose is reproduced herein:- "(1) The transfer of property or title for a price.
(2) The agreement by which such a trans fer takes place. The four elements are (1) parties competent to contract, (2)mutual assent, (3) a thing capable of being transferred, and (4) a price ID in money paid or promise"
29. Besides, the term 'sale' has been defined in section 54 of the Transfer of Property Act, 1882 [IV of 1882].
According to such definition, it is the transfer of 'ownership of 'immovable property' for a price paid or promised. In 'auction proceedings', no right/title in the auctioned property deems to be created/transferred in favour of any bidder unless bids/highest bid is forwarde d to and accepted by Court. Once, the sale is accepted and the balance 75% of the bid amount is deposited within fifteen [15] days then, no doubt, such bid needs to be confirmed/automatically stand confirmed, if otherwise, no order for 'confirmation' of sale is passed. In such eventuality , as provided in section 65, C.P.C. the 'ownership right' in the auctioned property would be deemed as vested in the 'successful bidder ' from the date when, action was held. This, however , is subject to the outcome of the already objections/proceedings if initiated/filed under Order XXI, Rules 89, 90 and 91, C.P.C., in accordance with law .
30. Mere, participation in the 'auction proceedings' and floating a highest bid by an 'Auction Purchaser', did not cloth 'him with any right in the property being auctioned/sold. An 'Auction Purchaser' on the basis of his highest bid cannot claim any right and/or has any locus standi otherwise, to challenge the order passed for re-auction' sale' of the property , passed by the Executing Court/Court/authority , until and unless, such highest offer of the 'Auction Purchaser' is accepted . In the case in hand, the highest offer of the 'Auction Purchaser' since, has been rejected by the Executing court, as such, the auction purchaser herein, could ask for deposit of the balance of 75% amount.
31. On the above aspects of the matter , reliance can be placed on the cases of [i]. Munshi Muhammad and another v. Haa and another [1971 SCMR 533] [ii], Muhammad ik lag Memon v. Zakarla Ghanl and others [2005 CLD 1589 ] and [iii] Chemical Industries (Pvt.) Ltd. v. Messr s A.W.Brothers and others [2004 SCMR 1956 ). The relevant portions therefrom, read as follows:
1. 1971 SCMR 533 "--The view formed by the High Court is unexceptionable, Since the auctions in favour of the petitioners were not finally approved, they did not acquire any right in the properties and had, therefore, no locus standi to ask for their transfer . According to the terms and conditions of the auction itself, the highest bids offered in the auctions were subject to the approval of the Additional Settlement Commissioner con cerned who may or may not accept the bids, without assigning any reasons for his action ." (Underlining is ours), [ii]. 2005 CLD 1589 "...19. The negotiated offer made by the appellant having been accepted by the Banking Court, the appellant had acquired legal rights and interests in the properties purchased by him. In Janak Raj's case (AIR 1967 SC 608), it was held that once payment of the sale price by the auction-purchaser in compliance with the orders of the Court had been made, it was the duty of the Court to confirm the sale as required by Order XXI, Rule 92, C.P.C. Even where the Court fails to pass an order of confirmation that could not lead to deprivation of right of auction- purchaser or cause prejudice to him. In such a case, it could be deemed that the sale stood confirmed and would be deemed to have become absolute in title by virtue of section 65, C.P.C. which would relate back to the date of sale. In the case of Hudabia Textile Mills (supra), the legal rights and interests of auction purchaser were recognized which could not be defected. [Underlining is ours] [iii]. 2004 SCMR 1956 "3. We have examined the entire record and also perused the judgment impugned. We may mention here at the outset that mere floating of the bid in respect of the fact whether it is the highest or the lowest; does not create a legal right in favour of the bidder , hence the question of its infringement does not arise . The petitioner has just floated a bid on the basis whereof no bar could be imposed on the official assignee or the Court to evolve a methodology to fetch more price to satisfy the decree subject to fairness and transparency . There is no cavil with the proposition that auction proceedings should be transparent and every possible effort be made to fetch the maxim price closer to market value. The prime object of inviting tender is to provide equal opportunity to all the prospective bidders which was never frustrated by accepting the highest bid... As mentioned hereinabove by floating of bid no legal right whatsoever accrued in favour of petitioner . The Court in such-like eventualities is required to safeguard preliminarily the interest of judgment-debtor and further to see that auction proceedings have been conducted in a fair and transparent manner and no bar whatsoever has been imposed on the Court if some beneficial devices evolved to get maxim um price and to achieve the said purpose. The Court may make any amendment, deletion, insertion or change in the advertisement qua auction. In this regard we are fortified by the dictum laid down in case titled Asma Zafarul Hassan v. United Bank 1981 SCMR 108 wherein it was held as follows while discussing identical proposition :-- "(11) The learned counsel vehemently urged that the property could not be sold otherwise than by auction. For this proposition, he placed reliance on Rule 65, Order XXI, C. P.C. and rule 351 of the Chief Court Rules (Original Side). These provisions do prescribe the mode of disposal by public auction but neither of them expressly or by necessary implication prohibit any other mode of disposal. Therefore, if the Court had deviated from this mode of disposal to serve the ends of justice, no exception can be taken to it. In Narsing Das v. Mangal Dobey (1883) 5 All. 163 Mahmood, J. observed :-- `Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law . As a matter of general principle prohibition cannot be presumed.
(12) This principle is now well-accepted and as the prime object of the procedural law is to advance the cause of justice , the Court can, under its inherent power , adopt a different mode in the absence of any prohibition to that effect. This contention is also without substance." [Underlining is ours]
32. The provisions of Order XXI, Rules 84 and 85, C.P.C., are mandatory in nature and in case, of 'non-compliance' thereof, property under auction/sale, is liable to be re-sold forthwith. Moreover , Order XXI, Rule 84, C.P.C., relates to a stage prior to acceptance of the bid while, Order XXI, Rule 85, C.P.C., pertains to and covers a post acceptance-stage. For proper appreciation of this situation, we would like to refer to the provisions of Order XXI, Rules 84 and 85, C.P .C. and reproduce the same here-in-below: a. "84. Deposit by purchaser and re-sale on default . (1) on every sale of immovable prope rty the person declared to be the purchase shall pay immediately after such declaration a deposit of twenty five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.
(2)Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72 the Court may dispense with the requirements of this rule. "
"85. Time for payment In full of purchase money .---The full amount of purchase money payable shall be paid by the purchaser into court before the court closes on the fifteenth day from the sale of the property: Provided that, in calculating the amount to be so paid into court, the purchaser shall have the advantage of any set off to which he may be entitled under Rule 72.
33. On the above aspect of the matter , reliance can be placed on the case of Messrs Dawood Flour Mills v.
National Bank of Pakistan [1999 MLD 3205 ], wherein, the sale due to 'non-deposit' of 25% of bid amount as required under Order XXI, Rule 84, C.P.C., was set aside. The relevant part therefrom, is reproduced here-in- below: - "The auction purchaser was required to pay immediately after he was declared to be the purchaser , 25 % of the bid money to the Court auctioneer and in default of such deposit the property shall be resold . Learned counsel for the alleged auction-purchaser admits that such a deposit was not made and instead a cheque in the sum of Rs.1,200,000 was handed over to the officer conducting the auction. It is not clear from the record as to when the cheque was cashed. However , this fact is certain that the requisite amount was not deposited or handed over to the officer conducting the sale. The consequence of this default is that the property was to be sold. Thus, no sale took place in favour of the alleged auction-purchaser on 12-9-1998 as because of the failure of the purchaser to make the required deposit, sale stood nullified by operation of law. Needless to say that no resale took place. The manner and mode in which payment was to be made is prescribed by law and the consequence also laid down in law in clear terms. Over and above, this the matters were made clear in terms of proclamation itself. A cheque can, in no circumstances be held to be a substitute for the deposit required to be made under the law. The learned Banking Court has dealt with this objection in a very callous manner . This lapse on the part of the Court auctioneer , as seen in the light of patent fact that property worth fifty millions had been mana ged to be sold for less than five millions also supports the contention of the learned counsel for the appellants that there was fraud in the conduct of sale. Even if we were to hold that there was no intentional fraud, the said lapse on the part of the executing Court, constituted a material irregularity within the meanings of Order XXI, Rule 90, C.P.C. It was held in Manilal Mohanlal v. Sayed Ahmed (AIR 1954 SC 349) that the provisions of Order XXIX, Rules 84 to 86 are mandatory and upon non-compliance with this provision there is no sale at all and the sale proceedings were completely a nullity . It was further observed that the very fact that the Court was bound to re-sell the proper ty in the event of default shows that the previous proceedings for sale were completely wiped out as they do not exist in the eye of law".
(Underlining is ours.]
34. As far as, the case in hand is concerned, we are of the opinion that the learned Additional District Judge-III, Karachi-East, has badly failed to appreci ate that the 'subject property' is belonging to the legal heir [i.e. Decree- holders and Judgment-debtors]. The 'Executing Court' in such like situation, is not only to act as a custodian of legal heirs but also it is vested with a 'discretionary power' either to accept or reject any of the bids whether , it is lowest or highest. Merely , on the basis of floating a bid/highest bid, the 'Auction Purchaser' does vest any right to insist for acceptance of his bid, particularly when, the Decree-holders/Judgment-debtors, are not extending/giving their counsel. The learned Additional District Judge-III, Karachi-East, has not only failed to appreciate the substantial increase in the prices of immovable properties H but has also failed to take into consideration the location of the 'subject property' i.e. House bearing No. A-310/3, Block-3 Gulshan-e-Iqbal Karachi measuring 240 sq.yds having Ground + One Storey construction. The learned Revisional Court, it appears, besides, wrongly assuming its' jurisdiction has erred in law to pass the 'impugned order' dated 09.01.2017 [Annexure 'A' to MoPs], whereby , order dated 26.11.201 16, passed by the Executing Court [Annexure 'H' to MoPs in CP No.D-324 of 2017] for holding 'fresh auction' / 'sale' of the 'subject property' after rejection the highest offer/bid of Auction Purchaser , through Nazir of District and Sessions Court, Karachi-East, was set-aside
35. Moreover , the Revisional Court has also failed to appreciate that in the process of sale through Court, the Court is vested with powers to either accept or reject any of the bids whether highest or lowest without assigning any reason. The Executing Court, of course, was not bound, in the case in hand, to accept the highest offer of the 'Auction Purchaser' particularly when, such offer in respect of the 'subject property' i.e. House bearing No. A-310/3, Block-3 Gulshan-e-Iqbal Karachi measuring 240 sq.yds having Ground + One Storey construction was/is quite in- adequate if, location and market value of the 'subject property' where it is situated is seen and considered. The learned Additional District Judge-III, Karachi-East, has also failed to consider that the 'subject property' is the ancestral property of Decree-holders and Judgment-debtors, as such, the same cannot be sold without their consent . Needless to say, the Decree-holders and Judgment-debtors, through-out are not only defending the order passed by the Executing Court on 16.11.2016 for holding 'fresh auction' of the 'subject property' by Nazir of District and Sessions Court, Karachi-East but, as evident from the record, they had also seriously opposed the Civil Revision Application No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and 12 others ] filed before the Court of learned Additional District Judge-III, Karachi-East. Even, the impugned order dated 09.01.2017, passed in the aforesaid Civil Revision Application has now been challenged and seriously being opposed by the 'Decree-holders' and 'Judgment-debtors' in the present petitions which show ex-facie their un-willingness/ reluctance regarding sale of the 'subject property' in favour of the 'Auction Purchaser' at Rs.1,39,00,000/-.
36. In view of above, we are of the considered opinion, that the 'impugned order' dated 09.01.2017 [Annexure 'A' to MoPs], is not only erroneous on facts and law, but also the same is suffering from material illegality and irregularity .
The impugned order dated 09.01.2017 [Annexure 'A' to MoP'], as such, needs interference in the exercise of jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973.
37. As far as, the case laws cited by Mr. Junaid Alam Khan, learned counsel for the 'Auction Purchaser' are concerned, the same beside being distin guishable, do not support the case of 'Auction Purchaser' [Respondents Nos.2 and 1 respectively , in CP No.D-324 of 2017 and CP No.D-323 of 2017]. All the cited case laws pertain to the 'post acceptance' stage. In the case in hand, the Petitioners are defending Order dated 26.11.2016 [Annexure 'H' to MoP of CP No.D-324 of 2017], where by, the bid of 'Auction Purchaser' was rejected by Executing Court and Nazir of District and Sessions Court was consequently directed to sale/auction the 'subject property' afresh as per law and procedure. Parties and 'Auction Purchaser', it is significant to note, were also left at liberty to participate in the fresh auction/sale to be held.
38. In view of the above discussion, we are of the considered opinion that 'impugned order' dated 09.01.2017 [Annexure 'A' to the MoPs], passed by learned Additional District Judge-III, Karachi-East, is not only erroneous but also illegal, as such, while, allowing the instant petitions, the same is hereby set-aside and consequently , Order dated K 26.11.2016, passed by the Executing Court i.e. IXth Senior Civil Judge, Karachi-East, whereby , the highest bid of Auction Purchaser was rejected and Nazir of District and Sessions Court was directed to hold `fresh auction' / 'sale' of the 'subject property' as per law and procedure, stands restored .
Both the petitions stand allowed and all the pending applications stand 'disposed of as the same have served its' purpose.