FAHIM AHMED SIDDIQUI, J. Through the listed application, the applicant intends to review the order dated 15- 01-2019, whereby an offer by the defendant No. 3 (one of the LRs/shareholders) of matching rather enhancing the bid amount for the purchase of Plot No. 6/9-G, Nazimabad No. 4, Karachi, was accepted.
2. Briefly, the factual matrix of the case is that the plaintiffs and defendants are the legal heirs of deceased Muhammad Zaheer Khan, as such, they are co-sharers in the property in question i.e. built-up house on Plot No. 6/9-G, Nazimabad No. 4, Karachi. In compliance of order dated 23-11-2009 and subsequent orders dated 23-10-2012 and 13.03.2017, the said property was put on auction by the Nazir of this Court and the applicant offered the highest bid i.e. Rs. 3,40,00,000/-.
Meanwhile, one of the legal heirs of the deceased i.e. defendant No.3 came forward intending to match the highest bid rather he has offered to enhance the same and the other legal heirs/shareholders did not prefer any objection. Since defendant No. 3, being one of the legal heirs has a preferential right as such the same was accepted and he was directed to deposit the amount after deducting his share with the Nazir within 15 days.
3. Mr. Sikandar Khan, the learned counsel for the applicant. submits that the applicant has given the maximum offer of Rs. 3,40,00,000/- and has deposited 25% of the bid amount, as such a right has been created in his favour. According to him, the Nazir of this Court has accepted such an offer, and since the sale is not of mortgage decree, therefore, the acceptance of the offer by this Court was a formality. He submits that the applicant should also be allowed to enhance his offer, which was not done while passing the order under review.
He further, submits that the order under review was passed behind the back of the applicant, as such the same is required to be set aside or the property should be put for re-auction so that the applicant may have a chance to participate again. According to him, after the auction, the shareholders have no right and after the auction, there would be no question of settlement between them. He submits that the defendant No. 3 or any of other legal heirs have no preferential right in presence of a valid offer by the applicant and such observation of the Court at the time of passing the order under review is contrary to law. In response to a query, the learned counsel for the applicant has sought three days' time to place some citations in support of his contentions, but no such citation is placed by him so far.
4. On the other hand, the learned counsel appearing for the plaintiffs and defendant No. 3 support the order under review. They raise one vice in this respect and according to them unless the offer is accepted by the Court, the legal heirs may reach some settlement and any offer by any of them should be respected. In addition to that, the learned counsel for the defendant No. 3 submits that in compliance with the direction of this Court, the requisite amount had already been deposited with the Nazir of this Court and now the matter is finalized up to the extent of the property in question.
5. In rebuttal, learned counsel for the applicant has challenged the preferential right of a co-sharer by submitting that after the auction, there exists no such right. According to him, after the auction, a bid was received then irrespective of its acceptance or not, the legal heirs cannot enter into any settlement regarding such property.
6. I have heard the arguments and pondered over the submissions of either side.
7. In my humble view, it is not the correct legal proposition that there will be no settlement between the legal heirs after auction and no offer by any of them can be considered. In the present case , the property in question is an inherited property , which eventually came to be sold at a court sale and knocked down in favour of the applicant being the highest bidder . Although, he has deposited 25% of the offered price, but the Nazir's report for confirmation of sale has yet not seen the light of day when the defendant No. 3 came forward with a matching rather better offer. I am of the view that unless the auction purchaser deposited the entire amount, no right is accrued in his favour . An auction purchaser cannot enforce his right over the prope rty unless his bid is accepted by the Court. In the present case, the applicant has deposited only 25% of the bid money . I found myself not in agreement with the contention of the learned counsel for the applicant that the approval or confirmation of sale by Court is a formality . No doubt, it was not court sale regarding a mortgage decree and Order XXXIV of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code') is not applicable but I am of the view that in all sales by Court, there is an active supervision of the Court to safeguard the interest of parties. An auction purchaser cannot enforce his right over the property unless his bid is accepted by the Court and/or he has deposited the entire amount of sale according to Order XXI, Rule 85 of the Code. There is a presc ribed format being Form-29 in Appendix "E" of the Code, which contains several conditions regarding a court sale. According to condition No. 3 of the said Form, it is the court's active obligation to exercise its discretion to make a fair sale through a court auction.
I am of the view that in all public sale, the authorities including court and its staff must protect the interests of the parties. Hence, unless the highest bid offered by the applicant was accepted by the Court and the entire amount was deposited by him, he has no legal right or character in the property in question.
8. So far as the preferential right of the defendant No. 3 is concerned, the same is also a legal obligation upon this Court. As per provision of Order XXI, Rule 88 of the Code, the bid of co-sharer has a preference over the bid of any outsider . Hence, whenever a co-sharer offers to match the highest bid and the same is not objected by the other co-sharers, there will be no reason to refuse such an offer. Nevertheless, in case a matching or a better offer is received from the co-sharer and other co-sharers are satisfied with such an offer, there will be no need to give notice to the higher bidder for enhancing his bid. Besides, in the present case, the order under review was not passed behind the back, as the same was passed in the presence of the counsel for the applicant.
9. The upshot of the above discussion is that there is no merit in the instant application; as such the same is dismissed. The applicant is at liberty to withdraw his amount from the Nazir of this Court if the same has yet not been withdrawn. Review of application stands dismissed with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.