SHAKEEL AHMAD, J. This revision petition is directed against the consolidated judgment and decree dated 28.04.2007, passed by the learned Additional District Judge-III, Haripur whereby he affirmed the judgment and decree dated 15.1 1.2003, passed by the learned Civil Judge, Haripur .
2. The facts forming background of the present lis are that Hassan Din s/o Chan Din was the owner of a house consisting of two rooms, veranda, compo und and vacant site, measuring one Kanal and nine Marlas in Khasra No. 426 in the Abadi of Sikandarpur within the limits of town committee Haripur . By a registered deed of mortgage dated 07.01.1961, he mortgaged this property for Rs. 5000/- with Haji Ghulam Kibria and Haji Ghulam Sarwar . It was stipulated that if the mortgagor failed to redeem the mortgage after the expiry of one year, the mortgagees would be entitled to recover the mortgaged amount from the mortgaged property , the mortgagor , thereafter , hired the house on monthly rent of Rs. 40 and in this connection, a deed was executed in favour of the mortgagees, the mortgagor failed to pay the rent, therefore, the mortgagees brought ejectment petition against him and his wife.
This prayer was acceded to and consequently the learned trial court passed an order of ejectment. Mst Chanani Khanam, thereafter instituted a suit (suit # 97/1) in the court, claiming exclusive ownership of the property contending therein that the same has been transferred to her in lieu of dower . The said suit "Mst. Chanani Khanam Vs Ghulam Sarwar and others was instituted on 05.03.21968, however , it was dismissed under Order IX Rule 8 CPC on 4th of September 1968. On failure of the mortgagor to redeem the house, a suit was instituted by the mortgagees (suit No. 14/1) on 09.01.1969 for declaration to the effect that in the facts and circumstances they were entitled to recover Rs. 7280/- (mortgage d amount and arrear of rent) through sale by auction of the mortgaged property . It is reflected from the record of the case that the defendant of the said suit was proceeded exparte, after following the legal and codal formalities provided under the law and consequently , vide judgment dated 28.03.1969 an exparte. Preliminary decree was passed in favour of the mortgagees. Thereafter an application was moved for grant of final decree on 12.03.1970. This time too, the defendant could not be served, hence, on the direction of the learned trial court his service was effected through daily Harriet Karachi but the defendants this time again failed to make appearance and ultimately an expa rte final decree was passed against him on 17.01 1.1970. It is pertinent to mention here that while proceedings with regard to final decree were in progress in the court, a miscellaneous application dated 21.09.1970 was addressed to it by one of the defendant namely Hassan Din from Karachi, stating therein if there is any case against him, he may be intimated at his address recorded in his petition. The learned Presiding Officer vide order dated 24.09.1970 directed that it to be placed on record to be presented on the date fixed for hearing of the case.
3. After final decree the execution proceedings were taken out by the mortgagees and the house was put to auction on 23.06.1971. The decree-holders applied to the court for being permitted to purchase it at the auction, which permission was granted and they purcha sed it for Rs. 7370/- and a court certificate of auction sale was issued to them on 31.07.1971. The property was sold by the auction purchasers vide mutation No. 3914 attested on 27.09.1973 to Hafiz Ghulam Kibria for a sum of Rs. 30000/- and purchasers claimed to have invested huge amount over its repairs and improvements.
4. On 23rd of November 1978, Hassan Din, the judgment debtor moved an application for setting aside exparte judgment and decree obtained by the mortgagees, who happened to be auction purchasers, it was set aside on 25.10.1980. Three revisions were filed against that decision setting aside the exparte decree. One of the revision petition (civil revision No. 54/CR of 1980) was filed by Hafiz Abdul Salam etc, the subsequent vendees from the auction purchasers. The learned Additional District Judge, Haripur dismissed all the three revisions petitions on 25.01.1982. Not contented with the order of the Additional District Judge, petitioner Abdul Salam and others knocked at the door of this court, vide order dated 27.11.1984 this court provided relief to them in the following words: "Thus, without entering deep into the merits of the evidence, we will accept the writ petition on the grounds mentioned above, set aside the impugned orders and in result, direct that the petitioners be impleaded as party to the original application (for setting aside the exparte decree). They be afforded opportunity to plead their case and prove it by evidence. Other parties to the application would be well advised to produce evidence in support of their respective claim. Let it may be clear that we have purposely avoided to give any finding with regard to the objection of limitation, on order to avoid to prejudice the case of any one of the contesting parties and further as it is required to be decided on the basis of the material to be made available in result of the instant order . Parties are directed to appear before the lower court on 9-1-85 for further proceedings in the light of our order ."
5. Being aggrieved of the judgment of this court, Hassan Din filed civil appeal No. 100 of 1985, before the August Supreme Court of Pakistan, which was dismissed on 20th of November , 1990. It would be appropriate to reproduce the relevant portion of the judgment for ready reference: "The effect of the judgment given by this court in Noor Muhammad' s case, on the basis of which leave to appeal was granted, is not that a constitution petition is in no case permissible whatever the nature of the effect in the proceedings before the District Judge be, but that a mere illegality committed with jurisdiction shall not be a ground for entertaining a constitution petition. Herein, it is not so much the question of a mere irregularity committed with jurisdiction, but exercise of jurisdiction not possessed in the matter of re-opening the auction sale by setting aside the exparte decree and thereby jeopard izing the rights of the respondents in the valuable immovable property bonafide purchased from the decree-holder who happened to be auction-purchaser as well. The appeal is, therefore, dismissed. No order is made."
6. Whereafter , the learned Civil Judge, Haripur , recorded evidence of the parties and after providing an opportunity of hearing accepted the application and set aside the impugned exparte judgment and decree vide judgment dated 08.09.1992. Dissatisfied with the same, petitioner filed revision petition before the learned Additional District Judge, Haripur , which was dismissed on 26.06. 1996 again, the mater was brought to this court through constitutional petition No. 147 of 1996, which was allowed and the impugned orders dated 8.09.1 992 and 26.09.1996, passed by the learned Civil Judge and Additional District Judge, Haripur respectively , was set aside. The matter was finally taken before the apex court through C.A No. 23 of 2000, which was accepted on 13th of November 2002, and following relief was given to the appellant Hassan Din : "For the foregoing reasons, this appeal is accepted, judgment of the High Court is set aside and those of the two Courts below restored. It would be open to respondents No. 1 to 4 to prove that sale made in their favour by the decree holder and also the purchase by the decree holder of the same in execution of the decree, was bona fide and were not af fected adversely even through exparte has been set aside."
7. After final adjudication of the lis,Hassan Din and Haji Ghulam Sarwar , brought civil suits against each other seeking therein declaration, foreclosure and possession through redemption. The suit filed by the Mortgagor stood decreed as preliminary while suit of the mortgagees seeking declaration and foreclosure culminated in dismissal through a consolidated judgment dated 15.11.2003. Not contented with the same, the parties filed separate appeals in the court of Additional District Judge-III, Haripur the learned appeal court after hearing the parties, dismissed appeal No. 1/13 (filed by Hassan Din and 14/13 filed by Hafiz Abdul Salam and others and partially accepted the appeal No. 101/13 filed by Ghulam Basit and the impugned judgment and decree to the extent of Rs.
30,000/- stood set aside through a consolidated judgment dated 28.04.2007, hence, this revision petition.
8. It was argued by the learned counsel for the petitioners that the impugned judgments and decrees of the learned lower fora are illegal, and in conflict the provisions contained in Rule 89 and 90 of Order XXI CPC, therefore, the same are liable to be set aside and case needs to be remanded back for decisio n a fresh; that the suit property was put to auction by the learned executing court, which was purchased by the decree holders / mortgagees, and sale was confirmeed in favour of the auction purchaser / mortgagees followed by sale certificate duly issued by the court; that after confirmation of sale, it was sold to one Hafiz Ghulam Kibria / respondent No.1 for a sum of Rs.
30,000/-; that a valid sale in execution would not became invalid to the prejudice of the auction purchaser merely for the reason that the decree had subseq uently been set aside, unless and until provision contained in Rule 89 of Rule XXI is resorted to.
9. Conversely , the learned counsel representing the contesting respondent argued that the impugned judgment and decree passed by the learned lower fora are well reasoned and based on proper appreciation of evidence on record, therefore, needs no interference; that the impugned auction took place on the basis of exparte judgment and decree, which has been wiped out, hence, the entire proceedings carried out on the basis of the said judgment and decree is also nullify in the eye of law .
10. I have heard learned counsel for the parties at great length and have also minutely perused the record with their imminent assistance.
11. This case has got chequered history spread over more than five (05) decades. However , the sole question for determination before me is that whether sale of immovable property in execution of a decree followed by a court certificate of auction sale would became invalid to the prejudice of auction purchaser merely for the reason that decree had subsequently been set aside that too without resorting to the provisions contained in Rules 89 to 91 of Order XXI CPC?
12. Before addressing the question formulated hereinabove, the following admitted facts with brevity are being noted. i. The property in dispute belonged to Hassan Din. ii. He had mortgaged this property with Haji Ghulam Kibria and Haji Ghulam Sarwar vide registered deed of mortgage dated 07.01.1961 for Rs. 5,000/-. iii. On failure of the mortgagor to redeem the suit house, the mortgagees instituted suit No. 14/1 on 09.01.1969 seeking therein declaration to the effect that in the facts and circumstances they were entitled to recover mortgaged amount and arrear of rent through sale by auction of the mortgaged property . iv. The suit of the mortgagees was decreed (preliminary) exparte vide judgmen t dated 28.03.1969 and finally exparte decree was passed on 17.1 1.1970. v. After final decree the execution proceedings were taken out by the mortgagees and the suit house was put to auction on 23.06.1971. vi. The decree holders participated in the auction proceedings with the permission of the court, and purchased the same and a court certificate of auction sale was issued to them on 31.07.1991. vii. The property in dispute was sold by auction purchasers vide mutation No. 3914 attested on 27.09.1973 to Hafiz Ghulam Kibria for a sum of Rs. 30,000/-. viii. On 23rd of November 1978 Hassan Din / Judgment-debtor moved an application for setting aside exparte judgment and decree obtained by the mortgagees, who happened to be auction purchasers, and it was set aside on 25.10.1980. ix. Revision Petitions filed against the order dated 25.10.1980 was maintained by the learned Additional District Judge, Haripur on 25.01.1982. x. The order of revisional court was assailed through constitutional petition before this court, which was accepted on 27.11.1984 and impugned orders of the learned lower fora was set aside and case was remanded back to the learned trial court for decision a fresh after providing the parties an opportunity of hearing. xi. The judgment of this court was assaile d before the Hon'ble Supreme Court through C.A No.100 of 1985, which was dismissed on 20th of November 1990. xii. After judgment of this court, upheld by apex court, the learned civil judge set aside the impugned judgment and decree vide judgment dated 08.09.1992. xiii. This order was assailed before the learned Additional District Judge by way of filing revision petition, which was dismissed on 26.06.1996. xiv. The matter was again brought before this court through constitutional petition which was accepted and impugned orders dated 08.09.1992 and 26.09.1996 was set aside. xv. The matter was finally taken before the Hon'ble Supreme Court through C.A No.23 of 2003, which was accepted and impugned judgment passed by this court was set aside. xvi. After final adjudication of 2nd round of litigation, Hassan Din and Haji Ghulam Sarwar brought civil suits against each other , seeking declaration, foreclosure and possession through redemption. xvii. The suit filed by the mortgagees seeking declaration and foreclosure culminated in dismissal while suit filed by mortgagor stood decreed vide consolidated judgment dated 15.11.2003. xviii. Bearing aggrieved of the said judgment, parties filed separate appeals, the learned appeal court, after giving the parties right of audience dismissed the appeal No. 19/13 (filed by Hassan din and 14/13 filed by hafiz Abdus Salam and others and partially allowed the appeal No. 101/13 filed by Ghulam Basit and impugned judgment and decree to the extent of Rs. 30,000/- stand set aside vide consolidated judgment and decree dated 28.04.2007, which necessitated to file the instant revision.
13. Now adverting to the question, it may be advantageous to take into conside ration the relevant provisions of Code of Civil Procedure. So far as sale of immovable property in execution of a decree is concerned, there are some special provisions in Order XXI starting with Rule 82 and ending with Rule 103. If a sale had been validly held, an application for setting aside can only be made under provisions of Rules 89 to 90 of Order XXI. The Provisions of Rule 89 are in the nature of indulgence to the judgment debtor they give a last chance of getting the sale set aside before confirmation upon the terms of satisfying the decretal debt and of paying compensation to the auction purchaser for the loss of bargain, whereas Rule 90 provides setting aside sale in execution of decree on the ground of irregularity or fraud in conducting it. Under this rule it is necessary to prove that the applicant had sustained substantial injury by reason of such irregularity or fraud, further no such application can be entertained unless amount not exceeding 20 % of the sum realized at the sale or security alike is deposited. Rule 90 can be resorted to only the decree holder and person entitled to any share in the property or whose interest therein is affected by such sale by asserting some material irregularity or fraud in conduct of auction is shown. Under Rule 91 a purchaser has the right to move an application to set aside sale on the ground that the judgment debtor had no saleable interest in the property sold. Under Sub-rule (2) of Rule 92, the court is obliged to pass an order setting aside the same if a proper application under Rule 89 is made accompanied by a deposit within 30 days from the date of sale.
14. Section 65 of the Code of Civil Procedure provides that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the date when sale becomes absolute. In this respect reference may be made to the case reported as Muslim Commercial Bank through Manager / General Attorney V Fashion Pride (Private) Ltd through Chief Executive and 5 others (2016 CLD 124). The result is that the purchaser title relates back to the date of sale and not the confirmation of sale. The Code of Civil Procedure provides a full mechanism, which has to be followed in cases of sales of property in execution of a decree. It also provides how and what manner such sales may be set aside. It is by now settled that when law requires a thing to be done in a particular manner , then it would be nullity in the eye of law, if not done in that very prescribed manner . In this respect reference can be made to the cases reported as Muhammad Akram V Mst. Zainab Bibi (2007 SCMR 1086 ) and Asghar Ali Khan & 4 others V Janan & 15 others (2017 YLR 301). There is no provision in the Code of Civil Procedure, 1908 either under Order XXI or elsewhere, which provides that sale is automatically wiped out, if it be found that the decree under which the sale was ordered has been set aside, without resorting to Rule 89 to 91 CPC. In this respect reference may be made to the case reported as Birdichand V Ganpatsao, AIR 1938 Nag 525, wherein it was held that it did not matter that sale had not been confirmed at the date of reversal of the decree unless there was successful application under Rules 89, 99 or 91 of Order XXI. In the present case the sale had not only been confirmed but a court certificate of sale was also issued. In this context reliance can also be placed on the judgment report as Ambujamman V Thangaullah chattier , AIR 1941 Mad 399, wherein it is was observed as under:- "There is no provision in the Code for the cancellation of a sale merely because of the cancellation of decree and though it is in accordance with justice that a person who has succeeded in appe al should get from the opposite party such restitution as is possible, there is no principle of justice whereby an innocent third property who has purchased in a valid auction held by the court should be deprived of his property , merely because the decree under which the sale was held has been cancelled in appeal. On general principles the judgment debtor can look to the decree holder to give restitution wherein the decree has been set aside in appeal, but there is no general principle which would give him a similarly right to look to a third property who has for good consideration purchased the property sold through court."
15. In this behalf reliance can also be placed on the following case laws:-
(1) S.Chokalingam Vs N.S.Kirighna AIR 1964 Mad 404 ,
(2) Mani Lal V Ganga Prasad AIR 1951 All 832,
(3) Muslim Commercial Bank through Branch Manger/General Attorney V Faisalabad Pride (Private) Ltd, through Chief Executive and 05 others 2016 CLD 124 .
(4) Dr.Mrs Zulaikha Mahmood V Presiding Of ficer Banking Court No.1 Karachi and 04 others 2003 CLD 550 .
(5) Mst. Hanijan Bibi V Lal Din through legal heirs and another 2000 CLC 572 .
(6) Merrs Habib and Company and others V Muslim Commercial Bank Limited and others 2019 SCMR 1453 .
(7) Hudaybia T extile Mills Ltd and others V ABL Ltd and others PLD 1987 SC 512 .
16. Both the learned lower fora even failed to attend to the observations made by the Honourable Supreme Court in Civil Appeal No.23 of 2010 decided on 13.11.2002, wherein it was held that sale made in favour of the purchaser by the decree holder and also purchased by the decree holder of the same in execution of the decree, was bonafide and was not af fected adversely even though ex-parte decree has been set aside.
17. It will not be out of place to mention here that in the process of administration of justice the litigants should not be knocked out on technical grounds, however , certain provisions of law are of vital procedural significance and if they are not followed in letter and spirit, there would be little possibility of a conclusive trial of a civil case and process might suffer on account of unbridled exercise of discretionary empowerment of the courts. Non- observance of procedural law would create impediment on the way of fair trial, which is against the purpose and object of law (especially procedural law). Adherence to such provisions in letter and spirit and the mandate of law to be followed can hardly be termed as mere "technicalities" on account of which it might ultimately be held that no one should be knocked out for such techn icalities. In this respect reference may be made to the cases reported as Muhammad Asghar V Hussain Ahmed (PLD 2014 SC 89), Manager , Jammu & Kashmir , State property in Pakistan Vs Khuda Yar (PLD 1975 SC 678) and Imtiaz Ahmad Vs Ghulam Ali (PLD 1963 SC 382 ).
18. Having seen the case from all angles, I found that both the courts below without resorting to the legal provisions highlighted hereinabove, drew a wrong conclusion and nullified a valid sale in execution merely because the decree has been wiped out, which resulted in gross miscarriage of justice, calling for interference.
19. Before parting with the judgment, it is observed that although I have quoted some judgments where right of the auction purchaser in circumstances similarly to the case before me was discussed or the right of a purchaser , in regard to a sale held after setting aside of the decree was touched upon, my judgment must not be taken as adjudication upon any of these points.
20. For reasons recorded above, this revision petition is partially allowed and the impugned judgments and decrees dated 15.11.2003 and 28.04.2007 passed by the learned trial judge, Haripur and learned Additional District Judge- III,Haripur respectively to the extent of setting aside the auction and sale of the suit property are set aside, leaving the respondent at liberty to move an application for setting aside the same as discussed hereinabove, if so desired.
The learned trial court is directed to decid e such application, if moved, at the earliest being an old matter , but not later than three months by holding day to day proceedings. The rest of the judgments and decrees of the learned lower fora shall remain intact, being not questioned by the petitioners.