Through instant revision petition, petitioner has challenged the vires of judgme nt dated 6.3.2013, passed by learned Additional District Judge, Bahawalpur , whereby respondent's appeal against order dated 31.1.2012, passed by learned Civil Judge, Bahaw alpur , was allowed and application under Section 144, CPC, filed by respondent was accepted.
2. Brief facts of the case are that Sardar Muhammad Aslam filed a suit for rendition of accounts against respondent. After initiation of ex-parte proceedings against respondent, a preliminary decree was passed on 8.3.1994 and final decree was passed on 17.11.1994. During execution of said final decree, 1/3rd of a vacant plot measuring 12 x 100 Sq.Ft = 63/4 Marla of House No. 834/B-IV , situated in Zanana Hospital Road, Bahawalpur , owned by the respondent, was auctioned, which was purchased by the auction-pur chase/petitioner . Sale certificate was issued in petitioner's favour and pursuant to his application, possession of said property was also handed over to him on 13.7.1995, whereof execution petition was consigned to record having borne fruit. Later on, respondent field application under Section 12(2), CPC for setting aside aforesaid preliminary decree as well as final decree, which was allowed by learned trial Court and revision petition, filed by plaintif f/decree-holder Sardar Muhammad Aslam, was dismissed. During pendency of the suit, respondent filed application under Section 144, CPC through his attorney Muhammad Akhtar for restitution of possession of the property in dispute which petitioner had obtained during execution of final decree. Said application was contested. Learned trial Court, after hearing arguments of both sides, proceeded to dismiss the application vide order dated 31.1.2012. In appeal, learned Additional District Judge allowed application under Section 144, CPC and directed the petitioner to hand over possession of disputed property to respondent. Hence, instant petition.
3. Learned counsel for petitioner submits that petitioner is a bona fide purchaser for value and as such, is an auction-purchaser , who received possess ion of the property in question after issua nce of sale certificate by learned Executing Court, hence, impugned judgment directing restitution of the property in dispute, having been passed without any lawful justification, is unsustainable in the eye of law. In support, he has referred to Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others (PLD 1987 Supreme Court 512), Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 Supreme Court 65), Mumtaz-ud-Din Feroze v. Sheikh Iftikhar Adil and others (PLD 2009 Supreme Court 207), Messrs Habib and Company and othe rs v. Muslim Commercial Bank Limited and others (2019 SCMR 1453 ), Messrs Habib and Company and other s v. Muslim Commercial Bank Limited and others (PLD 2020 Supreme Court 227), Hafiz. Abdul Salam v. Hassan Din (2020 YLR 2297 ), Pearvey Lal v. Hanifunnissa Bibi and another (34 I.C. 303 Allahabad High Court) and R. Raghavachari v. M.A.
Pakkiri Mahommed Rowther and others (34 I.C. 760 Madras High Court).
4. Conversely , learned counsel for respo ndent defends the impugned judgment. In support, he has relied upon Khalid Rasool and 2 others v. Muhammad Sharif and 2 others (1987 CLC 253), Mst. Imtiaz Bibi, etc. v. Mr. Abdul Qadir Shad, Additional District Judge, Lahore etc. (1998 CLJ 354), Mst. Sultan Bibi and 25 others v.
Gul Baran and others (PLD 1999 Quetta 56), Barkat Ali v. Additional District Judge, Faisalabad and 5 others (PLJ 2001 Lahore 153), Parvaiz and 4 others v. Muhammad Ramzan and 5 others (2009 CLC 513), University of Health Sciences and others v. Mumtaz Ahmad and another (2010 SCMR 767), Province of Punjab through Collector and others v. Muhammad Saleem and others (PLD 2014 Supreme Court 783), Muhammad Atif lqbal and others v. Zeeshan Ali and others (2020 CLC 1813 ) and Sri Lakshmi Narayan and others v. Sri Surath Lal Chakraborti and others (PLD 1964 Dacca 177 ).
5. Heard. Available record perused.
6. Although Section 144, CPC is based on the principle that act of the Court should not injure rights of any person however , it is well-settled that with the holding of sale; third party interests intervene which cannot be disregarded and a valid sale in execution would not become invalid to the prejudice of the auction purchaser because the decree has been wiped out or reversed in the meantime.
Distinction has to be drawn between decree-holder who comes to purchase under his own decree and bona fide purchaser who comes and gets sale in execution of decree to which he was not party . Where third party is bona fide auction-purchaser , his interest in sale of auction has to be protected. The question whether restitution can be obtained under Section 144, CPC against a bona fide purchaser for value at an auction sale held by a Court, which has jurisdiction to hold the same needs to be determined by learned Appellate Court. Reliance is placed upon the cases of Hudaybia Textile Mills Ltd., Hassan Din, Mumtaz ud Din Feroze and Messrs Habib and Company supra.
7. Learned Appellate Court has not thrashed out the above important aspect of the matter , which renders the impugned judgment non-speaking, being against the mandate of Section 24-A of the General Clauses Act, 1897.
There must be something in the order or judgment itself to show that the Court concerned was conscious of the each and every aspect of the matter and had applied its mind to the questions of prime importance.
8. In view of the above, instant petition is allowed and impugned judgment is set aside. The case is remitted to learned Appellate Court with direction to re-decide the same through a well-reason ed speaking judgment, strictly in accordance with law as well as case law referred supra, preferably within a period of thirty days from the date of receipt of certified copy of this order . Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).