TARIQ SALEEM SHEIKH, J. Respondent No.1 was married to the Petitioner and out of the wedlock two children (Respondents Nos.2 and 3) were born. Respondents Nos. 1 to 3 instituted a suit for recovery of maintenance allowance against the Petitioner in the Family Court at Okara which was decided vide judgment and decree dated 24.12.2011. Respondent No.1 was held entitled to receive Rs.15,000/- for the period of Iddat while the maintenance of Respondents Nos. 2 and 3 was fixed at the rate of Rs.7000/- each per month from the date of institution of the suit till their legal entitlement with 5% annual increase. The Additional District Judge, Okara, upheld the said decision in appeal vide judgment and decree dated 17.5.2012. The Petitioner filed Writ Petition No.16101/2012 there against in this Court which was disposed of in terms of consent order dated 19.2.2015 by which the maintenance allowance of Respondents Nos.2 and 3 was reduced to Rs.6000/- each per month with 10% annual increment from the date when it was awarded.
2. Respondents Nos. 1 to 3 filed a petition for execution of the decree. The Petitioner made various payments from time to time but the decree was not satisfied and his debt continued to mount. The Executing Court directed auction of the Petitioner's agricultural land situated at Chak No.32/2R (the "Property") which was duly conducted on 17.5.2013. Zareena Siddiqui widow of Tasleem Ahmad, who offered Rs.10,50,000/- for the Property, was declared the highest bidder and she deposited Rs.136,500/- out of her purchase-money with the Court Auctioneer which he made over to the Executing Court. It appears that at that time some money was already lying with it on the Petitioner's account. On 31.5.2013 Respondents Nos.2 and 3 moved an application to the Executing Court for withdrawal of Rs.144,000/- (which included the partial bid amount deposited by Zareena Siddiqui as aforesaid) which was allowed the same day and Respondent No.1 received it on their behalf. This was despite the fact that the office raised an objection that Zareena's money was a trust and not available for disbursement. Subsequently the lady could not arrange the balance purchase price owing to which the Executing Court forfeited her deposit of Rs.136,500/- vide Order dated 1.10.2013 and directed re-auction of the Property.
3. The second auction was held on 8.3.2014 in which Muhammad Aslam son of Nazeer Ahmad succeeded. He offered Rs.10,70,000/- for the Property out of which he deposited Rs.262,500/- (1/4 of the bid amount) with the Court Auctioneer at the fall of hammer in accordance with the terms of auction. The remaining sum of Rs.807,500/- was payable by 22.3.2014 but he also defaulted.
Resultantly, the Executing Court forfeited his deposit vide Order dated 24.3.2014. Respondents Nos.2 and 3 moved an application for withdrawal of Rs.262,500/- The Executing Court deducted auction expenses in the sum of Rs.7000/- from the deposit and vide Order dated 25.3.2014, directed Rs.255,500/- to be paid to them which Respondent No.1 received the same day. In this way Respondents Nos.2 and 3 got Rs.399,500/-[1] which forms the subject-matter of this petition.
4. On 2.9.2020 when the Executing Court geared up for third auction of the Property, the Petitioner submitted an application stating that a total sum of Rs.27,17,159/- was due under the decree out of which Respondents Nos. 1 to 3 had received Rs.22,63,800/- and only Rs.522,173/- were outstanding.
He sought permission to pay that sum in full and final settlement of the decree. Respondents Nos.1 to 3 contested that application and submitted that the Petitioner had wrongly adjusted Rs.399,500/- (mentioned as Rs.400,000/- in the written reply of Respondents Nos.1 to 3 as well as the subsequent court orders) received by them as detailed above. Respondents Nos.2 and 3 contended that they were entitled to the forfeited amount and the Petitioner could not claim any set-off against it. The Executing Court upheld their, contention vide Order dated 20.1.2021. The Petitioner filed revision there against which was dismissed by the Additional District Judge vide Order dated 17.3.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner assails the vires of orders dated 20.1.2021 and 17.3.2021, supra.
5. Arguments heard. Record perused.
6. Order XXI, Rule 84, C.P.C. stipulates that whenever an immovable property is auctioned the person declared to be the purchaser shall, immediately after such declaration, pay 25% of the amount of his purchase-money to the Court Auctioneer and in default thereof the property shall be re-sold forthwith. It appears that this condition was violated when the first auction was held because Zareena Siddiqui deposited only Rs.136,500/- with the Court Auctioneer although her bid was in the sum of Rs.10,50,000/-. Anyway, nothing turns on it as this is not the issue before this Court in these proceedings.
7. Order XXI, Rule 85, C.P.C. enjoins that the auction purchaser shall pay the full amount of the purchase-money payable by him into the court by the fifteenth day from the sale of the property.
Rule 86 sets out the consequences of default. It reads:
86. Procedure in default of paym ent.---In default of payment within the period mentioned in the last preceding rule the deposit may, if the court thinks fit after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.
8. It may be noted that under Rule 86, supra, the court may, if it thinks fit, after defraying the expenses of the sale forfeit the deposit of defaulting purchaser to the Government. In the present case, record reveals that the Executing Court did invoke Rule 86 and forfeited the deposits of Zareena Siddiqui and Muhammad Aslam. Although the orders dated 1.10.2013 and, 25.3.2014 have only used the word "forfeited" instead of "forfeited to the government", the intention is clear that the forfeiture was in favour of the government. Thus, the forfeited amount belonged to the government and neither the Petitioner nor Respondents Nos.1 to 3 had any right or interest therein.
Consequently, the Executing Court had no jurisdiction to make it over to Respondents Nos.2 and 3.
9. At this stage the Petitioner as well as Respondents Nos. 2 and 3 claim right over the forfeited money. Their claim is not only contrary to Order XXI, Rule 86, C.P.C. but also the principle of unjust enrichment. This cannot be permitted.
10. On principle, Respondents Nos. 2 and 3 should be directed to return the money unlawfully paid to them but it may be extremely difficult, if not possible, for them at this point in time. Since Respondents Nos.2 and 3 are entitled to recover that amount from the Petitioner, the account would be settled if the Executing Court recovers that sum from him and pays to the government.
11. In view of the above, the impugned orders dated 20.1.2021 and 17.3.2021 are set aside. The Petitioner shall pay whatever amount is due to Respondents Nos.1 to 3 under the decree. Besides, he shall pay the amount of the forfeited deposit into the Executing Court, which shall be deposited in the government treasury. The Petitioner shall do the needful within 30 days from the date of this order and if he defaults the Executing Court shall forthwith initiate proceedings for the auction of the Property. The sale proceeds shall be apportioned subject to this order.[2]
12. This petition is dismissed with the above directions.
1. This figure is correct because the acknowledgement of Respondent No.1 is available on record.
However, as adumbrated, this is more than the amount which Zareena Siddiqui and Muhammad Aslam forfeited in aggregate. It is also to be ascertained whether any auction expenses were defrayed from Zareena's deposit.
2. I have intentionally avoided giving figures in this paragraph because the available record has some conflicts. The Executing Court shall calculate them after consulting the original accounts.