1. This order will dispose of application (CMA 6891/88) moved under Order 21, Rule 94 of C.P.C. By defendants Nos.1, 3,6,7, and 9 for "Sale Certificate".
2. Moosa son of Ibrahim Sorthia died on 21-8-1971 leaving behind immovable property bearing premises No.G-1 of Plot No.NP.2/28/11H, Syed A.I Lane, Napier Quarters, Karachi, where he used to run Mossa Ibrahim Oil Mills, Mossa Ibrahim Oil Depot and Oil Depot attached with said Mill and a shop of Gold Smith. Apart from this a part of said property was used by the deceased for his residential purposes. At the time of his death deceased Moosa left behind, five sons viz. Plaintiff Ahmed A.I and defendants Nos.1 to 4, one widow viz. Defendant No.5 and four daughters shown as defendants Nos.6 to 9. Plaintiff Ahmed A.I filed Suit No.1078/78 for administration of the estate of the deceased.
3. During the pendency of the suit, defendant No.5 poor pai died, and her share devolved upon her children, who were already parties to the suit. Ultimately a preliminary decree was passed in the suit on 21-2-1984. While passing the preliminary decree a learned Single Judge of this Court appointed Nazir of this Court as Commissioner to inspect the property left by the deceased with help of an expert to find out if the same was capable of being partitioned. The Nazir did the needful and he was assisted in his job by a firm of Architect. The Nazir submitted his report to the effect that the immovable property in Sarrafa Bazar cannot be partitioned his was also the view of the Architect who submitted such report dated 30-4-1984. Consequently while passing final decree in the suit on 31-1-1985 my learned brother Mr. Nasir Aslam Zahid, J. Ordered that the Sarrafa Bazar property would be auctioned through public auction in accordance with the Rules of this Court.
4. Such auction was held on 25-3-1986 when Mohammad Saleem and Jan Mohammad gave highest bid of Rs.14, 25,000. They deposited Rs.3,56,250 on 25-3-1986 and the balance on 7-4-1986. In the meantime on 1-4-1986 defendants Nos.1, 3,6,7, and 9 moved an application under Order 21, Rule 89 of C.P.C. For cancellation of the auction and for transfer of the property to them. Learned Single Judge, before whom this application was moved, referred the matter to his Lordship the Chief Justice for forming a Division Bench to consider the question, whether the provisions of Order 21, Rule 89 of C.P.C. Would apply to all auctions sales and whether such provisions would not apply to the auctions sales held in partition suits or in administration suits. This point was resolved by a learned Division Bench of this Court on 18-2-1988. The matter was however, taken to the Supreme.
5. Court of Pakistan which remanded opinion of the Divisions Bench Dated 18-2-1988. After remand, the matter was again heard in this Court and view taken was that the principle contained in Order 21, Rule 89 can be pressed into service for sales under the Partition Act, if the facts of the case so warranted. It was also observed that a plaintiff or a defendant, in an administration suit acquiring a share in any immovable property on the death of his predecessor-in-interest, was entitled under the law to move an application for setting aside the Court auction of such property under Order 21, Rule 89 of C.P.C. After taking such view, my learned brother Mr. Nasir Aslam Zahid, J. Under his order dated 16-5-1988 accepted the applications (CMA 1735/86 and 2253/86) and in this way the auction held on 25-3-1986 stood cancelled. The defendants Nos.1, 3, 6, 7 and 9 deposited in Court on 23-4-1986 the pay order of the value of Rs.7,12,500 which was half of the amount of consideration as per the auction held on 25-3-1986. Hence the defendants Nos.], 3,6,7 and 9 have moved present application (CMA No.6891/88).
6. I have heard Mr. Fade Ghani Khan, Advocate for defendants Nos. 1,3,6,7 and 9 and Mr. Abdul Hameed Samo Counsel for defendant No.2.
7. It has been stated at the bar that plaintiff Ahmed A.I is no more interested because he had already collected his share of the sale proceeds. That the auction purchaser, namely, Mohammad Saleem and Jan Mohammad had also withdrawn the amount deposited by them in pursuance of the auction and they had also been paid 5% of the auction price as per Order 21, Rule 89 (1) (a) of C.P.C.
8. Learned counsel for tile defendant No .2 did not rebut the facts given by Mr. Fazle Ghani Khan.
9. Order 21, Rule 94 of C.P.C. Says that when sale of an immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be purchaser. In my view the present application is mis-conceived. The provisions contained in Order 21, Rule 94 C.P.C. Could be invoked by the auction purchasers.
10. Admittedly the defendants Nos. 1,3,6,7 and 9 are not the auction purchasers. Rather they are co- sharers in the property in question. In the present case the said defendants could have applied for delivery of possession of the property to them under Order 21, Rule 95 of C.P.C. Consequently present application is rejected as misconceived.
11. M.A.K./A-581/K