1. ' These above-noted two applications are fixed today for hearing. The first application is filed by defendants 1, 3, 6, 7 and 9 under Order 21, Role 95, C.P.C. With the prayer that vacant possession of the property sold to them may be handed over through Nazir of this Court. The second application is filed by Defendant No,2 under Order 39, Rules' 1 and 2, C.P.C. For a temporary injunction restraining the Defendants from constructing the house, shop, walls and white-washing them till the disposal of the application. The background of the case may be stated as follows:- ' A suit for administration of the properties of deceased Moosa son of Ibrahim was filed by the plaintiff abovenamed. In the above suit the parties were the widow, sons and daughters of deceased Moosa son of Ibrahim. One of the properties left behind by the deceased Moosa son of Ibrahim was property bearing No,NP2/28/11-H, G-1 situated in Napier Quarters, Karachi. After a preliminary decree in the case, on. 31-1-1985 a final decree was passed and the above property was directed to be sold through public auction and its sale proceeds were ordered to be distributed among the Plaintiff and the Defendants who were the legal heirs of late Moosa son of Ibrahim. The Plaintiff and the defendants in the suit were also allowed to participate in the auction ordered by the Court, if they so desired. The auction was held on 23-5-1986 and the highest bid of Rs,14,25,000 made by Muhammad Saleem and Jan Muhammad was accepted by the Nazir and was placed for confirmation before the Court. While the above bid of auction-purchaser was pending confirmation by the Court, Noor Muhammad, Usman Ghani, Mst. Sharifa, Mst, Rabia and Mst. Zubaida Bai, all Defendants in the suit, filed three ,applications under Order 21, Rule 89, C.P.C.
2. Praying that they may be permitted to deposit a sum equal 5% of the sale price for payment to the auction-purchaser and that the sale in favour of auction-purchaser be cancelled: and for the same amount the property be sold to them by delivering vacant possession of the same. It appears that the learned Judge, who dealt with the above application entertained doubt as to the applicability for provisions of Order 21, Rule 89, C.P.C. To sale conducted by the Court in a suit for administration . Accordingly a reference was made to the Hon'ble Chief Justice for placing the matter before a larger Bench for decision. The matter was thereafter, heard and decided by a Division Bench of this Court but on appeal before the Supreme Court the order of Division Bench was set aside and the case was remanded to the Division Bench for reconsideration in the light of the decision of the Supreme Court in the case of Ellahi Noor v. Din Muhammad PLD 1977 SC 3464. On remand of the case, the Division Bench heard the matter and reached the conclusion that the principles contained under Order 21, Rule 89, C.P.C. Could be applied to a sale conducted by the Court in a suit for administration. Accordingly, when the case came up before the learned Single Judge for confirmation of the auction sale, the learned Single Judge, declined to confirm the sale in favour of auction-purchaser and directed that 5% of the total sale consideration deposited by the above Defendants alongwith the bid money deposited by them be paid to the auction-purchasers and the property was sold to defendants 1, 3, 6, 7 and 9 for the same amount. The defendants 1, 3, 6, 7 and 9 accordingly deposited the sale price of property in Court which was ordered to be distributed among all the legal heirs of deceased excluding the Defendants who had offered to purchase the property at the price for which it was sold to the auctionpurcahser and who had also deposited 5% of the total sale consideration for payment to the auction-purchaser. It is an admitted position in the case that A persuant to the order of the learned Single Judge dated 15-5- 1988 not only the 5% compensation amount deposited by the applicants alongwith interest and profits accrued thereon were paid to the auction-purchaser but that amount of Rs,7,12,500 which they deposited towards the balance price of the property was withdrawn by the plaintiff and other defendants in the suit. After the aforesaid payment to the other parties in the suit the applicants applied to the Court for grant of a sale certificate under Order 21, Rule 94, C.P.C. Which was declined by the Court by order dated 12-1-1989. However, while declining the issue of a sale certificate to the applicants on the ground that it was not an auction sale the learned Judge observed that the applicants could make an application under Order 21, Rule 95, C.P.C. It is also not disputed that against the above order of learned Single Judge declining to grant sale certificate in favour of applicants a H.CA. No,60/89 was filed which was later on withdrawn by them. However, in the meantime the applicants also filed an application under Order 21, Rule 95, C.P.C. As directed in the order of the learned Single Judge, dated 12-1-1989 which has now come up for hearing.
3. ' Mr. Muzaffarul Haq, and Mr. Abdul Hamid Samo, learned counsel for the Plaintiff and defendant No,2 respectively opposed the application under Order 21, Rule 95, C.P.C. On the ground that as no sale certificate has been issued in favour of the applicants as required under Order 21, Rule 97, C.P.C. The present application is not maintainable. It is also contended by the learned counsel that mere confirmation of sale in favour of applicants does not entitle them to apply for possession of the property. Learned counsel for the applicants on the other hand maintained that as the learned Single Judge while declining to grant sale certificate to the applicants under Order 21, Rule 94, C.P.C. Had observed that the applicants could file application under Order 21, Rule 95, C.P.C., such objection cannot be raised by the present plaintiff and Defendant No,2 who had never challenged the aforesaid order. It is not necessary to decide this controversy in the case as from the narration of facts it is quite clear that at the time of making application under Order 21, Rule 89, CPC. By the present applicants they had not only prayed that auction in favour of auction-purchaser be set aside on payment of amount mentioned in Rule 98 of Order 21, C.P.C. But the sale for equivalent amount be confirmed in their favour and vacant possession of the property be delivered to them.
4. No opposition was made at that time by the present objectors and it was allowed after the Court reached the conclusion that provisions of Order 21, Rule 89, C.P.C. Were applicable in the present circumstances of the case. This being the position it is hardly open to any one of the parties to the suit now to object that they are not bound .To deliver possession of the property to the applicants.
5. Apart from it, it is also an admitted position that the entire sale consideration -deposited by the applicants have been withdrawn by the Plaintiff and Defendant No,2 and other remaining defendants who are not contesting this application, alongwith profits accrued thereon. In these circumstances I am unable to accept the contention of the learned Counsel for the Plaintiff and defendant No/ that the applicants are not entitled to get vacant possession of the property. I accordingly allow the application and direct the Nazir of this Court to hand over vacant possession of the property to the applicants. There will be no order as to the costs. In view of the above order the application filed by defendant No,2 is dismissed.