1. ' By this order I intend to dispose of the reference made by the Official Assignee and the application C.M.A. No, 4 of 1994 moved by the L.Rs, of Defendant No, 1.
2. ' Briefly the facts are that the suit for administration has since been decreed and an order was passed earlier on 7-1-1981 whereby certain suit properties were ordered to be disposed of. In the said order it was directed by consent of the parties that all the parties to the suit may also submit their offers for the bungalow as well as for the three cars, if they so desire, in sealed cover within one week to the Official Assignee which offers will be placed in Court and opened for acceptance. It was also agreed by the parties that in case of the acceptance of any such offer the balance of consideration after deduction of the share of such person as given in preliminary decree in suit, will be deposited in Court within two weeks from the date of acceptance of the offer and if the balance amount is not deposited within the said period the said bidder will forfeit an amount equivalent of the sale consideration which will be credited to the estate of the deceased for the distribution amongst the heirs. This order did not include the two remaining properties which are subject- matter of the present reference i,e, the Naz Cinema and Yousuf Building. Again on 20-12-1982 another order was passed in respect of the present two properties i,e, Naz Cinema and Yousuf Building whereby it was ordered that the offers for these properties will be invited from the heirs of the deceased who are parties in the suit. The counsel for the parties had agreed that the same procedure may be applied for disposal of these remaining two properties as was ordered earlier.
3. Similarly it was ordered that all the heirs of the deceased parties to the suit may submit their offers jointly or severally for the purchase of the said two properties within one month from the date of the order which offers will be deposited with the Official Assignee and will be placed before the Court for consideration and that the building will be sold as it is and where it is. The matter was then adjourned to come up after one month. The plaintiffs (L.Rs) submitted offer on 24-4-1983 whereby they offered to pay Rs,85,00,000 for Naz Cinema and Rs,2,00,000 for Yousuf Building. The offer was made jointly through their attorney Ghous Bux. This offer was accepted by the Court vide orders passed on 15-9-1985. However, no timing with regard to payments by the bidders was given in this order. In the meanwhile the Defendant No, 1 had filed an appeal in the matter being H.CA. No, 24 of 1983 which was disposed of in favour of the bidders. The defendant No, 1 is then said to have moved a petition for leave to appeal but the leave was also not granted. In the meanwhile certain persons encroached upon portions of the aforementioned properties and also it is pointed out that some portion Was transferred to Military Authorities. The plaintiffs therefore, filed H.CA. No, 92/85 which is still pending. Now, the plaintiff have deposited the amount of Rs,79,77,500 only towards their bid money after adjusting their share and, therefore, the Official Assignee has made this reference praying for final orders to be passed by the Court. As against this the Defendant No, 1 has moved an application for grant of interim injunction pending final determination of the offers in respect of the above said properties. I have heard the learned counsel for the parties and the Official Assignee. The main ground taken by the learned counsel for the Defendant No,
1. Is that because the Plaintiffs have not deposited the bid amount within fifteen days of the acceptance of their bid, hence the entire proceedings are nullified and they would not be entitled to sale of the properties in their favour but the same is to be resold at the cost of the bidder. He has placed reliance on the provisions of Order 21 and Rules 84, 85 and 86 which read as under: "84. Deposit by purchaser and resale on default,---(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the same, and in default of such deposit, the property shall forthwith be resold.
(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under Rule 72, the Court may dispense with the requirements of this rule.
85. Time of payment in full of purchase-money:- The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: ' Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under Rule 72.
86. Procedure in default of payment. 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."
4. No doubt the above rules do provide that in case the amount of bid is not paid within the prescribed period of fifteen days, the bidder shall not be entitled to sale in his favour and the properties have to be re-sold. However, it may be observed that these provisions would apply where the sale is through auction under the orders of the Court. However, there is a fine distinction between the sale as under. Order XXI, C.P.C. And a sale as directed to be made in the present case.
5. In the present case a sale of some other properties in the suit was directed vide orders passed on 7-1-1981 whereby the essential directions were that the offers would be made by the parties only and were to be made within one week from the date of the order. This order also provided that the bid money will be paid within two weeks of the date of acceptance but there was no direction with regard to payment of 25% at the time of making the offer. This itself is a deviation from the rule 66 of Order XXI, C.P.C. In case of sale of execution a proclamation for sale is to issue in accordance with Form No,29, Appendix E of Schedule to Civil Procedure Code. Conditions Nos.6 and 7 of the said form provide as under : "6. In the case of the immovable property, the person declared to be purchaser shall pay immediately after such declaration a deposit of 25 per cent. On the amount of his purchase- money to the officer conducting the sale, and in default of such deposit the property shall forthwith be put up again and re-sold.
6. ' The full amount of the purchase-money shall be paid by the purchaser before the Court closes on the fifteenth day after the sale of the property, exclusive of such day, or if the fifteenth day be a Sunday or other holiday, then on the first office day after the fifteenth day.
7. ' In default of payment of the balance of purchase-money within the period allowed, the property shall be re-sold after the issue of a fresh notification of sale. The deposit after defraying the expenses of the sale, may if the Court thinks fit, before to Government and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may be subsequently sold."
8. A perusal of the above two conditions would show that purchaser is required to deposit 25% of the amount immediately after declaration and the rest within fifteen days. In the present case there being no such direction for depositing 25% of the amount under order passed on 7-1-1981, which shows that the said procedure has not been strictly followed by the Court. Again order dated 20- 12-1982 shows that offer was to be made within one month from the date of order. This is also a deviation from the earlier order on 7-1-1981 which gives rise to inference that by allowing adoption of same procedure learned Judge in this order did not intend to stick to the time schedule given in the earlier order. This all that is meant by adoption of the same procedure is that irshould be a restricted auction as amongst the parties. The final order of acceptance passed on 15-9-1985 also does not mention any time schedule. The outcome of above discussion thus, is that no time limit was fixed for deposit of the bid money by the purchaser and as such the purchaser would not be subjected to any penalty on this score.
9. ' Mr. Z.U. Ahmed, Advocate appearing for the plaintiffs has submitted that the facts of the case would show that immediately after the above orders were passed, the defendants filed the High Court Appeal and thereafter the present plaintiffs had filed the High Court Appeal and the matter was sub judice. He has also submitted that even certain portion of the properties were encroached upon or transferred to military authorities and, therefore, they were not in a position to ascertain the area and thus, the delay in depositing the amount. He has further submitted that the appeal of the defendant has since been disposed of favourably to the present plaintiffs while the plaintiffs are intending to withdraw their appeal as soon as the Court re-opens after winter vacation. He has also submitted that there being non-time fixed by the Court for depositing the bid amount, the plaintiffs cannot be subjected to penal clause as envisaged by the Order XXI, Rules 85 and 86, C.P.C. As the same would not be applicable to the present case on account of the two orders passed by this Court in which a deviation has been made by the Court from statutory provisions.
10. He has placed reliance on the case of Rashad Ehsan and others v. Bashir Ahmed and another PLD 1989 SC 146 and has urged that "Actus Curiae Neminiem Gravabit" which means an act of the Court shall prejudice no man will be applicable to the present case.
11. For the above reasons I am in agreement with the contention of the learned counsel for the plaintiffs. Accordingly, I allow this reference made by the Official Assignee and direct that the bid amount paid by the purchasers be accepted and the possession be handed over to the plaintiffs through their attorney or nominee as desired by them on completion of the mandatory formalities.
12. The application CMA No,4 of 1994 moved by the Defendant No,1 stands dismissed.