In this execution application for recovery of money by attachment and sale of the property of the judgment-debtor by this Civil Miscellaneous Application judgment-debtor Nabi Bux Bhurgari under the provision of Order XXI, rules 89 and 90 read with section 151, C.P.C. seeks an order to declare the sale in respect of Plot No,E-61, Block-4, Scheme No,24, Gulshan-e-Iqbal, Karachi as nullity and to set aside the sale on the grounds: firstly that the judgment debtor was not served with any notice of the execution application; secondly that he had not yet acquired title to property despite his best efforts inasmuch as lease agreement was not executed in his favour; thirdly that the market value of the plot in suit in 1987 was about Rs, five million whereas it is worth about Rs, ten million; fourthly that the decree-holder and the auction purchaser had obtained sale through misrepresentation and fraud; and lastly that the judgment-debtor is prepared to deposit the decretal and requisite amounts in Court.
2. Decree holder filed a suit for specific performance against Muhammad Yousuf Memon, Nabi Bux Bhurgari and K.D.A. in respect of the property in suit and alternatively claimed a sum of Rs,3,90,000 as damages for breach of contract, compensation and losses together with refund of Rs,1,10,000 paid by him to defendant No,1 as earnest money and part payment of the purchase money. This suit came up for hearing on 24-11-1985 before Justice Nasir Asalm Zahid (as his Lordship then was) when, parties filed an application for compromise whereupon suit was decreed for payment of Rs,1,10,000 against the judgment debtor by 22-12-1985 with the stipulation that if the amount was not paid by this date judgment-debtor will be liable to pay interest at the rate of 15% per annum from this date till realisation.
3. In execution proceedings as the judgment-debtor did not appear to contest the same execution was ordered to issue as prayed vide order dated 24-4-1988. On Civil Miscellaneous Application No,1074 of 1989 moved by the decree-holder the property was to auction and the highest offer of the auction purchaser in the sum of Rs,21,55,000 was accepted vide order dated 10-4-1994. After the deposit of the said amount with the Nazir by order dated 4-9-1994 he was directed to take steps for transfer of the plot in question in the name of auction purchaser and to deliver the possession to him free from all encumbrances whatsoever in terms of the auction purchase and a sale certificate may also be issued in his favour.
4. In the counter-affidavit to the Civil Miscellaneous Application filed in this Court on 14-3-1997 auction purchaser has controverted various pleas taken by the judgment debtor. It is urged that this application is barred by limitation, that after obtaining physical possession and performing other legal formalities he had applied for mutation of the property in question in his name but the judgment debtor being an influential person was creating hurdles in the way of mutation in the office of K.D.A. Without the leave of the Court an additional counter-affidavit was filed on behalf of auction purchaser stating that the suit was decreed on the basis of compromise between the parties; that the judgment-debtor failed to make payment of the decretal amount within the period fixed by this Court; that after filing of execution within one year of the decree he was duly served with the notice but he mala fidely and intentionally avoided the service of notice, that service was also effected by publication; that the plot was disposed of by this Court after inviting public offers for its purchase; that after obtaining peaceful and vacant possession of the plot he applied to K.D.A. for the transfer of the plot and made payment of a sum of Rs,2,23,701 to K.D.A. It was lastly urged that by this application moved after eleven years of tiling of the execution and more than three years from the date of auction, the judgment-debtor was attempting to blackmail the auction purchaser and trying to re-open the closed and past transaction upheld by this Court.
On a legal objection raised by the auction purchaser in terms of Order XXI, rules 89 and 90 of C.P.C.
I directed the judgment-debtor to deposit of the auction purchase amount with the Nazir which was duly complied with.
5. At the hearing it was noticed from the record that in fact the judgment-debtor was duly served on person with notice of sale of property for satisfaction of the decree on 12-8-1991 for hearing before the Additional Registrar on 22-8-1991 but he did not bother to appear either in person or through an authorised agent. A presumption of correctness and regular performance is always attached to official acts. In this view of the matter Mr. Jhamat Jethanand learned counsel for the judgment-debtor fairly conceded that he would not press the ground of absence of service of notice of execution or the sale of property. It may further be pertinent to observe that despite personal service of notice on the judgment-debtor he was served by way of publication in Daily "Morning News" dated 23-8-1991 for hearing fixed on 26-9-1991 but without any response.
6. Finding him on weak wicket, learned counsel for the judgment-debtor contended that despite repeated directions to the decree-holder to produce documents of title in respect of the plot in the name of judgment-debtor he could not produce any before the office of the Court whereas the sale proceedings were held and confirmed without verifying the title of the judgment-debtor to the property. Learned counsel also urged that from 1989 uptil 1994 even the costs for sale proceedings were not deposited by the decree-holder. Main thrust of.the argument of the learned counsel is that on the day when the property was put to sell through public notice, judgment debtor was merely an allottee of the plot without any title to it which matured during the pendency of this Civil Miscellaneous Application when this Court issued a notice to Law Officer of K.D.A. as well as Assistant Director (Lands) K.D.A. Scheme No,24, Gulshan-e-lqbal, Karachi. Be that as it may, irrespective of the fact whether the judgment-debtor was able to obtain title documents in his favour or not, he was the allottee of the plot in question and atleast prospective owner to the best of his knowledge. In case the office of the Court omitted to secure title documents in respect of the plot, auction purchaser cannot be made to suffer for the mistake of the office of the Court. It is well- settled that no person shall suffer for the mistake or lapse on the part of the Court. Likewise delay in deposit of costs of sale proceedings on the part of decree-holder having been condoned and being a past and closed transaction cannot be re-opened in the present proceedings.
7. As to the inadequacy of consideration for the price, learned counsel for the auction purchaser has referred to various Court orders reflecting the offers received for the purchase of the property.
From the record it transpires that reserve price of the plot in question was fixed at Rs,20,00,000 and initially offers from prospective purchasers were received below this price as well as equivalent to reserve price but the Court did not accept the same. It was on account of care and caution taken by the Court for readvertising the sale that the maximum offer of Rs,21, 55,000 was accepted being the highest market price obtaining on the date of sale in April, 1994, to which no exception can be taken at this belated stage. It is needless to over emphasise that the judgment-debtor having slept over the matter for nearly 12 years after the consent decree and for more than 10 years of this execution has come up with irrelevant and frivolous objections to defeat the sale which has been duly accepted and confirmed by this Court followed by deposit of the purchase money, delivery of vacant possession and transfer of the property in favour of the auction purchaser. At any event, there is no evidence to hold that the market value of the plot in question was Rs,5 million at the time of public notice for sale of the property. The argument that it is worth Rs,10 million at the moment is without any substance as past and closed transaction cannot be re-opened at the instance of an unscrupulous litigant who has kept silent for a pretty long time after consenting 'to the decree and not paying paltry amount of Rs,1,10,000 as undertaken by him in judicial proceedings, to which a sanctity is always attached.
8. Adverting to the question of limitation with regard to the present application, it may be observed that application under Order XXI rule 90, C.P.C. has to be made within 30 days of the date of sale.
Article 166 of the First Schedule to the Limitation Act prescribes a period of 30 days froth the date of sale for an application to set aside the sale in execution of a decree including any such application by a judgment-debtor. Analysing the case of the judgment debtor in the light of this express provision of law, there is hardly any necessity to refer any case on the point. The position may perhaps be different where an application is made under section 47, C.P.C. to set aside the sale for which a period of three years would be available. In the present case, however, the application is made after more than 4-1/2 years inasmuch as the judgment debtor was personally served with the notice of sale on 12-8-1991. The application is liable to dismissal on this preliminary ground alone but since the counsel for judgment-debtor did raise vital questions of fact tending to touch the merits of the sale, proceedings and as the Supreme Court has disapproved the decision of causes in a fragmentary manner, I decided to deal with the questions of fact and law raised in this Civil Miscellaneous Application.
9. No other point was urged at the Bar. For the aforesaid facts and reasons, I am convinced that there is absolutely no merit in this application which is accordingly dismissed with special costs of Rs,5,000 which sum on payment shall be credited into High Court Employees Welfare Fund.