This appeal arises under Order XLIII, Rule 1, C.P.C. From the order, dated 31-5-1997 passed by Mr. Muhammad Nawaz Bhatti, District Judge, Lahore..
2. The respondent obtained an ex parte order; for the recovery of loan amounting to Rs.4,91,947 against Messrs Madina Ice Factory etc. During the pendency of the suit Talib Hussain predecessor- in-interest of the appellant died. Without impleading all the legal heirs of Talib Hussain deceased the Respondent brought on record his two sons Muhammad Tahir and Muhammad Zahid. The said suit was decreed on 7-12-1995. The appellant on coming to know about the ex parte decree on 7-3- 1996 when the property under loan was put to auction on 7-3-1996, moved an application under Order IX, Rule 13 read with section 12(2) and Order 1,.Rule 10, C.P.C. Before the learned trial Court. This application was dismissed for non-prosecution on 27-3-1997. On 1-10-1996 the appellant also moved an application for reauction of the alleged property and prayed that he is ready to pay the decretal amount. On 14-4-1997 the appellant moved an application for setting aside the order dated 27-3-1997 and dismissed the application under Order IX, Rule 13 read with section 12(2) and Order 1, Rule 10, C.P.C. He also prayed that the order dated 27-3-1997 may kindly be set aside and the petition be decided on its merits and further prayed that till the decision of the application execution proceedings may be stayed. On 16-4-1997 the appellant came to know that the property has been purchased in auction by respondent No.2 who had started demolishing the property and applied to the learned trial Court for restraint order. On 31-5-1997 the application under Order IX, Rule 13 and Order 1, Rule 10 read with section 12(2), C.P.C. Was dismissed where the appellant undertook to liquidate the liabilities.
3. The appellant by virtue of this appeal has challenged the orders dated 27-3-1997, 4-4-1997 and 31-5-1997 being against law and facts.
4. Learned counsel for the appellant has submitted that the learned trial Court has wrongly put stress on the point that under Order XXI, Rule 89, C.P.C., the appellant should have deposited 5% of the decretal amount as compensation for the auction. He further submitted that the learned trial Court did not pass any order as to the payment of the aforesaid amount and as the provision of Rule 89 was not mandatory but discriminatory and it was incumbent upon the Court to return the application to the appellant and calling upon the decree-holder to submit his reply. The learned trial Court failed to pass such an order directing the appellant to deposit 5 % of the auction price in the Court, therefore, the order dated 31-5-1997 is unwarranted by law. The learned counsel for the appellant further submitted that the learned Court went beyond the procedure prescribed by Civil Procedure Code while conducting the execution proceedings. The appellant objected the auction under Order XXI, Rule 58, C.P.C. Through an application dated 27-3-1996 and without deciding that application and rejecting the objection of the appellant the auction was confirmed on 4-4-1997 and, therefore, the learned trial Court acted illegally and did not give any cogent reason for the confirmation of the auction and it was through connivance of the decree-holder and the auction purchaser that a property worth Rs.30,00,000 was auctioned for Rs.8,50,000 and in this way the learned trial Court had not fulfilled the legal obligations caste upon by the law and deprived the appellant of her valuable property and dismissed the application of the appellant without giving any cogent reason, therefore, the aforesaid orders are liable to be set aside and the appellant may be allowed to deposit the decretal amount in the trial Court.
5. Learned counsel for the respondent and the auction-purchaser vehemently opposed the contention advanced by the learned counsel for the appellant. They have submitted that the appellant has not filed any appeal for setting aside the impugned ex parte judgment and decree, that the appellant was bound by virtue of law to deposit the decretal amount under Order XXI, Rule 89, C.P.C. Alongwith 5% of the purchase amount in the Court. Before requesting for setting aside the auction proceedings he has failed to do so, therefore, he cannot avail the remedy under the provision of Order XXI, Rule 89, C.P.C. Moreover, the period to deposit the decretal amount alongwith 5% of the purchase amount was within one month. The appellant failed to deposit the same. The property was put to auction on 7-3-1996 and the respondent. No.2 paid the whole amount. Moreover, the provision of the Civil Procedure Code are very clear in this respect that any interested person can make an application within one month but the appellant failed to do so.
Therefore, he is not entitled to the benefit from the provision of Order XXI, Rule 89, C.P.C. They relied on Rao Muhammad Suleman v. Allied Bank of Pakistan. Ltd and 11 others 1987 CLC 1338, where it is held that sale cannot be permitted to be challenged through an application under section 151, C.P.C. Application before applying for setting aside sale, has to deposit in Court firstly for payment to the Purchaser, a sum equal to 5 % of the purchase money and secondly, for payment to the decree-holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered. Judgment-debtor whose property was sold by the Court-auctioneer having failed to make, requisite deposit under Order XXI, Rule 89, C.P.C. Court, held, would be left with no choice except to confirm the sale.
6. 1 have heard the learned counsel for the parties and have carefully perused the record.
7. It is admitted by both the parties that the property belonged to Talib Hussain who died leaving behind daughters and sons. It is also admitted that the suit was filed on.20-10-1988 and on 29-10- 1979 loan of Rs.3,00,000 was taken against a mortgage of the property as well as the machinery. It is alleged by the learned counsel for the respondent that the machinery had been removed. It is also clear from the record that Mst. Hassan Bibi, the present appellant was not made a party. Only two brothers Muhammad Tahir and Muhammad Zahid, who were Directors of the Board, were already party to the proceedings. Ex parte decree was passed on 30-10-1995 and the auction took place on 7-3-1996. There was an application for impleading the parties, the aforesaid successor- in-interest of Talib Hussain who also prayed under Order IX, Rule 13, C.P.C. For deposit of the decretal amount. This application is at pages 14 to 19 of the instant appeal and is dated 14-3-1996.
He prayed for impleadment of the present petitioner as party in the main application and setting aside the ex parte judgment and decree, dated 7-12-1995 and for redecision of the main application on merits and he further prayed that till the final decision of this petition the operation of the impugned judgment and decree be suspended and auction conducted on 7-3-1996 not to be confirmed. This applicants emphasized that under Order IX, Rule 13, C.P.C. The Plaintiff Bank was required to place the list of legal heirs of Talib Hussain deceased on Court's record and did not comply the provision of the aforesaid order and thus obtained a judgment and decree by misrepresentation and fraud to procure the order of auction of property and the petitioners being the legal heirs and bona fide owners of the property which was put to auction on 7-3-1996 had every right to defend the claim of the Plaintiff Bank against their rights and that the ex parte judgment and decree dated 7-12-1995 is based on fraud and misrepresentation and as they had come to know about the impugned judgment and decree dated 7-3-1996, therefore, the application was within the prescribed period of limitation. An objection petition was also filed under Order XXI, Rule 58 read with section 151, C.P.C. By Mst. Hassan Bibi, Mst Rukhsana, Mst. Nabeela, Mst.
Parveen, daughters of Talib Hussain deceased. This objection petition is dated 26-3-1996. An application under section 151 C.P.C. For re-auction was also filed on 1-10-1996 where it was averred that with mala fide intention the decree-holder has shown auction .Of the property in Rs.8,50,000 whereas the property actually worth more than Rs.30,00,000 and that the petitioner is ready to pay all expenses of re-auction and also in the alternative the Petitioner undertakes to make payment to decree-holder. The appellant also gave an application for cancellation of the order dated 27-3- 1997 and order dated 4-4-1997 and they averred that their application under Order IX, Rule 13 and Order 1, Rule 10, C.P.C. Had been dismissed on 27-3-1997 and the auction had been confirmed on 4- 4-1997 and during the pendency of the execution the appellant Petitioner gave an application that she wants to pay the decretal amount. Since this application was fixed for 26-3-1997 and the appellant petitioner under mistake noted the dated 27-4-1997, therefore, she could not appear in Court and on 27-3-1997 the application under Order IX, Rule 13 C.P.C. Was dismissed and the auction was confirmed but the application for payment of decretal amount was not decided.
8. Order 21, Rule 58 of the Civil Procedure Code reads as under "58.Investigation of claims to and obiections to attachment of, attached property.--- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of .a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit: Provided that no such investigation shall be made where it appears to the Court that the claim or objection whether made before or after the sale has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector:-- (a)proves title acquired in good faith and for consideration subsequent to the date of the first attachment;
(b) proves that his predecessors-in-interest, whether their interest existed at the time of such attachment of was acquired thereafter, fraudulently omitted to make a claim or objection; and
(c) impleads all such predecessors-in-interest, as parties. (2)Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection. Under High Court amendments Lahore the time provided his reasonable time."
9. It is strange that the learned Executing Court had not decided the application filed by the appellant/petitioner on 14-4-1997 where she has submitted that on her application for payment of the decretal amount shall be allowed to pay the decretal amount and till the decision of the same the execution proceedings be suspended and there is no decision of the application dated 1-10- 1996 which was an objection petition. The property belonged to Talib Hussain and the appellants were the successors-in-interest and the plaintiff A was bound to bring them on record after the demise of the predecessor-in- interest of the appellants. They were not brought on record. They gave an application for their impleadment and the Court dismissed the same. Before confirmation of the auction dated 4-4-1997 there was an undertaking given by the appellants/petitioners for making the payment to the decree-holder and Court proceeded and confirmed the same and without rejecting the objection of the appellants/petitioner under Order XXI, Rule 58, C.P.C. The Court confirmed the auction on 4-4-1997 without giving reasons for the same. It is a settled proposition of law that the scale of justice should not lean to one side. The Court is bound to fulfil the legal objections and it has failed to do so.
10.Order XXI, Rule 89 of the Civil Procedure Code reads as under "89. Application to set aside sale on deposit.--- (1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court, .
(a)for payment to the purchaser, a sum equal to five percent of the purchase-money, and (b)for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder."
11. The record shows that the appellant before the confirmation of the sale has moved to the Court for permission to deposit the decretal amount but no such permission was granted by the Court and no such order exists on record. Such an omission on the side of the Court makes the impugned order suffer form legal infirmity on its own circumstances and footing.
12. In view of what has been stated above I accept this appeal, set aside the impugned orders dated 27-3-1997, 31-5-1997 and also dated 4-4-1997 passed by the learned Additional District Judge for confirmation of the sale, direct the B appellant to deposit the decretal amount alongwith 5 % of the purchase money under Order XXI, Rule 89, C.P.C. Before 15-2-1999 in the learned executing Court failing which this appeal shall stand dismissed.
13. The learned counsel for the appellant has submitted during arguments that the had paid a sum of nearly Rs.70,000 to the Bank. He may go to the proper forum for its recovery.
14No order as to costs,