GHULAM MAHMOOD QURESHI, J.--- This appeal is directed against the judgment dated 16.1.1997 and decree (if and when drawn) passed by the learned Civil Judge, Lahore.
2. The respondents/plaintiffs filed a suit for partition against the appellants. The predecessor-in- interest of the parties Professor Mirza Habib-ur-Rehman expired on 12.6.1984 leaving behind property No. 64-F, Model Town, Lahore measuring 4 kanals, 12 marlas with a bungalow constructed on it. The parties are in joint possession of the property. Appellant No. 1 is their real mother whereas appellants Nos. 2' to 4 and respondents are brothers and sisters. It was averred in the plaint that the appellants/defendants Nos. 1 to 3 started interfering in the peaceful possession of the respondents/plaintiffs and appellant No. 4 as they were planning to alienate the property in dispute and they prayed for the partition of the disputed property.
3. The suit was contested by appellants Nos. 1, 2 and. 3 by filing written statement and it was alleged that the appellant No. 1 was the sole owner of the disputed property and the respondents/plaintiffs had no concern with that. The learned trial Court after framing issues and recording _evidence of the respondents/plaintiffs, as appellants/defendants despite number of opportunities granted to them failed to produce any evidence which was ultimately closed under Order XVII, Rule 3, C.P.C. On 25.9.1995, passed a preliminary decree whereby share of parties were also determined.
4. Appellant No. 1/defendant No. 1 in her written statement raised preliminary objection to the effect:- "that the property subject-matter of the suit was gifted to defendant No. 1 by late Mirza Habib-ur- Rehman, during his life-time. As such a constructive gift was made in favour of defendant No. 1, and the deceased at the time of his death had got no right, title or interest in and possession of the suit property, which had already by virtue of a gift stood transferred and vested to and devolved upon her i.e. Defendant No. 1 to the total exclusion of plaintiff and which she i.e. Defendant No. 1 continues to hold and possess as the absolute owner." .
However in an application submitted by her on 4.4:1993, she made the following prayer:- "That the answering defendant having fear of God Almighty, is accordingly submitting this application to admit and recognize that the plaintiff as well as the defendants are entitled to their Sharia Share of the inheritance of late Professor Mirza Habib-ur-Rehman and suit be decreed and orders for partition of the suit property be kindly passed accordingly ."
5. In view of the preliminary decree, the learned trial Court appointed Mr. Abdul Manan Sipra, Advocate as a Local Commission and directed him to visit the spot and report whether the property in dispute was liable to be partitioned or not. The learned Local Commissioner made a report to the effect that the property in dispute is not divisible. As no objection was filed on the report of Local Commission, the learned trial Court on 6.12.1995 appointed Ch. Abdul Majid, Advocate as Court Auctioner and after giving him schedule of auction, directed to auction the disputed property in accordance with law. The case was adjourned to 3.1.1996. For this purpose 13 adjournments were granted and ultimately the property was auctioned on 28.11.19g6 for a sum of Rs.60,25,000/- and the auction purchaser deposited an amount of Rs.15,07,000/- as 1/4 of the auction price on 12.12.1996. He was, however directed to deposit the remaining sale price-up to 23.12.1996 as per proclamation of the Court Auctioner the remaining price was to be deposited within 15 days for the confirmation of the auction. On an application for grant of extension of period for depositing the remaining 3%th price, the learned trial Court allowed auction purchaser to deposit the remaining amount up to 13.1.1997 which was accordingly done and the learned trial.
Court vide judgment dated 16.1.1997 decreed the suit.
6. Learned counsel for the appellants contended that the confirmation of auction is illegal on the ground that provisions contained under Article 45 read with Section 2(25) of the Stamp Act has not been complied with. He further contended that the entire auction proceedings are contrary to mandatory provisions of Order XXI, Rule 66, CPC as no reserve price was fixed in the proclamation.
It is further contended that no inquiry in this regard was conducted by the learned Court which rendered whole of the auction proceedings as nullity.
7. Conversely, learned counsel for respondent No. 4, auction purchaser, contended that there was no conveyance dead therefore, sale certificate is not compulsorily registerable. He further contended that since no ground was taken before the learned trial Court, auction cannot be legally set aside.
8. We have heard learned counsel for the parties at some length, therefore, this case is being decided as notice case. After hearing learned counsel for the parties, we find merit in this appeal.
9. As far as the first contention of learned- counsel for the appellants regarding the payment of stamp duty is concerned only sale certificate is issued in favour of the auction purchaser and there. Is no document on record showing that the auction purchaser ever intended to transfer the property in dispute in the name of another person which could be done through a proper sale- deed executed and registered in accordance with law and not by getting his name substituted in the certificate of sale, therefore, the objection raised in this behalf is repelled being devoid of force.
10. However, we find that the plea of the- appellants about illegality of the auction notice due to non-mentioning of the value of the property sought to be auctioned, carries weight. There is no cavil with the proposition. That it is the duty of the Court to ensure under Order XXI, Rule 66, CPC that the proclamation of the auction must include every thing considered as material by the Court, to enable a purchaser to know the nature and value of the property. To achieve this purpose fixation of the reserve price is necessary in the proclamation so that the rights of the judgment- debtor are properly safe-guarded and the bid starts from that figure. Such price had to be fixed after objective consideration of the relevant material which. Is produced before the Court by holding a summary inquiry and summoning and examining of any person possessing of necessary information as provided by Order XXI, Rule 66(4), C.P.C. Nondisclosure-of the reserve price of property in the proclamation would render the same liable to be struck down. If any authority is needed see Brig. (Retd.) Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706).
11. In the present case omission to mention the reserve price of the property, has, thus, rendered the proclamation to be illegal. Even if there was no objection from either side still it was the duty of the Court to conduct the auction in accordance with law which has not been done. In all the five proclamations/pamphlets available on record of the trial Court at pages 319, 321, 323, 325 and 327 one of the condition reads as under:--
12. Which is in clear violation of the provisions contained under Order XXI, Rule 66, C.P.C.d
12. In the light of what has been discussed above, this appeal is accepted and after setting aside the impugned judgment/decree, it is directed that fresh proclamation be issued in accordance with law for auction of the property in question keeping in view the observation made here-in- before. The parties shall bear their own costs.