KHILJI ARIF HUSSAIN, J.--- The appellant filed appeal against the order dated 24.12.1999 whereby reference of the official assignee dated 24.12.1999 was considered by the learned Single Judge and after hearing the official liquidator passed following order:- "On 21.12.1999, this Reference had come-up for consideration when the matter was directed to be put up for today. I am informed by the learned official liquidator that the auction purchaser has failed to deposit the sum of Rs.3,80,000/- and to furnish security for the amount of Rs.4,320,000/- by 23.12.1999 accepting the bid of Agha Fakhruddin Khan Babar for purchase of Ruby Rice and General Mills Ltd. If recalled and the amount of Rs.1,00,000/- deposited by him is ordered to be forfeited. The learned official liquidator shall re-advertise sale of the above property and may also get in touch with the second highest bidder to ascertain his interest for purchase of the property. It may be noted that the auction purchaser Agha Fakhruddin Khan Babar is called absent despite having been notified the date of hearing. The time now is 11.10 a.m."
2. Brief facts for the purpose of appeal are that the appellant submitted offer for the purchase of M/s. Ruby Rice and General Mills Ltd. Vide his offer dated 18.4.1999. The said offer contained two proposals in the first one, appellant proposed, to purchase the premises in a sum of rupees fifty lacs out of which rupees ten lacs was to be paid at the time of handing over the possession with one year grace period then second instalment of rupees twenty lacs in the year 2001 and final instalment in the year 2002 and in the second proposal, the appellant offered to purchase premises in a total consideration of rupees forty lacs payable within three to six months after confirmation. The matter thereafter listed in the Court for consideration of official assignee's reference dated 6.5.1999 but the offer of the appellant was not accepted and parties were directed to appear before the official assignee to improve their offers. It appears from the record that official assignee submitted reference dated 6.10.1999 informing the Court that appellant has improved the bid from Rs.4.0 million to Rs.4.8 million and by order dated 25.10.1999 offer of the appellant for the purchase of the property was accepted on the undertaking of the appellant, to deposit an additional amount of Rs.3,40,000/- within 15 days from the date of the order. It was further ordered that for the balance amount to appellant will submit solvent security within the same period of 15 days and entire balance amount shall be deposited with the official assignee within three months from the date of order whereafter possession of the mills was to be handed over to the appellant subject to fulfilling other formalities. The appellant failed to deposit the balance amount within stipulated period of time. The official assignee submitted a reference dated 7.12.1999 for orders as the appellant failed to deposit Rs.3,80,000/- within 15 days from the date of confirmation of his offer and further failed to furnish solvent security for the amount of Rs.43,20,000/- The said reference came-up for consideration before the learned Single judge and after hearing the appellant vide order dated 21.12.1999 the learned Single judge ordered that as a last chance the appellant is permitted to deposit a sum of Rs.3,80,000/- and to furnish security for the balance of a sum of Rs.43,20,000/- on or before 23.12.1999. The learned Single Judge further ordered that in case auction purchaser/appellant failed to do the needful then the matter will be taken-up on 24.12.1999 to consider recall of confirmation of sal and forfeiture of amount deposited.
On 24.12.1999 the matter was placed before the learned Single Judge who passed the order as under:- "On 21.1 2. 1999, this Reference had come-up for consideration when the matter was directed to be put-up for today. I am informed by the learned Official Liquidator that the auction purchaser has failed to deposit the sum of Rs.3,80,000/- and to furnish security. In the circumstances the order dated 25.10.1999 accepting the bid of Agha Fakhruddin Khan Babar for purchase of Ruby Rice and General Mills Limited is recalled and the amount of Rs.1,00,000/- deposited by him is ordered to be forfeited. The learned Official Liquidator shall re-advertise sale of the above property and may also be in touch with the second highest bidder to ascertain his interest for purchase of the property. It may be noted that the auction purchaser Agha Fakhruddin Khan Babar is called absent despite having been notified the date of hearing. The time now is 11.10 a.m.
I am informed that this matter was not notified in the daily cause list on account of grant of general adjournment to Mr. Mansoorul Arfin from 1 5th December, 1999 without exception. Notwithstanding the above, the Reference of the learned Official Liquidator dated 7.12.1999 had come-up in Court on 21.12.1999 and order was passed thereon.
Consequently, the office should not have taken this matter out of the list. Further, cannot refrain from expressing my doubt about general adjournment through Administrative Order superseding orders passed on Judicial Side fixing actual date of hearing in a matter. Let the office be careful in future."
3 Heard Mr. Rashid Akhtar Qureshi, learned Advocate for the appellant, Mr. S.I.H. Zaidi for the respondents and Mr. Bashir Ahmed Memon, Official Assignee. The learned Advocate for the appellant mainly contended that since Mr. Mansoorul Arfin learned Advocate, who was appearing for the petitioner, was on general adjournment and matter was discharged as per cause list, the learned Single Judge ought to have not passed order on the said date and as such the order passed by the learned Single judge is liable to be set aside.
4. We have gone through the record as well as considered the arguments advanced by the learned Advocates and we are afraid that contention of the learned Advocates have any force. It is an admitted position that the auction was confirmed in favour of the appellant subject to deposit a sum of Rs.3,80,000/- within 15 days from the date of the order and furnish solvent security within the same period of time for the balance of Rs.4,32,000/- to be paid within three months from the date of the order. It is also an admitted position that in spite of extension of time by the learned Single Judge for the payment of balance amount the appellant failed to pay the same. In our opinion as the bid of the appellant was accepted conditionally and the appellant admittedly failed to fulfil the conditions the appellant has not acquired any right or interest in the property so as to question the order passed by the learned Single Judge.
5. In the case of Feroze Din Faiz v,, Chaman Lal and others (PLD 1953 Lah. 83), Mr. M.R. Kayani, J. (as he then was) held that sale in execution of a decree does not require to be set aside if the purchaser fails to pay the full amount of purchase money within fifteen days.
6. The order dated 24.12.1999 was passed in presence of appellant and it was the duty of the appellant to be present in Court on the date fixed by the Court, even if the case has not appeared in the cause list.
These are the detailed reasons of our short order dated 10.4.2003, whereby the appeal was dismissed.