MUHAMMAD ROSHAN ESSANI, J.--- Through this order we are disposing of High Court Appeals Nos.
188 of 2001 and 268 of 2002 as same are arising of order passed in Suit No. 416/1982.
2. High Court Appeal No. 188/2001 arises out of order dated 31.5.2001, passed on the application under Section 151, CPC, filed by the appellant in Suit No. 116/1982, refusing to extend the time for deposit of balance amount of sale price.
3. Brief facts for the purpose of disposing of these appeals are that the appellant and respondents are brother and sisters. The respondents filed suit for administration in respect of the estates left by their deceased father Ghulam Hussain Antaria, who died at Karachi on 16.12.1952 and left behind him one wife, two daughters (respondents) and one son (appellant). The learned Single Judge passed preliminary decree in the suit for administration. Against the said order the appellant preferred High Court Appeal No. 37/1996, 0 which was dismissed on 28.8.1996. After the dismissal of the appeal, the appellant submitted accounts to the Official Assignee, who was appointed as administrator. Before the Official Assignee, the appellant offered to purchase 50% share of the respondents in property No. 7/34 for the total sale consideration of Rs.20,000.000/- and 50% share of the respondents in property No. 7/30 for the total sale consideration of Rs.500,000/- The appellant offered to deposit Rs.2,000,000/- within two weeks from the date of confirmation of the offer and balance within 6 to 12 months form the said date. The Official Assignee submitted offer of the appellant through his report on 23.5.2000 before the Court for consideration. The report was considered by the learned Single Judge and after hearing the parties on 30.5.2000, the following order was passed: "That the property W0/7/34 will be purchased by the defendant in the sum of Rs.2 Crores and 5 lacs. The plaintiffs will have no right and interest in the property, after deposit of the amount by the defendant within 12 months. The defendant will deposit 10% of the amount within a month. In case the defendant fails to deposit the sale consideration within the stipulated period of 12 months, the 10% amount deposited would be forfeited and would be paid to the plaintiff and property would be put to re-auction.
The plaintiff is ready and willing to purchase the property No. WO 7/30 in the sum of Rs.10,00,000/- to be paid within two months. After the deposit of the aforesaid amount within the stipulated period, the defendant will have no claim whatsoever in respect of the property WO 7/30.
The parties will not change in the tenancy till the entire sale considerations are paid by the respective parties."
Admittedly, appellant failed to deposit the balance amount of Rs.18,500,000/- within the stipulated period, whereafter he filed an application under Section 151, CPC on 4.5.2001, requesting for extension of time by one year to deposit the balance amount. The respondents also filed an application on 10.5.2001, praying therein for forfeiture of the amount deposited by the appellant and further prayed for re-auction of the properties.
4. The learned Single Judge disposed of both the applications by order dated 31.5.2001, refusing to extend the time to deposit the balance amount and further ordered to forfeit the amount of Rs.2,05,000/-, deposited by the appellant.
5. Heard Mr. Riazuddin, learned counsel for the appellant and Mr. Badurdduja Khan, learned counsel for the respondent.
6. The learned counsel for the appellant contended that the learned Single Judge committed error of law and failed to take into consideration the appellant's application wherein the appellant had given sufficient reason for extension of the time to deposit the balance amount.
7. We have gone through the application filed by the appellant. The only ground taken in the application for extension of time to deposit the balance sale consideration was that on account of the depreciation and uncertain conditions in the country the defendant/appellant has suffered financial losses in his business and for this reason appellant/defendant was unable to arrange the balance amount of Rs.18,500,000/-. In our opinion the reason given for extension of time was hardly sufficient to extend time fixed by Court. Order XXI, Rule 85, CPC requires that the full amount of purchase money shall be paid by the purchaser into Court before the Court closes on the 15th day from the date of sale of the property. In the instant case since Court itself fixed time for payment of the balance amount with the consent of the respondents it was for the appellant to deposit the amount within the stipulated period of time and on failure to do so the Court cannot extend the time unless some special circumstances ar shown and or consent is given by the respondents.
8. The High Court Appeal No. 268/2002 has been filed aggrieved from order dated 16.9.2002, passed on the application wherein the appellant prayed that the property may be bifurcated between the parties in accordance with respective shares of the parties. The learned Single Judge dismissed the application holding that the property is not capable of being partitioned in accordance with the respective shares of the appellant and the respondents.
9. Mr. Riazuddin, learned counsel for the appellant, failed to point out before us that how the property can be divided by metes and bonds as per shares inherited by the parties. The learned Official Assignee in his report dated 27.2.196 clearly mentioned that both the properties cannot be partitioned by metes and bounds.
However, he submitted a proposal for distribution of the properties among the legal heirs, treating them in two groups, which proposal was not accepted by the respondents. Alongwith the application under Section 151, CPC the appellant also submitted a proposal by dividing the properties among the legal heirs according to their respective shares, but the respondents refused to accept the said proposal and on the contrary gave counter offer to accept the portion marked by the appellant for himself to be transferred to them. The said counter proposal given by the respondents was not accepted by the appellant and as such the learned Single Judge rightly came to the conclusion that the property in question is not capable of being patitioner among the legal heirs in accordance with their respective shares. The learned counsel for the appellant failed to point out any illegality in the order impugned in High Court Appeal No. 268/2002.