1990 PLP 258 (MLD)

O.XXI, Rr.89, 90, 91 & 92

Limitation Act '(IX of 1908), Art.l66

Settin aside sale on deposit by judgment-debtor

Essentials

Auction purchase depositing balance amount beyond period allowed by the Court

Effect- Intervenor's offer was accepted conditionally on his depositing the balance amount within three days but the same was made after seven days

Sale had to be made absolute after deposit of balance amount and Court had to ensure as whether any application under OXXI, Rr.89, 90 or 91, C.P.C. was made or not- After observance of such formalities, sale could be made absolute under O.XXI R.92, C.P.C.

Judgment-debtor in the meanwhile, had made application under OXXI, R.89, C.P.C. and made deposit provided thereunder, in accordance wit law, within the time limit provided under Art.l06, Limitation Act

Settlement arrived at between the judgment-debtor and decree-holder was thus recorded b the Court and full satisfaction thereof was noted in the decree and sale in favour of intervenor was not made absolute but was set aside as per terms of OXXI R.89, Civil Procedure Code. Begoy Krishna v. Momtajuddin P L D 1961 Dacca 177; A I R 1967 S 698 and H.D.M. Limited v. Allied Bank Limited P L D 1987 S C 512 ref. Mamnoonul Hassan, Baqer Hussain and M.A. Latif for Plaintiff. Z.U. Ahmed and Akmal Waseem for Defendants. This execution application has been filed by National Bank of Pakistan for recovery of the decretal amount of Rs. 15,78,563.85. Assistance of the Court was sought, inter alia, by attachment and sale of the immovable property belonging to the Judgment -Debtor. Consequently the Court ordered that the property be disposed of by public auction. A public auction was held under the supervision of the Nazir and the highest bid o Rs.12,50,000 was given by one Haji Ismail. When the bid came for confirmation before the Court on 30-11-1988 the advocate for the Decree-Holder opposed the same on the ground that it was inadequate and that one Nadeem Ahmed ha given a bid of Rs. 20,00,000 for the said property which was not taken into consideration by the Nazir. Hence the bid was not accepted. The Decree Holder's counsel was asked to produce Nadeem Ahmed if he was still willing to give the bid of Rs. 20.00,000 or to bring any other bidder of a higher amount. On 15-1-1989 U.M. Merchant made an application whereby he gave a bid of Rs.20,00,000, which was subsequently increased to Rs. 20,50,

000. The Judgment Debtor requested for time on 5-2-1989 to mike a settlement with the Decree Holder. He was given two week's time for the purpose, but he could not make any settlement. Again on 13-2-1989 an application was made by Mr. Z.U. Ahmed on behalf of the Intervenor who claimed to have entered into an agreement to purchase the property which was subject-matter of auction for Rs. 35,50,

000. The application appeared to the Court to be mala fide, and therefore, the Intervenor was called upon so to deposit Rs. 15,00,000 out of the balance of Rs.30,00,000 in the Court on or before 16-2-1989 to show his bona fides. The Intervenor failed to do so. Hence on 20-2-1989 his application was dismissed and the offer of Joseph Fakhruddin the previous intending purchaser of 85.27,00,000 was accepted and he was directed to pay the balance amount within 3 days. Joseph Fakhruddin deposited the balance amount on 27-2-1989 and not within 3 days. Before the matter could be taken up for making the sale in favour of Joseph Fakhruddin as absolute these applications were made by the Decree-holder, judgment-debtor and Intervenor. C.M.A. No.567 of 1989 is by judgment-debtors Nos. 1 and 4 under order 21, Rule 89(1)(b), C.M.A. No.452/89 is by decree-holder notifying satisfaction and praying that settlement be recorded and satisfaction be noted and the execution application be disposed of. C.M.A. No.453/89 is by U.M. Merchant who is principal of Joseph Fakhruddin. He has prayed that sale certificate be issued in his favour as he has deposited the balance of sale amount. Order 21, Rule 89, C.P.C. entitles the owner of the immovable property sold in execution of decree to apply for setting aside the sale on depositing in Court a sum equal to 5% of the purchase money for payment to the purchaser and the amount specified in the proclamation of sale for payment to the Decree-Holder. The entitlement under Rule 89 is absolute except of course for the period of limitation of 60 days provided under Article 166 of the Limitation Act. It was contended by Mr. Akmal Waseem that the sale had been confirmed and the Court had become functus officio and therefore the applications filed by the Judgment-Debtor, Decree-Holder and Intervenor, referred to above could not be entertained. He has placed reliance in Begoy Krishna v. Momtajuddin PLD 1961 Dacca 177 and AIR 1967 SC 698 in this behalf Neither of these rulings is applicable to the facts of the present case as neither on 20-2-1989 nor upto this day the sale has been made absolute. The offer made by Joseph Fakhruddin/U.M. Merchant was accepted conditionally on his depositing the balance amount within 3 days. He deposited the balance after 7 days. It was after the deposit of the balance that the question of making the sale absolute would have come up before the Court. It was at that time that the Court had to ensure as to whether any application under Rules 89, 90 or 91 was made or 'not. 1t was only thereafter that the sale could have been made absolute under Rule 92 of Order

21. The application under Order 21, Rule 89 and the deposits provided thereunder have been made in accordance with the law and within the time limit provided under Article

100. Even latest ruling of Supreme Court reported in PLD 1987 SC 512 H.D.M. Limited v. Allied Bank Limited admits of a distinction in respect of an application under Order 21, Rule 89, C.P.C. if the same is made in time and the amounts mentioned therein are deposited. I, therefore allow C.M.As Nos. 452 of 1999 and 567 of 1989 and record settlement between the judgment-debtor and the decree-holder and direct that full satisfaction be noted in the decree. At the same time dismiss C.M.A. No.453 of 1989. I further direct that a sum equal to 5% of purchase money deposited by the judgment-debtor be paid to U.M. Merchant /Jeoseph Fakhruddin. A.A./N-230/K Order accordingly.