P L D 1976 Karachi 723 (PLP)

ZAFFAR HUSSAIN MIRZA, J.-This is an appeal against order dated 18th February 1975 passed by a learned Single Judge of this Court on the Original Side in execution proceedings, dismissing the appellant's application under Order XXI, rules 89 and 90 and section 151, C. P. C. and confirming the auction sale.

2. The facts forming the background of this appeal are that the first respondent filed Suit No. 315 of 1967 for recovery of Rs. 41,849.87 as principal and interest at Rs. 8.00% per annum with monthly rests from the date of suit and also Rs. 2,138.00 as costs. On 20-11-1967 a preliminary decree was passed for the amount claimed in favour of the first respondent allowing six months time to the appellant to pay the decretal amount. On account of failure of the appellant to pay the decretal amount within the prescribed time, on 6-4-1970 final decree was passed for sale of the mortgage property.

3. On 7-8-1971, the first respondent filed Execution Application No. 91 of 1971 with a prayer under Order XXI, rule 64, C. P. C. for sale of the property, whereupon the Court passed order for sale on 9-10-1972. Once the sale proclamation was issued but the sale could not take place. Finally by .order dated 19-2-1974, the Court directed that a portion of the property be auctioned and sale proclamation was published fixing the sale on 23-11-1974. At this stage the appellant submitted Application C. M. A. No. 112/74 ,for postponement of sale till fresh and proper proclamation of sale was published, but the same was rejected by order dated 20-11-1974, with the observation that it would be open to the appellant to urge his .contentions regarding the inadequacy of publication when the sale came up for confirmation. The auction for the sale thus took place .on 23-11-1974 and the highest bid given by the second and third respondents was accepted by the Nazir. Then on 20-12-1974, the appellant submitted an application under Order XXI, rules 89 and 90 read with section 151, C. P. C. praying that the auction sale may not be confirmed. No .amount was, however, deposited with the application. Accordingly by the impugned order dated 18-2-1975, the application was dismissed for the reason ,that the appellant had failed to deposit the amount as required by Order XXI, )rule 89, C. P. C. This last order is now sought to De challenged in this appeal. In support of the appeal, Mr. M. G. Dastagir, learned counsel for ,the appellant, first contended that the learned Single Judge has completely -ignored the provisions of Order XXI, rule 90, C, P. C. and had only applied his mind to the requirements of rule 89 of the said order. According to the learned counsel, his application could not be summarily dismissed, as has been done, for want of requisite deposit of amount required under rule 89, for, the application for setting aside the auction sale, as its title showed, was made under both rules namely rules 89 and 90 of Order XXI, C. P. C. Accordingly, he urged that his objections under rule 90 with regard to irregularities and fraud committed in publishing and conducting the sale were not considered. The learned counsel then submitted various arguments alleging several irregularities in the conduct of the auction sale.

4. Mr. Ismail Munshi, learned counsel appearing for respondents 2 and 3, the auction purchasers, on the other hand, submitted that by Ordinance XII ,of 1972, a second Proviso was inserted in rule 90, whereby an application under the rule could not be entertained unless the appellant deposited either a sum upto 20 Y. of the sale price or furnished security to that extent He .accordingly submitted that the request of the appellant under either rules was not entertain able on account of his failure to deposit the requisite amounts or to furnish security as required by law.

5. In order to appreciate the contention of the learned counsel it will be advantageous to reproduce here rules 89 and 90 (as amended) of O. XXI, C. P. C. which are as under : "(89) Application to set aside sale on deposit.-(1) Where im movable property has been sold in execution of a decree, any person, either owning such property or holding on 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 per cent. of the purchase-money, and (b) for payment to the decree-holder, the amount specified in the pro clamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such pro clamation of sale, have been received by the decree-holder. (9) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale." "(90) Application to set aside sale on ground of irregularity or fraud.- Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable dis tribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material. irregularity or fraud in publishing or conducting it : Provided that no sale shall be set aside on the ground of irregularity or:" fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregu larity or fraud Provided further that no such application shall be entertained unless the: applicant deposit such amount not exceeding twenty per cent. of the sum realised at the sale, or furnishes such security, as the Court may direct."

6. Learned counsel for the second and third respondents submitted that the prayer in the application falling under rule 89 was clearly inadmissible,. as no attempt was made to deposit the amount, and, as regards rule 90, learned. counsel relied on the second proviso therein, contending that the application could not be "entertained" without first depositing the amount or furnishing security. As none of these two alternative conditions were fulfilled, obviously the only course open to the Court was to summarily dismiss the application as has been done.

7. I have given my anxious consideration to the argument and feel that, the argument, as applied to the facts of this case is a rather over simplification, of the legal position. The case turns on the interpretation of the second proviso of rule 90 and as to what procedure is to be followed by the party applying and the Court receiving such application. This is a new provision, as before the insertion of the second proviso, a party could invoke the jurisdiction of the Court to set aside the auction sale on the ground of material irregu larity or fraud in publishing or conducting the sale, without depositing any amounts or furnishing any security. Under the amended provisions, how ever, the Court is debarred from examining the merits of the claim in the application or in the words of the statute, can entertain the application only after the applicant has complied with the condition of deposit or security. The question that has engaged my consideration, is whether the applicant has to tender the deposit or security at the time of the application or has to do so only after the Court. in terms of the proviso in question passes an order fixing: the amount of deposit or security. In other words, the question is at what; stage the bar as to "entertainment" of tae application becomes operative? Can the Court refuse to look into the application and apply its judicial mind to even the question of fixing the quantum of deposit or the question whether deposit or security be ordered ? This then brings me to the consideration of the position under rule 89 also. The provisions of rule 89 of Order XXI, C. P. C. are in the nature of an indulgence to the judgment-debtor; they give him a last chance of getting the sale set aside before confirmation upon the terms of his satisfying the decretal debt and of paying compensation to the auction-purchaser for loss of bargain. The proceedings under this rule, proceed on the footing that the execution sale is valid and binding on the property and is not affected by fraud or other vitiating circumstances. Where as rule 90 of Order XXI, C. P. C. contemplates a situation where materia irregularity or fraud in publishing or conducting the sale has vitiated it. The auction-purchaser at an execution sale has no absolute right to its being con firmed when there is such irregularity or fraud. This distinction in the principle on which clause (2) of rule 89 is based, so that the applicant there under is required to withdraw his application. if any, under rule 90 made by him. Accordingly, by operation of rule 92 of Order XXI, C. P. C., the fact of application under rule 89 coupled with the deposit as stipulated therein, results mandatorily in the setting aside of the sale. However, the claim set up under rule 90 requires to be investigated and adjudicated upon, on the basis of evidence and if the Court grants the application, it has the power to set aside the sale. It is this essential difference in the two rules that must determine the procedure to be adopted. Thus in the case of an application under rule 89 if the deposit is not made within 30 days, the application would be dismissed under rule

92. However, it is not possible to follow such a procedure in the case of an application under rule

90. A bare reading of the proviso in question shows that the bar on entertainment of the application results from the failure of the applicant to "deposit such amount not exceeding twenty per cent of the sum realised at the sale", or on the failure of the applicant to furnish "such security, as the Court may direct". Therefore, the bar on entertainment of application can become effective only when the Court first determines the amount to be deposited or security to be furnished and no applicant can possibly anticipate what the order of the Court would be in this regard, so that he could be put to the duty of tendering the requisite amount or security. This is further supported by the fact that the conditions for being entitled to apply, which are under consideration, are contained in the proviso, which must be construed as a qualifying clause to the provision contained in the main enacting part of the statute. It is well established that the enacting part is to be construed with reference to the proviso and the section or enactment is to be construed as a whole. Maxwell says that the "true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, take and construed together is to prevail" A proviso is not to be interpreted s as to have greater effect than strict construction of the proviso renders necessary. The enacting part of rule 90 of Order XXI, C. P. C. is an enabling provision which provides for remedy to an aggrieved party if the sale is stained with irregularity or fraud in its conduct. The object of procedural law in to promote the dispensation of justice and extends, where possible consistent) with the language of the statute, the remedy to avoid injustice. In Toor Gul v. Mumtaz Begum (PLD1971SC9), the Supreme Court, while interpreting rule 4 of Order III of the Code of Civil Procedure observed as under :- "The rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice. These rules are in the nature of enabling provisions and substantial compliance with them should be enough."

8. The provisions contained in rule 90 are, therefore, to be construed in the light of the above principles. The barring provisions of the proviso, if construed strictly would apply only to the consideration of the application on merits for setting aside the auction sale but would not bar the Court fro applying its judicial mind to the question as to the quantum of deposit or as to question of security. The bar, in other words, is as to "entertaining" the application for setting aside the sale and not to any other question which it is necessary to determine under the rule. Normally the applicant must invoke the jurisdiction of the Court, to pass such preliminary order, as it is for him to state his grounds for the exact terms in which such order should be passed. But to throw out the application in absence of such prayer would, to my mind, amount to stressing the technicalities too much. In this case, the appellant would have been saved much botheration if he had himself sought such an order from the Court, which was normally to be done.

9. In the view that I have taken, the position that emerges is that the prayer of the appellant in terms of rule 89 was not entertainable owing to his failure to deposit the prescribed amounts under the rule, but his prayer under rule 90 was to be considered in the manner explained above. The perusal of the impugned order of the learned Single Judge dated 18-2-1975 quite clearly showed that the learned Judge did not apply his mind to the bar under rule 90 of Order XXI, C. P. C. In my humble opinion, the Court had to pass an order either to direct the deposit of a sum up to twenty per cent of the auction amount or to direct furnishing of security as was deemed appro priate under the circumstances, and then give an opportunity to the appellant to comply with such order. It was only when the appellant had failed to comply with such an order that his application under rule 90 could be summarily dismissed.

10. In the result, I would accept this appeal, set aside the order of the Court dated 18-2-1975, and remand the case on the Original Side to be proceeded with according to law for the purpose of disposal of application under rule 90 of rule 21, C. P. C., which is deemed to be pending. The costs shall be the costs in the cause. DORAB PATEL, J.-I agree. S. Q. Appeal accepted.