P L D 2003 Lahore 421 (PLP)

‑‑‑‑O. XXI, R.90, second proviso‑‑‑Sale in execution of decree, setting aside of‑‑‑Deposit of 20% of auction price‑‑‑Proper stage‑‑‑Second proviso to O.XXI, R.90, C.P.C., is an enabling and directory provision empowering Court to direct deposit of amount not exceeding 20% of sum realized at sale or furnish security‑‑Such discretion must be exercised by Court according to judicial standard‑‑‑Words "as the Court may direct" used in second proviso to O. XXI, R.90, C.P.C., controls and regulates its earlier part‑‑‑Objection petition can be dismissed, if direction of Court is not complied with. M. Shafique Shah and another v Mst. Irshad Begum and 8 others 1981 CLC 369 and Mst. Rukhsana and others v. Muhammad Ilyas and others 1993 CLC 1949 rel. Ahmed Waheed Khan for Appellant. M. Zafar Iqbal Ch. for Respondent No.

1. Umar Daraz Khan for Respondents Nos.2 to

4. Date of hearing: 4th February, 2003. The appellant is aggrieved of the order dated 24‑10‑2002, passed by the learned Executing Court, whereby, his objection to the sale of the property in question made in favour of respondent No. 1, through the Court auction have been dismissed.

2. Briefly stated the facts of the case, are, that the appellant is the judgment‑debtor of a money decree, passed against him under order XXXVII, C.P.C., dated 31‑7‑2001. In execution of the decree, the property in question belonging to the appellant was attached and has been auctioned in favour of respondent No. 1, who is the highest bidder. The said respondent applied to the Court for the confirmation of the sale, when the appellant filed the objections challenging the sale the caption of the objections ostensibly reveals being under Order XXI, Rule 10, C.P.C. Anyhow, the petition has been dismissed by, the learned executing Court on the grounds that the objections under Order XX, Rule 10, C.P.C. are not competent; it was the option of the judgment‑debtor to have applied for setting aside of the sale either on the deposit of the amount envisaged by Order XXI, Rule 89, C.P.C. or 20% under Rule 90 of Order XXI, C.P.C. As the amount has not been so deposited, resultantly, the objection petition is not tenable in the eyes of law.

3. Learned counsel for the appellant contends that the objections of the appellant were not under Order 21, Rule 10, C.P.C., rather as the execution application of the respondent was under the said provision, therefore, such provisions were mentioned in the caption of the petition in reference to those proceedings; it is also argued that from the averments made in the objection petition, in substance, the objections were under Order 21, Rule 90, and even if wrong provisions of law were cited, it was the duty of the Court to apply the correct law and grant relief to the appellant. He also submits that as per the proviso to the Rule 90, the deposit of the amount, could, not be made until and unless a direction had been issued by the Court in that behalf.

4. I have heard learned counsel for the parties. As regards the contention that the objections were incompetent being under Order XXI, rule 10, C.P.C., suffice it to say that from the caption of the objection petition, it is clear that such objection petition was filed in reference to the execution application of the decree‑holder, which undoubtedly had been moved under Order XXI, rule 10, C.P.C. The appellant had not quoted any specific provision under which the objection petition was filed, but from the contents of the petition, and the relief claimed therein, it is clear that the purview of Order XXI, rule 90, C.P.C. Even otherwise, lave that the parties even if not invoking correct provision of law it is the duty of the Court to apply the correct law and to grant the relief to the party aggrieved, therefore, the learned executing Court was duty bound to have considered the contents of the objection and thus by applying the relevant provisions, should have decided the matter on merits, rather knocking out the appellant on technical ground, resultantly, the dismissal of the objections on the ground of maintainability, cannot be sustained.

5. As regards the question that according to the second proviso to rule 90, ibid, the appellant was obliged to deposit 20% of the sum realized at the sale and because of his failure in this behalf, his objections could not be entertained and were liable to be dismissed on this score alone, suffice it to say that the said proviso is an enabling and directory provision, which empowers the Court either to direct for the deposit of the amount not exceeding 20% of the sum realized at the sale or for the furnishing of the security. This has been left to the discretion of the Court, obviously to be exercised according to the judicial standard, but the direction of the Court in this behalf, is sine qua non, as is clear from the following words of the proviso:‑‑ "as the Court may direct,". which controls and regulates the earlier part of the proviso. It is only, if the direction of the Court is not complied with, the objections can be dismissed for non‑compliance thereof. The above view is supported by the judgments reported as M. Shafiqe Shah and another v. Mst. Irshad Begum and 8 others (1981 CLC 369) and Mst Rukhsana and others v. Muhammad Ilyas and others (1993.CLC 1949). In the instant case, as has been conceded by the learned counsel for the respondent No. 1, no direction was ever issued by the executing Court to the appellant to make the deposit or furnish the security, resultantly, by taking resort to the said proviso, the learned executing Court, was not justified to dismiss the objection petition. In the light of above, the impugned order is set aside, the Court below is directed to decide the objections of the appellant, considering those to have been filed under Order XXI, rule 90, C.P.C. It may be pertinent to state here that under the order of this Court dated 30‑10‑2002, the appellant has already deposited 20% of the auction price, and thus such deposit shall be considered as sufficient direction by the Court in terms of the above rule and the compliance made by the appellant. This appeal is accordingly allowed. S.A.K./N‑287/L Appeal accepted.