1993 PLP 460 (MLD)

NASIR ASLAM ZAHID, J.‑‑‑This High Court Appeal has been filed against the judgment and decree, dated 17‑11‑1991 of the learned Single Judge passed in Suit No.622 of 1990, filed by respondent, mother of deceased Habibuddin Siddiqui, against the appellants for partition and possession of the property left by deceased Habibuddin. Appellant No.1 is the widow and appellants Nos.2 and 3 are the minor children of deceased Habibuddin. A preliminary decree was passed by the Court on 27‑3‑1991 in terms whereof, the Official Assignee was appointed as Commissioner to inquire and report whether the aforesaid property could be partitioned. The Official Assignee submitted his report that the property could not be partitioned. A final decree was passed by the learned Single Judge observing that it is in the interest of justice of the parties including the minors that the property be sold and the shares of the parties be disbursed according to law. The Official Assignee was appointed as Commissioner to sell the property through public auction.

1. In this appeal, the prayer is that the property is capable of being partitioned and as such the decree for sale of the property be set aside.

2. However, the matter has been amicably settled and a compromise application (C.M.A. No.438 of 1992) has been filed, which is signed by appellant No.1, learned counsel for both the parties and also by the auction purchaser and his counsel, Mr. Baqar Hussain. It may be observed here that pursuant to the final decree, the Official Assignee published notices in Daily "Jang" and Daily "Dawn", Karachi for sale of the property in question being Plot No.C‑128, Block‑9, K.DA. Scheme 24, Gulshan‑e‑Iqbal, Karachi, but only one offer was received from Mir Amjad for Rs.16,00,000 who has deposited a Pay Order of Rs.5,00,000 with the Official Assignee and he is represented by Mr. Baqar Hussain, Advocate. The condition of the auction‑purchaser in his offer is that he should get vacant possession of the property and free from all encumbrances. The property is in possession of the appellants and the respondent. In the compromise application it is stated that the offer of Rs.16,00,000 made by Mir Amjad be accepted and approved and the appellants and the respondent given three months time from today to vacate the premises. Mr. M.G. Dastgir, Advocate for the appellants has also filed his certificate under Order 32, Rule 7(1‑A) of the Civil Procedure Code to the effect that the compromise is for the benefit and interest of the minors namely, appellants Nos. 2 and

3. C.MA. No.438 of 1992 is allowed and High Court Appeal No.4 of 1992 stands disposed of in terms thereof with no order as to costs subject to further terms mentioned hereafter which have also been agreed to by the parties and the auction purchaser.

3. A Pay Order of Rs.11,00,000 being the balance amount of sale consideration, has been brought by the auction‑purchaser, which is handed A over to the Official Assignee, who may encase the Pay Order. The share of appellant No.1 (widow) may be paid to her through an account payee cheque made out in her name and delivered to her on proper identification subject to her giving a personal bond that she will vacate the premises within three months from today. The share of the respondent Mst. Faiz-un-Nisa, mother of the deceased, will be paid to her also through an account payee cheque, made out in her name and delivered to her on proper identification. The shares of the two minors will be invested in their respective names in Special Saving Certificates by the official assignee. Appellant No.1 and respondent shall hand over vacant possession to the Official Assignee who shall hand over possession to the auction‑purchaser.

4. It may be clarified that in case it is found that there are any dues, taxes or charges payable in respect of the property in appeal for the period upto the date the possession is handed over to the auction‑purchaser the same will be paid by the parties according to their proportionate share in the property as the sale in favour of the auction‑purchaser is free from all expenses, charges, taxes and encumbrances. The parties can remove movable goods from the property in question. No construction will however, be dismantled and removed except that appellant No.1 can remove shutters from the 5 shops that she has installed. An amount of Rs. 6,312 had been incurred by the Official Assignee on account of advertisement charges out of which Rs.3,000 has been paid by Mr. Abdul Muqtadir Khan on behalf of the respondent. The balance amount of Rs.3,312 will be paid by appellant No.1. This amount may be adjusted from the amount payable to her as her share. Official Assignee states that he is not claiming any fee. AA./S‑893/K Order accordingly.