1989 PLP 1365 (CLC)

QAISAR AHMAD HAMIDI, J.‑‑For the purposes of this appeal the following statement of facts would suffice:‑

2. In the Execution Application No.90 of 1986, filed by respondent No.l, against the property of respondent No.3, the Nazir of this Court put to sale the said property by inviting offers from public, through advertisement which appeared‑ in Daily `Dawn' dated 3‑5‑1987. The appellant made the highest offer for Rs.48,52,080 in response to the aforesaid public invitation. The respondent No.2, gave the offer for Rs.40,17,

000. The reference of the Nazir about the aforesaid offers, came up for hearing before a learned Single Judge on 31‑5‑1987, when respondent No.l filed objections and in consequence thereof both the appellant and respondent No.2 were allowed to raise their offers. The offer of Rs.70,00,000 made any respondent No.2 was accepted by the learned Single Judge and he was declared as the purchaser of the said property. The respondent No.2, gave an undertaking to deposit 25% of the bid money of Rs.70,00,000 with the Nazir of this Court by 4‑6‑1987, and the balance within two weeks thereafter. This undertaking was accepted and a consent order to this effect was passed on the same day, viz., 31‑5‑1987. On 8‑6‑1987, an application under section 151, C.P.C. was moved on behalf of respondent No.2, for extension of time for the payment of 75% of bid money, but the same was rejected by the learned Single Judge vide order dated 11‑6‑1987. The appellant, who was present in Court then made an application wherein he accepted the price of Rs.70,00,000 for the said property and showed his willingness to deposit the balance in Court on 18‑6‑1987, in terms of the order of the learned Single Judge dated 31‑5‑1987. The learned Single Judge while dismissing the application of respondent No.2, on 11‑6‑1987, passed the following order:‑ "Even otherwise, it is apparent that the order dated 31‑5‑1987, passed by me which has been accepted by all the parties present and concerned, who put their signatures thereon, is binding on them all. In result, extension for two weeks cannot be granted, and in case of non compliance of the ,aid order to deposit balance amount within the time allowed, the property will go to the next highest bidder Iqbal Ahmad, who is present in Court and undertakes to pay the amount of Rs.70,00,000 after adjusting the amount already lying with the Nazir by 21‑6‑1987. Since fifteenth day for depositing the balance amount by the successful debar will expire on Friday, 19‑6‑1987 on his failure to pay the balance amount on Saturday, 20th June, 1987, the next highest bidder who is now, in fact, an equal bidder will deposit the entire amount by 21st, June.1987."

3. The appellant, being aggrieved by the observations made in the operative part of this order has challenged the same in this appeal.

4. We have had the benefit of a very able arguments on both the sides. The principal ground of attack made on behalf of the appellant is about the calculations of dates of deposit made in the impugned order, which are contrary to common intention and import of the consent order dated 31‑5‑1987, and also against the written submission made by appellant before the Court. The learned counsel for the appellant has invited our attention to the provisions of Order XXI, Rule 85, C.P.C., which lay down that the full amount of purchase‑money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property. According to the learned counsel for the appellant the respondent No.2, should have deposited the balance amount by 18‑6‑1987, which was not done and in such a situation even the consent of the parties concerned will not invest the Court with power to extend the time, for after the expiry of fifteenth day, the sale becomes a nullity and non‑existent. Reliance is placed upon cases reported as Nawal Kishore and others v. Butta Mal and another A.I.R. 1935 Allahabad 243), A.R. Dawar v. Jhinda Ram AIR 1938 Lah. 198, Smt. Annapurna Dasi v. Bazlay Karim Fazley Moula AIR 1941 Calcutta 85, Haji Inamullah v. Muhammad Idris A.I.R. 1943 Allahabad 282 , Feroze Din Faiz v. Chaman Lal and others P L D 1953 Lahore 83, Hukumchand v. Bansi tal and others A I R 1968 S.C 86, National Bank of Pakistan v. M/s. Nasir Industries and others 1982 C L C 388, and Re‑Synthetic Chemical Company Ltd. (P L D 1988 Karachi 429). The ratio decidendi of the above authorities is that the payment of 75 % of balance purchase‑money contained in Order XXI, Rule 85, C.P.C. is mandatory in nature and non‑compliance thereof renders a sale void.

5. The legal position above set forth is a subject of sharp conflict among the Courts of India and Pakistan. A contrary view is taken in Nathu Mal v. Malawa Mal and others, reported in A.I.R: 1931 Lahore 15, Choudhry Abdul Rashid and others v. The New Bank of India and others, reported in P L D 1959 Lahore 224, and Sint. Periyakkal and others v. Smt. Dakshyani, reported in A I R 1983 S.C. 428.

6. We do not find it necessary to discuss these authorities in detail, because we are of the view that the respondent No.2, cannot be held responsible for the alleged default in compliance with the order of the learned Single Judge dated 31 5‑1987, for various reasons. The order dated 31‑5‑1987 makes it clear that the learned Single Judge accepted the bid of respondent No.2 and directed him to pay 25% of the bid money of Rs.70,00,000 by 4‑6‑1987 and the balance within two weeks thereafter. On 11‑6‑1987, the application of respondent No.2 for extension of time was rejected and while doing so, the learned Single Judge clarified his earlier order for the deposit of balance in the following words:‑ "Since fifteenth day for depositing the balance amount by the successful bidder will expire on Friday, 19‑6‑1987, on his failure to pay the balance amount on. Saturday, 20th June, 1987, the next highest bidder who is now, in fact, an equal bidder will deposit the entire amount by 21st June, 1987."

7. Admittedly the respondent No.2 deposited the balance on 20‑6‑1987, as ordered. The appellant went out of picture on 31‑5‑1987, when the highest offer of respondent No.2 was accepted by the learned Single Judge. He re‑entered into the scene on 11‑6‑1987, and raised his bid to Rs.70,00,000 which was accepted conditionally, and he was allowed to make payment of the balance amount on 21 (‑1987, after respondent No.2, failed to make payment by 20‑6‑1987. On the face of it the appellant was not an aggrieved person for the purpose of this appeal. He A had no right to raise offer on 11‑6‑1987, when the sale was accepted in favour of respondent No.2, on 31‑5‑1987. At any rate no vested right had accrued to the appellant and the appeal filed by him is wholly misconceived.

8. Order XXI, Rule 65, C.P.C. provides that save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be' made by public auction in manner prescribed. Admittedly, the Nazir of High Court of Sind, Karachi had put to sale the property in question by inviting public I offers through advertisement. The offers received from the appellant and respondent No.2 were not accepted by the Court and the property was disposed of through negotiations in which both the parties had participated. Such a deviation, if ,made to serve the ends of justice had the approval of the Supreme Court in Mst. Asma Zafar‑ul‑Hasan v. M/s. United Bank Ltd. and another, reported in 1981 S.C.M.R. 108, in the following words: "The learned counsel vehemently urged that the property could not be sold otherwise than by auction. For this proposition, he placed reliance on rule 65, Order XXI, C.P.C. and rule 351 of the Chief Court Rules (Original Side). These provisions do prescribe mode of disposal by public auction, but neither of them expressly or by necessary implication prohibits any other mode of disposal. Therefore, if the Court had deviated from this mode of disposal to serve the ends of justice, no exception can be taken to it."

9. There is, therefore, good deal of convincing force in the contention of Zir. A.I: Chundrigar, learned counsel for respondent No.l, when he states that where the property is disposed of by way of negotiations, and the terms are determined by the Court, the provisions of Order XXI, rule 85, C.P.C. do nor apply in strict sense.

10. As observed in Ch. Abdul Rashid and others v. The New Bank of India Ltd. and others reported in P L D 1959 Lahore 224, the orders of Court shall not I operate to the prejudice of a party which had obeyed them. The order dated 11‑6 1987, passed by learned Single Judge directing the respondent No.2, to deposit the balance amount by 20‑6‑1987, was accordingly complied with. The maxim: Actus curiae neminem gravabit (No one should be prejudiced by the act of Court), is, therefore, fully attracted m this case. It appears that technicalities were pushed to extreme in this case.

11. Concluding, therefore, we are of the view that the order of the learned Single Judge dated 11‑6‑1987 is unexceptionable. Accordingly, the appeal is without substance and is dismissed with costs. Since we have finally disposed of the main appeal, all Misc. applications have become infiructuous and are disposed of as such. AA./I‑74/K Appeal dismissed.