P L D 1977 Supreme Court 634 (PLP)

DORAB PATEL., J.--The appellants are the legal heirs of one Allah Din deceased who had owned several properties. In the events that happened, the first three appellants filed a suit for partition in the Court of the Civil Judge, Rawalpindi against the other appellants for the partition of the properties inherited by them from Allah Din. A preliminary decree for partition was passed on 15-3-1971 and as according to the Commissioner the property in dispute in this appeal could not be divided, he proposed that it should be disposed of by public auction The Court accepted this recommendation and on 8-6-1973, the learned Civil Judge passed an order for the disposal of the property by a public suction. The auction was held in due course and as the highest bid was by the respondent it was accepted. The appellants, however, objected to the manner in which the auction had been filed and on the footing that the Court's order for the auction was a decree they filed an application under Order XXI, rule 90 of the Civil Procedure Code for setting aside the auction. Later, as they settled their differences, they dropped this application and filed an application under Order XXI. rule 89 (hereafter called the rule) for setting aside the auction. and in compliance with the provisions of the rule, they also deposited 5 % of the auction price for the respondent's benefit. The respondent opposed this application but the learned Civil Judge allowed it by his order dated 18-1-475 on the ground that the application was within time and that the parties "have effected a solid compromise amongst themselves". The respondent challenged this order in a Revision in the Lahore High Court which was allowed on 23-5-1975. Therefore, the petitioners filed a petition for leave in this Court, which was admitted. The learned Judge of the High Court was of the view that the trial Court's order for the sale of the property by public auction was a decree, therefore, he held that the trial Court had usurped jurisdiction by setting aside the sale in the respondent's favour and, according to the learned Judge, the trial Court had usurped jurisdiction because the decree for the sale of the property had become final, and could only have been set aside in a Review application. In reaching this conclusion, the learned Judge relied on this Court's judgment in Mirza Adam Khan v. Muhammad Sultan PLD1975SC9, in which it was held that an order for the sale of a property in a partition suit vas a decree. I respectfully agree with this judgment. An order for the sale of a property in a partition suit is a decree within the meaning of the Civil Procedure Cede. This follows from the plain language of section 8 of the Partition Act, 1893, but because a decree-holder has obtained a decree, it does not mean that he must be compelled to execute' it, and, a decree-holier is entitled to settle a suit if he so wishes even after he has obtained a decree in his favour, therefore, it was open to tire appellants to take steps under Order XXIII of the Civil Procedure Code to settle their dispute, despite the decree for the sale of the property. Mr, Ansari then submitted that the parties had not filed any application under Order XXIII of the Civil Procedure Code in the trial Court, but, that was not the view taken by the learned Judge in the High Court, and on the other hand, the learned Civil Judge had held that the parties had entered into "a solid compromise". However I will presently revert to this aspect of the case. The other ground given by the learned Judge for allowing the Revision was that the rule did not apply to a partition suit. The rule in so far as it is relevant, reads: "

89. Application to set aside sale on deposit,-(I) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on the 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 proclamation of sate as that for the recovery of which the sale wag ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applies under rule 9) 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 casts and interest not covered by the proclamation of sale." Now as observed by Woodroffe, J. in Nirode Nath Bannerjee aced another v. Amullya Dhone Bannerjee and another A I R 1923 Cal. 582. the parties in a partition suit are necessarily decree-holders and judgment-debtors ay the same tinge, therefore, in the absence of any provisions to the contrary a decree in a partition suit should be executed as far as possible in the manner prescribed in Order XXI of the Civil Procedure Code, because this Order prescribes the manner in which decrees are to be executed, and it could not have been . the intention of the Legislature that Courts should sell properties in partition[ suits in an arbitrary manner, I now turn to the Partition Act and the only section which is relevant is section

7. It reads: "Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as fax as practicable, be adopted, namely:- (a) If the property be sold under a decree or order of the High Court . . . . . . in tie exercise of its original jurisdiction . . . . . . . . .the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrars (b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees." The property in the instant case was sold by a District Court, and as pointed out by the learned judge , rules have not been framed by the Lahore High court for regulating the procedure for sales in partition suits, therefore, the property had to be sold accordance with the provision of the order XXI counsel that for example the provision of rule 66 of this order had been complied with therefore Mr, Mahboob submitted that as rule 66 was applicable to the sale so was the rule. This submission is correct because there is no provision to the contrary irk the Partition Act. However, in holding that the rule was not applicable the learned. Judge observed a "Section 7 provides that, the other procedure for the sale will be such as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in, the Code of Civil Procedure in respect of sales in execution of decrees." With all respect to the learned Judge, this direction about following "the procedure prescribed in the Code of Civil Procedure in respect off sales in execution of decrees" is subject to the opening words of the section namely, "the following procedure shall as far as practicable be adopted". Redun dancy cannot be attributed to the Legislature, nor ignorance either. There fore, In applying any provision of Order XXI, the Court has, in the exercise of its judicial discretion to disregard that part of the provision which cannot be applied to sales in partition suits. Secondly, whilst there may be cases in which co‑owners in a partition suit may have a net claim against one another, there will be many cases in which the only relief sought would be the division of the sale proceeds of the property that had been jointly owned. In such cases, there would neither be a decree‑holder nor would there be any question of payment to a decree‑‑holder within the meaning of clause (l&) of sub‑rule (1) of the rule, and the wording "as far as practicable has been inserted for contingencies like this. Mr. Ansari's next submission was that it would be unjust and inequitable if the sale in the respondent's favour was set aside on payment of a mere solatium of five per cent. of the auction price. But if this solatium is sufficient; compensation for setting aside a sale in execution of a decree for a debt; which has not been honoured, there is no reason why the same amount would not be sufficient compensation for setting aside a sale in a partition suit. In any event, the question is of the intention of the Legislature and as the provisions of Order XXI, have to be applied to sales in partition suits only "as far as practicable", I would hold that the rule is applicable to such sales, subject to the condition that clause (b) of sub‑rule (1) of the rule would not be applicable to sales like those in the instant case and I may observe here that a Division Bench of the Calcutta High Court had taken this view more than fifty years ago in Niroda Nath Bannerjee'e case. Mr. Ansari then referred us to the judgments on which the learned Judge bad relied, and, I would only refer here to the two of these judgments. In Jiban Krishna v. New Beerbhum Coal Co. A I R 1960 S C 297 as the judgment‑debtor had failed to pay the decretal amount in the agreed instalments the trial Court had appointed a receiver to sell his properties. This sale was challenged before the Indian Supreme Court but their Lordships pointed out that the sale had been effected by a receive: on whom the Court had expressly conferred all the powers under Order XL, rule 1(d) of the Civil Procedure; Code, and that the provisions of Order XXI, were not applicable to a sale of property by a receiver its the exercise of his powers under Order XL. Therefore, the judgment is not relevant, but, as in the instant case, it would appear that the appellant had attempted to seek relief under the rule. This plea was rejected because the judgment‑debtor bad committed repeated default in passing the instalments due from him. But Gajendragadkar, J., had, further, observed that the rule could not be applied to a sale by a receiver because clause (b) of sub‑rule (1) of the rule was "one of the two essential conditions for the successful prosecution of an application under the said rule". Mr. Ansari submitted that these observations supported the view taken by the learned Judge. The submission i3 fallacious because the observations in a case always have reference to the facts of that case and as the observations of Gajendragadkar. J., bad reference to a sale under the Civil Procedure Code, they are not relevant to a sale in which the Procedure of the Code "shall as far as practicable be adopted". The learned Judge had also relied on a judgment of Costello, J., In Gahur All Korlkar and others v. Sm. Asia Khatun and others A I R 1933 Cal. 96.. With all respect to the High Court, this judgment too was distinguishable on the facts, because the dispute was about properties which had been sold for wilful violation of the trial Court's order, and Costello, J., observed: "that the proceedings under Order XXI. rule 32, whatever the ultimate result may be, are clearly intended to be of a penal character designed to punish persons who have wilfully disobeyed the order of the Court." As there is no question of non‑compliance of any order of the Court in the instant case, this judgment is of no assistance to the respondent's case. Mr. Ansari was conscious of this difficulty, but be referred us to the observa tions of Costello, J., that the `rule requires a two‑fold payment on the part of the person seeking to set aside the sale: ore payment. to the purchaser or purchasers and another the decree‑holder. This presupposes that there is some specified sum of money which is dues from a person or persons who was or were defendants in the suit, to the decree‑holder." These observations are based on the assumption that the rule can be applied to a sale in execution proceedings only if the entire rule is applicable to the sole. This assumption may be correct in the case of sales under the Civil Procedure Code, but it is not necessary to decide the validity of this assumption because sales in suits under the Partition Act are governed by the provisions of that Act. Therefore, this judgment and the other judgments relied upon by the learned Judge are no: relevant, and in my humble opinion, the appeal must be allowed. However, as I observed earlier, there was a controversy between the learned counsel as to whether the appellants had adjusted the decree for the sale of property in dispute. The observation of the trial Court that !he parries had entered into "a solid compromise" implies that the decree had been adjusted by consent under Order XXIII. Mr. Ansari vehemently submitted that as the view of the trial Court was erroneous, the property should be auctioned again. The appellants should have filed the relevant documents in support of their plea that the decree bad been disposed of lay "a solid compromise", and as they have not, I would not have been inclined to enter into this controversy. However, as one of the appellants is a lunatic, it is proper that we should give directions to prevent unnecessary litigation. Accordingly, I would allow the appeal and set aside the judgment of the High Court restoring the sale of the property in dispute in favour of the respondent. The amount deposited by the appellants for the respondent's benefit under the rule should, therefore, be paid to the respondent, and, I, further direct that if the appellants have not settled them disputes by an application under Order XXIII, they would still be free to approach the trial Court for relief in this respect. But if they fall to take the requisite steps within three months of this judgment, the trial Court should reauction the property in dispute. With these observations, the appeal is allowed but I leave the parties to bear their own costs. MUHAMMAD YAQUB ALI, C. J.‑I agree. MUHAMMAD HALEEM, J.‑I agree. S. A. H. Appeal allowed.