2007 PLP 2387 (YLR)

This order will govern the disposal of CMA No.158 of 2006, which is an application under sections 151 and 152, C.P.C., moved by appellant No.2, seeking review of the order dated 31-1-2006.

2. Briefly, the facts relevant for the disposal of this application are that in this appeal, which is directed against the order dated 18-5-2005 passed by learned Single Judge of this Court in Ex. Application No.39 of 2003, an order was passed on 21-12-2005 whereby the appellants were directed to deposit the total auction amount with 5% interest, with the Nazir of this Court on or .before 24-12-2005. It was further observed that in case entire amount was not deposited the matter will be dismissed on the next date of hearing.

3. On 17-1-2006, when the case came up before the Court, learned counsel Mr. Nawab Mirza, who was representing appellants in the case at that time made a statement at the bar that in case appellants failed to deposit the auction amount with 5% interest before the next date of hearing this appeal shall be deemed to have been dismissed automatically without any further orders to that effect, and order was passed by the Court accordingly. After passing of such order, when the matter again came up before the Court on 31-1-2006 Mr. Khalid Dawoodpota, Advocate appeared on behalf of the appellants and submitted that due to heart attack sustained by appellant No.1 the amount as ordered by this Court from time to time has nit been deposited. In view of such statement made by the learned counsel for the appellants, without disclosing the deposit of entire amount of Rs.12,39,000 by appellant No.2 respect of property No.R-44, Block 18, F.B. Area, Karachi claimed by him, it was observed by this Court in its order dated 31-1-2006 that due to non-deposit of amount the appeal automatically stood dismissed.

4. It is in the above background that the listed application has been moved by the appellant No.2 with the prayer that this appeal to the extent of appellant No.2 may be heard and decided on merits by review of order dated 31-1-2006 to that extent as the order dated 21-12-2005 was fully complied by him by way of deposit of entire amount of Rs.12,39,000 with the Nazir of this Court by 24-12-2005. In support of such claim of appellant No.2 statement in writing has been submitted before the Court on 9-5-2006 which is accompanied with the Photostat copies of three pay-orders and the copy of application dated 24-12-2005 addressed to the Nazir of this Court showing the acknowledgement of receipt of two pay-orders by the Nazir of this Court on 24-12-2005. These documents are not disputed thus it is established from the record that at the time of passing of order dated 17-1-2006 and 31-1-2006 no proper assistance was provided to this Court by disclosing these facts, which had resulted in passing of these two orders against the appellant No.2. Such mistake is evident from the face of the record and thus liable to be corrected in exercise of powers of review vested in this Court.

5. Mr. Shahid Hussain Malik, the auction purchaser in the case, did not dispute the facts, as stated on behalf of appellant No.2. However, he contended that the entire auction money of Rs.35 millions was supposed to be deposited by the appellants by 24-12-2005, therefore, deposit of only Rs.12,39,000 by the appellant No.2, in respect of one of the auctioned property was not the strict compliance of such directions of this Court contained in the orders dated 21-12-2005 and 17-1-2006, which makes this application liable to be dismissed.

6. Having carefully gone through the case record, we are not in agreement with such submissions of the auction purchaser, for the simple reason that the twee properties auctioned during the proceedings of Ex. Application No.39 of 2003 were auctioned separately, and in such circumstances the appellant No.2, by way of deposit of Rs.11,80,000, the highest bid amount, along with 5% interest was claiming only property No.R-44, Block 18, F.B. Area, Karachi, in his possession. Thus to that extent he was justified in claiming that compliance of. order dated 21-12-2005 and 17-1-2006 was made by him in its letter and spirit. Mr. Naveedul Haq learned counsel for the respondent No.1 Bank has also conceded to this position.

7. Considering the above-noted aspect of the case, we are of the review that the mistake pointed out by the appellant No.2, in the form of listed application, is apparent on the face of the record. It has occurred. primarily due to lack of proper assistance by the learned counsel for the appellants Nos.l and 2, who did not disclose these relevant facts. In such circumstances, the appellant No.2 cannot be made to suffer for this reason. Accordingly, the order dated 31-1-2006 is reviewed to the extent that the present appeal is restored only to the extent of the claim of appellant No.2 in respect of Property No.R-44, Block 18, F.B. Area, Karachi. Office is directed to fix this appeal ' for hearing before the Court on 11-1-2007, on which date no further adjournment will be allowed to the appellant No.2. Till then the appellant No.2 shall not be dispossessed from Property No.R-44,. Block 18, F.B. Area, Karachi. It is clarified that appeal on behalf of appellant No.1 stands dismissed in terms of the earlier order passed in this appeal. Therefore, in respect of the remaining, two auctioned properties the executing Court is free to proceed in accordance with law. Applications at Serial Nos.1 and 4 are dismissed being not pressed. Application at Serial Nos.2 and 5 are adjourned to 11-1-2007. M.B.A./A-79/K?????????????????????????????????????????????????????????????????????????????????? Order accordingly.