2005 PLP 1111 (CLD)

FARRUKH LATIF, J.

Facts of this execution first appeal are that on 9-9-1999, in an execution of money decree passed in favour of U.B.L. (respondent No.1), immovable property of appellant No.3 was sold in auction in favour of respondent No.2. Said appellant was guarantor of appellants Nos. 1 and 2 (judgment-debtors). Before the execution had commenced, appellant No.3 had submitted an application to the Court auctioneer that she is prepared to pay the amount due and recoverable hence auction be postponed and she be provided an opportunity for payment of the amount. The auctioneer did not take any action on the said application but made a reference thereof in auction proceedings and attached the application with the auction report submitted by him in the Executing Court.

2. The appellants thereafter moved an application under Order XXI, rule 90, C.P.C., in the Executing Court, for setting aside the aforesaid sale on allegations of irregularity in publishing the auction and conducting the sale and simultaneously offered that they were prepared to deposit an amount of equivalent to that deposited by auction-purchaser and to deposit the balance amount due from them within reasonable time allowed by the Court. Said application was dismissed by the Executing Court on 8-11-1999.

3. In this E.F.A. aforesaid order of the Executing Court is assailed. It is alleged by the learned counsel for the appellants that appellant No.3, Mst. Naseem Akhtar is a Pardah Nasheen woman whose property was sold in auction at a throwaway price; that before the commencement of auction she had submitted an application to the Court auctioneer that she was ready to pay the amount due and recoverable said application was submitted in the Court along with the auction report but was not disposed of by the Executing Court, that auction having not yet been confirmed, she was well within her right to get the sale set aside on the grounds mentioned in the application and that the appellants had also filed two applications on 12-11-1999, one under Order XXI, rule 89 and the other under Order XXXIV, rule 5, C.P.C. on the plea that 20 per cent of the auction money had been deposited by them and they may be allowed to pay the balance amount recoverable, said applications are also pending before the Executing Court.

4. Prayer in the appeal is that on the basis of the impugned order the Executing Court be restrained from confirming the auction in favour of the auction-purchaser (respondent No.2), the appellants be allowed to deposit the balance amount recoverable from them and the decree-holder bank (respondent No.1) be directed to redeem the property of appellant No.3.

5. Appeal is opposed by learned counsel for respondent No.2 (auction-purchaser) who besides supporting the impugned order has raised serious objections with regard to the competency and maintainability of the applications referred by the appellants which are not yet disposed of by the Executing Court. Said objections are not being mentioned for the reason that the above referred applications are to be disposed of by the Court where they are pending.

6. Arguments heard. Relevant record has also been perused.

7. Learned counsel for the appellants could not draw our attention to any irregularity committed in the publicity or the conduction of the auction and simultaneous relief sought in the application for setting aside the sale on the ground that objectors were prepared to deposit an amount equivalent to that deposited by the auction-purchaser, squarely fell within the purview of rule 89 of Order XXI, C.P.C. which could not be claimed unless application under rule 90 was withdrawn. There is, therefore, no legal infirmity in the impugned order.

8. Prayer of the appellants that they be allowed to deposit the balance recoverable amount cannot be accepted by us inasmuch as it is within the jurisdiction of the Executing Court to decide that matter which is pending before it in the form of application of appellant Nlo.3 (Mst. Naseem Akhtar) submitted to the Court auctioneer prior to the holding of the auction as well as the applications moved by the appellants under Order XXI, rule 89 and Order XXXIV, rule 5, C.P.C. which were submitted after the impugned order was passed. Case is accordingly remitted to the Executing Court with the direction that before making any order regarding confirmation of sale in question, to decide the aforesaid three applications in accordance with law after hearing the learned counsel for both the sides. With the above direction, this appeal is disposed of. Records of the lower Court be returned forthwith. S.A.K./A-115/L Order accordingly.