P L D 1988 Karachi 508 (PLP)

By a short order passed yesterday, these two applications were granted and Nazir's reference was disposed of. Reasons for the short order are given here.

2. This suit for administration of the estate of late Moosa s/o Ibrahim Sorthia was filed in 1978 by plaintiff Ahmed Ali. Ahmed Ali and the nine defendants are the widow, sons and daughters of Moosa Ibrahim. During pendency of the suit, defendant No.S, the widow died. Her legal heirs were already on record, namely, the sons and daughters of Moosa Ibrahim. By order dated 8‑10‑1979, a preliminary decree was passed in accordance with the provisions of Order XX, rule 13(1), C.P.C. The Commissioner appointed by the preliminary decree to enquire into the assets and liabilities of the deceased submitted his report and by order dated 21‑2‑1984 it was held that the estate of the deceased comprised a sum of Rs.48 in an account in Rampart Road Branch Karachi of Muslim Commercial Bank Limited and an immovable property bearing No.N.P.2/28/11‑4(G‑1) situated in Napier Quarters, Karachi with an electric "Kohlu" installed therein (the immovable property is hereinafter referred to as "the suit property"). By the said order dated 21‑2‑1984, the Nazir of this Court was directed to inspect the suit property with the help of an expert to find out whether the property was capable of being partitioned by metes and bounds among the heirs of the deceased. Nazir's report dated 8‑8‑1984, which was supported by the inspection report of the expert/ architect, had shown that the suit property could not be partitioned. By order dated 31‑1‑1985, a final decree was passed and the suit property, was directed to be sold through public auction and then distribution of .the sale proceeds among the parties as legal heirs of deceased Moosa Ibrahim. By the order dated 31‑1‑1985, the parties were allowed to take part in the auction. Nazir held the auction on 25‑3‑1986 and the highest bid of Rs.14,25,000 made by Muhammad Saleem and Jan. Muhammad was accepted by the Nazir subject to confirmation by the Court. According to Nazir's reference dated 17‑4‑1986, 1/4th of the bid amount was deposited with him by the two auction‑purchasers on the spot and the remaining 3/4th of the bid amount was deposited by them through a pay order on 7‑4‑1986. Nazir made his reference dated 17‑4‑1986 for confirmation of the sale of the suit property in favour of the auction purchasers or for any other appropriate order.

3. Five defendants, namely, Noor Muhammad, Usman Ghani, Mst. Sharifa Bai, Mst. Rabia Bai and Mst. Zubaida Bai, filed two applications i.e C.M.A. 1735/86 and C.M.A. 2253/86. C.M.A. 1735/86 is an application under Order XXI, rule 89, C.P.C. read with section 151, C.P.C. and it was filed on 1‑4‑1986 and the prayer in this application is as follows:‑ "It is, therefore, respectfully prayed that this application may be allowed and the applicants be permitted to deposit 5$ of the sale price of Rs.14,25,000 in Court and the auction in favour of Respondents Nos.l and 2 be cancelled and the property may be given to the applicants on the sale price for which it has been auctioned and the applicants may be given the possession of the property on payment of the share of the auction price to the plaintiff and other defendants according to their share of inheritance under Shariat. The applicants may be given vacant possession of the property according to the terms and conditions of the auction." The other application (C.M.A. 2253/86) also filed on behalf of the same 5 defendants, was presented on 24‑4‑1986.. It is titled as an application under Section 151, C.P.C. and the application is reproduced here:‑ "In the above‑noted case the applicant has moved an application under Order XXI, Rule 89 read with Section 151, _ C . P. C . (being Civil Misc. No.1735/86). The applicant has also deposited a sum of Rs.71,250 being the 5$ of the purchase price for the auction‑purchaser and further sum of Rs.7,12,500 for distribution amongst the decree‑holder and other share‑holders in the property. It is, therefore, prayed that the auction made in favour of Saleem and Jan Muhammad be cancelled and the petitioner's father's property which has been sold due to unfortunate dispute between the heirs may kindly be handed over to applicants 1 to 5 and the auction made in favour of Saleem and Jan Muhammad be cancelled." By order dated 30‑9‑1986,a learned Single Judge of this Court referred the matter to the Hon'ble Chief Justice for reference) of the following point to‑ a larger Bench:‑ "Whether the provisions of Order XXI, rule 89 C.P.C. should be universally applied to all auction sales without distinction and irrespective of the fact whether the sales are in pursuance of money decree or other decrees and whether auction sales held in partition suits or Administration Suits etc. are beyond the scope of rule 89 of Order XXI as held by Aftab Hussain, J. (in P L D 1975 Lah.1393)." The question was referred to a Division Bench of this Court and by their order dated 23‑4‑1987, the Division Bench answered the first part of the above question in the negative and second part in the affirmative. The applicants took the matter to the Supreme Court of Pakistan. By order dated 30‑8‑1987, the Supreme Court of Pakistan remanded the matter to the Division Bench of this Court. This order of the Supreme Court is reproduced here:‑ "By consent of the learned counsel for the parties this petition is converted into appeal and the case is remanded to a learned Division Bench of the Sind High Court to reconsider the case of the parties in view of the judgment of this Court in Illahi Noor and 4 others v. Muhammad Din P L D 1977 S C

634. Appeal allowed and disposed of as above." On remand the matter was again taken up by the learned Division Bench of this Court. Relevant part of the order dated 18‑2r1988 of the Division Bench is reproduced here:‑ "Mr. Fazle Ghani Khan, learned counsel for the applicants has submitted that the factum that the judgment of Aftab Hussain, J., in the case of Muhammad Din v. Illahi Noor and 4 others P L D 1975 Lah.1393 was vet aside (which is reported under the caption of Mst. Illahi Noor and 4 others v. Muhammad Din P L D 1977 S C 634) was not brought to the notice of the learned Single Judge as well as to this Court when the matter was last argued. The Supreme Court has held in the above case that the provision of Order XXI, rule 89, C.P.C. excluding clause (b) of sub‑rule (i) of the above rule is applicable to a sale in pursuance of a partition decree. It has also been pointed out in the above judgment that since no rules were framed by the Lahore High Court for regulating the procedure for sale in partition suits, the provisions of Order XXI, C.P.C. would be applicable. In view of the above Supreme Court judgment the above reference has become academic. However, since the Hon'ble Supreme Court has desired that the above question is to be re‑heard by this Division Bench we have proceeded with it.

6. It has been contended by the learned counsel for the auction purchasers Mr. Noorullah A. Manji and Mr. Hussain Adil Khatri, learned counsel for the remaining legal representatives that the ratio decidendi for the above Supreme Court case is not applicable to the present case as the High Court of Sind has the statutory rules relating to a sale in pursuance of a partition decree, namely, the Chief Court of Sind (Original Side) Rules (hereinafter referred to as the Rules). It has also been further contended by them that in any case the instant case is not a fit case, in which the Court should exercise its power under the provision even if it is to be held that the same is applicable. In our view, we are not concerned with the latter submission of the learned counsel for the auction‑purchasers and the counsel for the remaining legal representatives as the above submission is to be examined by the learned Single 'Judge and is not the subject‑matter of this reference. The only question for consideration before us is, as to whether in view of the Rules we can hold that the above Supreme Court case is not applicable. Mr. Noorullah Manji has referred to rule 552 of the Rules, which provides that the rules 337 to 351 so far as the same are applicable, shall apply to sale in pursuance of a partition decree and the Court may grant leave to any party to bid for and purchase the property or any part thereof. In this regard, it may be pointed out that the above rules 337 to 351 of the Rules relate to the sale of attached property and there are no separate rules for sale in a partition decree. We may also point out that none of the above rules contained any provision, which can be construed as a provision inconsistent with the provision i.e. Order XXI, rule 89, C.P.C. We may also observe that nothwithstanding the fact that the above rules are applicable to an execution application of a money decree, it has been held that the provision can be pressed into service by the judgment‑debtor in such execution application. It must therefore, follow that the factum that the Rules have been .framed in this Court will not render the above Supreme Court case inapplicable. In this view of the matter the above judgment of Supreme Court of 1977 is clearly applicable to a sale in pursuance of a decree for partition excluding the provisions of clause (b) of sub‑rule (i) of rule 89 of Order XXI, C.P.C. However, it is for an executing Court to examine, whether an application under the provision is to be granted or not to be granted in a particular case keeping in view the facts of the case.

7. We are, therefore, inclined to hold that the principle contained in the provision in view of the above Supreme Court judgment of 1977 in the case of Mst. Ellahi Noor can be pressed into service for sales ‑Under Partition Act if the facts of a case so warrant. The above reference stands disposed of in the above terms."

4. I heard the arguments of Mr. Fazle Ghani Khan, learned counsel for the applicants, Mr. Noorullah Manji, learned counsel for the two auction‑purchasers and Mr. Hussain Adil Khatri, learned counsel for the plaintiff. It was contended by Mr. Fazle Ghani Khan that the judgment of the Supreme Court of Pakistan in the case of Mst. Ellahi Noor v. Muhammad Din (P L D 1977 S C 634) and of the Division Bench dated 18‑2‑1988 in this case have, in very clear terms, held that the provisions of Order XXI, rule 89, excluding clause (b) of sub‑rule (i) thereof, are applicable to a sale in pursuance of a partition decree. Rule 89 of Order XXI of the Code of Civil Procedure reads as follows:‑ "89.‑Application to set aside sale on deposit.‑(1) When 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 such 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 sale as that for the recovery of which the sale was 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 90 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 costs and interest not covered by the proclamation of sale."

5. Both Mr. Noorullah Nanji for the auction‑purchasers and Mr. Hussain Adil Khatri for the plaintiff, however, argued that the application under Order XXI, rule 89, C.P.C. filed by the applicants was not maintainable, decisions of the Supreme Court in P L D 1977 S C 634 and of the Division Bench dated 18‑2‑1988 in this case notwithstanding. It was stressed that the applicants (5 of the defendants) had not taken benefit of the orders passed in this case permitting the parties to take part in the auction. It was emphasized that all the legal heirs of the deceased had not joined as applicants and only some of the legal heirs wanted the auction in favour of the auction‑purchasers to be set aside. It was pointed out that P L D 1977 S C 634 could be distinguished as here the Chief Court of Sind (Original Side) Rules contain specific rules relating to sales pursuant to partition decrees. I find no substance in any of the aforesaid contentions. It may again be pointed out that the Division Bench of this Court, by order dated 18‑2‑1988 passed in this case, has held that, in view oy P L D 1977 S C 634, the principle contained in Order XXI, rule 89, C.P.C. can be pressed into service for sales under the Partition Act! if the facts of a case so warrant. And in P L D 1977 S C 634, it has been held by the Supreme Court that the provisions of Order XXI, J rule 89, C.P.C. (excluding clause (b) of sub‑rule (i)) are applicable to sales pursuant to partition decrees. In view of these enunciations, there is hardly any room left for advancing the proposition that a legal heir, whether a plaintiff or a defendant in an administration A suit, who acquires a share in any immovable property on the death of his predecessor‑in‑interest, is not entitled under the law to move an application for setting aside the Court auction of such immovable property, resting his application on the principle contained in Order l rule 89, C.P.C. The fact that some of the legal heirs, and not all, have moved the application under Order XXI, rule 89, C.P.C. does not create an exception to the principle laid down by the Supreme Court. Same observation can be made about the contention that the parties had been allowed to take part in the Court auction but the applicants did not take any advantage of the same. The submission about the existence of statutory rules (in the Chief Court of Sind Original Side Rules) relating to sales pursuant to partition decrees. has been specifically and squarely dealt with and rejected by the Division Bench in their Order dated 18‑2‑1988. No case is, therefore, made out that the application filed by the 5 applicants under Order XXI, rule 89, C.P.C. is not maintainable. The application has been made competently and is maintainable. Here it may be observed that though this was an administration suit, as the properties left by the deceased included an immovable property and all the legal heirs acquired shares in such immovable property in accordance with the law of inheritance, this suit, as regards relief relating to such immovable property, is in effect a suit for partition. In . fact, one of the prayers in this case is "The immovable property bearing property No.N.P. 2/28/11‑H be partitioned and the parties be put in possession of their respective shares in the said property"

6. On merits also the application under Order XXI, rule 89, C . P. C . was vehemently opposed both by Mr. Noorullah Manji and Mr. Hussain Adil Khatri. The argument that the parties had been permitted to take part in the Court auction but the applicants did not take advantage of such permission and allowed the highest bid to be given by the two auction‑purchasers advanced in connection with the maintainability of the application under Order XXI, rule 89, C.P.C. was repeated while opposing the application on merits. On merits also this contention has no merit. If the application is maintainable in law, the application cannot be dismissed for the same reason. Actually the argument was that the Court has the discretion to allow or dismiss such application. If .the application is maintainable and the applicant fulfils the requirements of the applicable provision, the Court will not dismiss the application arbitrarily without assigning any reason. In the instant case, the applicants have applied within time and also deposited in Court an amount equal to 5$ of the total bid as solatium for the auction‑purchasers, in accordance with the" requirement of Order XXI, rule 89, C.P.C. The applicants admittedly own 50$ share in the suit property and the other half share belongs to the plaintiff and other defendants not represented by Mr. Fazle Ghani Khan. The applicants have also deposited within time another sum of Rs.7,12,500 (i.e. half of the total bid amount) in Court for payment to the plaintiff and other defendants. There are, therefore, two groups of claimants for the suit property, namely, the two auction‑purchasers and the 5 applicants. If the Court has discretion to give the property to either of the two groups, the Court will surely give the property to the applicants, who are 50$ owners of the suit property as against the auction‑purchasers for whom there is a provision for payment of 5$ compensation in case auction in their favour is cancelled, which amount has been deposited in court. within time by the applicants. The other contention on merits raised by Mr. Noorullah Manji was that the entire amount of Rs.14,25,000 had not been deposited by the applicants but only a sum of Rs.7,12, 500 had been deposited by them. This contention also has no force. As noticed earlier, the five applicants admittedly own 50% share in the suit property and the remaining half is owned by the plaintiff and other defendants. In the circumstances it would have been a useless exercise for the applicants to deposit. another amount of Rs.7,12,500 representing their share. I am, therefore, of the view that the application of the applicants under Order XXI . rule 89 C . P. C . is not liable to be dismissed‑ on the ground that they deposited only Rs.7,12,500 and not the total amount of Rs.14,25,

000. For the aforesaid reasons, I had passed the short order dated 15‑5‑1988 allowing the two applications filed by the applicants. A.A./A‑368/K Order accordingly.