MUHAMMAD DIN Versus ELAHI NOOR

This petition is filed l against the order dated 18‑1‑1975 passed by Mr. Muhammad Ashraf Butt, Civil Judge, Ist Class, Rawalpindi, setting aside the auction sale made in favour of the petitioner, under the provisions of Order XXI, rule 89, C. P. C,

2. Respondents Nos. 1 to 3 filed a suit for partition of urban property under the Partition Act against respondents Nos. 4 and 5. A preliminary decree of partition was passed on 15‑3‑1971. Thereafter a Local Commissioner was appointed to carry out the actual partition. He reported that the property in dispute in the suit was not capable of partition. This report was given with the consent of the parties. The Court thereafter directed a sale of the property and the distribution of the proceeds thereof among the co‑owners as visualised by section 2 of the Partition Act. Muhammad Hussain defendant No. 1 was the highest bidder of some of the properties while Muhammad Din was declared to be the highest bidder of property No. R/393, Circular Road, Rawalpindi. Two applications were submitted by the respondents : one under Order XXI, rule 89, C. P. C. and the other under Order XXI, rule 90, C. P. C. Alongwith the application under Order XXI, rule 89, C. P. C., a sum equal to 5 per cent. of the auction price amounting to Rs. 4,550 was deposited within the period of limitation. Proviso to rule 90, subsection (1) provides that no application under that rule shall be entertained unless the applicant deposits such amount not exceeding 20 per cent. of the sum realised at the sale or furnishes such security as the Court may direct. The application under this rule was not pressed since finally the amount of 20 per cent. of the sale value was not deposited and secondly the application under rule 89 would not have been competent.

2‑A. The application under Order XXI, rule 89, C. P. C. was opposed mainly on the ground that that rule was not applicable, but this point was not considered in detail. The learned trial Court was of the view that since the applicants were members of the same family and they had effected a compromise among themselves and deposited Rs. 4,550 within limitation, the auction was liable to be cancelled.

3. The learned counsel for the petitioner argued that the order for selling the property passed under section 2 of the Partition Act, was a decree as provided by section 8 of that Act and since the intention of the learned trial Court is to set aside virtually that decree, the order is without jurisdiction, He argued that after passing the order under section 2, the learned trial Court became functus officio and had no jurisdiction except in exercise of review jurisdiction under Order XLVII to cancel or recall that order.

4. The learned counsel further argued that provisions of Order XXI, rule 89, C. P. C. were applicable only to sales which were made in execution of a money decree and consequently that provision could not be invoked by the respondents.

5. The learned counsel for the respondents, on the other hand, argued that the order under section 2 as such is not a decree. It would have the effect of a decree only if the sale of the property in favour of Muhammad Din had been confirmed by the learned Executing Court. He also argued that provisions of rule 89 of Order XXI, although not applicable in its entirety can mutatis mutandis apply to the sales held under the Partition Act. As such only that provision of rule 89, applies to this case, which allows the persons affected by the sale to pay a sum equal to 5 per cent. of the purchase money.

6. The first point raised by the learned counsel for the respondents is without any substance. Section 2 provides that "whenever in any suit fort partition . . . . . . it appears to the Court that, by reason of the nature of the] property to which the suit relates, or of the number of the shareholders therein or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders, interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds." Section 8 Inter alia provides that "any order for sale made by the Court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure." Clearly it is the order made under section 2 which amounts to a decree and nut a completed and confirmed sale. The order under section 2 being a decree becomes final unless appealed against. The question about the effect of section 8 came up for consideration before their Lordships of the Supreme Court in Mirza Adam Khan v. Muhammad Sultan (PLD 1975 SC 9). The question in that case was whether the provision of Order XXI, rule 95 was applicable to such a decree. This was answered in the affirmative and it was held that order of sale could be executed in the manner prescribed in rule 95 of Order XXI of the Code. I am, therefore, of the view that the order of slae being a decree, it is no within the competence of the Court to set it aside except under the provisions of Order XLVII, C. P. C. which has not been invoked in the resent case The learned trial Court has, therefore, acted without jurisdiction in setting aside the sale on the compromise between the parties virtually with a view to set aside the decree passed by it under section 2 read with section 8 of the, Partition Act.

7. In view of this finding, it is not necessary to consider the question of applicability of rule 89 of Order XXI. I am, however, of the opinion that this rule is also not attracted to the facts of the present case. Rule 89 reads as follows :‑‑

"Rule 89: (1) 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 his 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 fn 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."

Sub‑rule (1) provides for two types of deposits by the persons affected by the sale. One is the five percent. of the purchase money for payment to the purchaser and the other is the amount specified in the proclamation of sale for payment to the decree‑holder. It is clear from the provisions of rule 89 that it is attracted only to those cases where the sale has been effected in execution of a money decree and not in execution of decree under the Partition Act. It is also evident that both these deposits which have been referred to in this rule, must be made by an applicant for setting aside the auction sale.

8. In Gahur Ali Karikar and order v. Sm. Asia Khatun and others (A I R 1933 Cal. 96), it was held that the provisions of this rule are not applicable to sale made under Order XXI, rule 32, C. P. C. The ratio of this case is that rule 89 can have no application where a sale takes place under Rule 32(3) because the proviso (b), sub‑clause (i) of rule 89 cannot be complied with by the person applying to have the sale set aside. There are similar observations in a case decided by the Supreme Court of India in Jibon Krishna Mukherjee and another v. New Beerbhum Coal Co. Ltd. (AIR 1960 S C 297). It was held that rule 89(i)(b) cannot be complied with in a sale by a Receiver and as such that rule is not applicable to such a sale. It was also held that "It is evidently one of the two essential conditions for successful prosecution of an application under the said rule." The words underlined by me establish that both these conditions in rule 89 are essential.

9. The learned counsel for the respondents relied upon section 7 of the Partition Act in support of his arguments. Now there are two provisions regulating the procedure of sale under the Partition Act. These are sections 6 and 7 of the Act. In section 6, it is provided that "every sale under section 2 shall be subject to reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may‑think fit and may be varied from time to time." It also allows any of the shareholders to bid at the sale on such terms as to non‑payment of deposit or as to setting off or accounting for the purchase‑money or any part thereof instead of paying the same as the Court may seem reasonable. Subsection (3) gives a pre‑emptive and preferential right to a shareholder where a bid given by him is equal to the bid given by a stranger. It is provided that the bidding in such case shall be deemed to be a bidding of the shareholder. 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."

11. This is common ground that there are no rules framed by the Lahore High Court. The procedure for sales is thus to be regulated by the procedure prescribed by the Code of Civil Procedure.

12. Learned counsel for the respondent urged that since all the procedure of Order XXI, regulating the sales in execution of money‑decree cannot be made applicable, all the relevant provisions of that order will apply to cases of sale under the Partition Act to the extent that they may be made applicable. In this connection, be referred to the provisions of rule 66 which deals with the proclamation of sale and which provides inter alia for the amount for the recovery of which a sale is ordered to be stated as fairly and accurately as possible in the proclamation. According to the learned counsel, this provision is not capable of being complied with in a sale under the Partition Act and on the principle enunciated by him, rule 66 will apply to the sale under that Act to the extent of other provisions only. On this analogy, he urged that clause (b) of sub‑rule (1) of rule 89 also will have to be excluded from consideration. In this connection, he referred to Chathurvedula Subbayya v. Simha Venkata Subba Reddi (A I R 1935 Mad. 1050) and Mahendra Chandra Das v. Parashmant Dasya and others (A I R 1938 Cal. 252). In the Madras case, the decree holder had accepted a mortgage from the judgment‑debtor in satisfaction of the amount due to him under the decree and for this reason a sum equal to five per cent. of the purchase money as required by clause (a) of sub-rule(1) of rule 89 was deposited. An objection which is similar in nature to the one raised in the present case, was taken by the auction‑purchaser in the case also that this was non‑compliance to the provision of rule 89. It was held that the decree holder can waive the payment of the amount in which case the judgment debtor would not pay anything in the Court in respect of the claim. The decree‑holder can, therefore, agree to receive a part of that which is coming to him is which case the judgment‑debtor has to deposit the balance amount. In the Calcutta case, it was held that the judgment‑debtor can deposit five per cent. only for paying to the auction‑purchaser in Court and get the sale set aside without depositing the decretal amount and contending that the decree is satisfied out of Court.

13. The analogy of rule 66 is clearly misconceived since the language of the rule contemplates that only those particulars are to be given in the proclamation of sale which are necessary to be given in a particular case from among the particulars specified in the rule. The two cases relied upon by the learned counsel are distinguishable. In these cases, instead of depositing the amount in Court, the payment had been made to the decree holder, as decided by the Court, to his satisfaction. It is not necessary to deal with the correctness of the principle laid down in these authorities because the principle of law as laid down by the Judicial Committee of the Privy Council is that when the adjustment is alleged to have taken place before the sale, the mere fact that it was applied to be recorded after the sale, does not make the adjustment invalid for the purpose of setting aside the sale. The ratio behind this is that if before the sale is effected, the adjustment has already been made and the decree stands satisfied, there remains nothing on the basis of which the property in dispute could be put to auction because the execution itself should be deemed to have come to an end by the satisfaction of the decree decided by the Court. It is, therefore, only a question whether in fact a decree was adjusted or not. This principle has been relied upon in Laid Raja Lal v. Bala Makhan Lal (A I R 1939 Lah. 326).

14. The learned counsel also relied upon a Division Bench case decided by the Sind Chief Court Dost Mahomed and others v. Mahomed Sharif and others (A I R 1933 Sind 40). But in that case the question of applicability of Order XXI, rule 89 was not directly involved. The sale was declared to be without jurisdiction on account of non‑compliance with section 6. The co‑owners were prepared to pay to the auction‑purchaser compensation to the extent of five per cent. of the value of the property which was finally held to be sufficient. While passing the order it was observed that Order XXI, rule 89 also recommends the deposit of this amount.

15. I agree with the interpretation of this rule in Gohur Ali Karikar and others v. Sm. Asia Khatun and others. I am of the view that bosh these conditions laid down in clauses (a) and (b) must be there in order to apply the provisions of Order XXI, rule 89, C. P. C.

16. The petitioner has a vested right in this case to the confirmation of the auction. This confirmation could be refused only if Order XXI, rule 89, had been applicable or a case had been made out under Order XXI, rule 90, C. P. C. Since the application under Order XXI, rule 90 is not in compliance with the provisions of that rule and Order XXI, rule 89 has been held to be inapplicable, the only course open to the learned trial Court was to confirm the auction.

17. I, therefore, allow this revision petition and set aside the order dated 18‑1‑1975. The result is that the application given under Order XXI, rule 89, stands dismissed. Since a difficult point of law is involved, there will be no order as to costs.

K. B. A. Petition accepted.