RASHAD EHSAN and others vs BASHIR AHMAD and anothers

1. ' NASIM HASAN SHAH, J.--The appellants are the legal heirs of one Mimi Ehsan Elahi against whom the Central Exchange Bank Ltd. Had obtained two money decrees on 12-12-1957. After obtaining the decrees, the Central Exchange Bank had commenced execution proceedings against Mian Ehsan Elahi in the Court of Civil Judge, Lahore, and attached the judgment-debtor's half share in two properties bearing Khasra 'Nos. 1143 and 1169. The judgment-debtor had filed objections to the attachment.

2. ' In the meanwhile, on 12-11-1962, the Central Exchange Bank Ltd., went into liquidation; therefore, the execution proceedings instituted by it were transferred under section 62 of the Banking Companies Ordinance, 1962, to the Lahore seat of the West Pakistan High Court and in due course notices were published for the auction of the judgment-debtor's share in the aforesaid Khasra numbers.

3. ' The notices, referred to above, were published in the Na wa-iWaqt of the 14th July, 1964, for the auction which was to be held on 18-7-1964. In the auction held, in pursuance thereof, the judgment-debtor's share in Khasra No,1143 was sold for Rs,18,000 whilst his share in the other khasra No, was sold for Rs,25,000. The successful auction-purchaser in both the cases was Bashir Ahmad (who is the first respondent in both these appeals) and in accordance with the terms of the auctions he paid 25% of the sale price immediately. The above-mentioned sales were confirmed by the High Court in his favour on 26-10-1964.

4. ' However, the balance of the sale price was not paid even within fifteen days of the confirmation of the auction.

5. ' Be that as it may nothing was done by the judgment-debtor for a long time. However, objections to the sale were filed sometimes in 1966 under Order XXI, Rule 90, C.P.C. But these were rejected as timebarred on 16-10-1967.

6. ' The judgment-debtor died on 18-6-1968 and his heirs filed objections under Order XXI, Rule 85 of the Civil Procedure Code for setting side the sales in favour of the first respondent on the short ground that the sales had become null and void in view of the first respondent's failure to comply with the mandatory provisions of Order XXI, Rule 85 of the Civil Procedure Code. These applications were contested by the first respondent but they were allowed by Muhammad Akram,' J. On 18-11- 1974. Therefore, the first respondent challenged the orders of Muhamamd Akram, J. In Letters Patent Appeals which came up for hearing before a Division Bench of the Lahore High Court which allowed the same by its judgment dated 2-10-1978. Hence these appeals by leave of this Court.

7. ' The contention of the appellants before the Division Bench was that non-compliance "with the provision of Order XXI, Rule 85 renders the sale a nullity and on that count plea of limitation or of waiver or res judicata cannot be availed of" and that this plea was accepted as correct by the learned Single Judge (M. Akram, J.). The learned Judges, who allowed the appeals against the order cf I. Akram, J. , accepted this submission observing in paragraph 10 of their judgment that they entirely agreed with the finding of M. Akram, J. "for it is based on a review of the case-law on the subject". But the learned Judges went on to say: "We, however, think proper to examine at some length a matter which has not been even noted in the judgment under appeal. It is whether in this matter the act of the Court itself has not substantially prejudiced the appellant and the decision under appeal has not the effect of altogether ignoring the applicability of the maxim "Actus Curiae Neminem Gravabit" (An act of the Court shall prejudice no man)."

8. ' Then after an elaborate examination of the case-law, the learned Judges took the view that the non-compliance of the provisions of Order XXI, Rule 85 by the first respondent had been due to the failure of the Court to specify in its auction notices the period within which the balance of the sale price had to be paid; therefore, on the principle that an ,act of the Court should not prejudice any one, they allowed the first respondent's appeals.

9. ' Learned counsel, in support of these appeals, has submitted that the failure of the first respondent to comply with the mandatory provisions of Order XXI, Rule 85 was not due to any act or default on the part of the Court; therefore, the learned Judges had erred in holding that the maxim "Actus Curiae Neminem Gravabit" was attracted to the facts of the case. Secondly, according to the learned counsel, this maxim was not applicable to the provisions of Order XXI, Rule 85 of the Civil Procedure Code and that the view taken by the learned Judges was contrary to the settled law.

10. ' Ch. Khalil-ur-Rehman has been heard in reply.

11. ' In my opinion, the view taken by the learned Judges of the Division Bench is not only tenable but a fair and equitable disposal of the matter.

12. ' The submission that the principle "Actus Curiae Neminem Gravabit" (an act of the Court shall prejudice no man)" has been found applicable while dealing with the cases falling under Order XXI, Rule 85 of the Civil Procedure Code by Courts in the Sub-Continent since decades (see for instance Bijoy Singh v. Raja Kirtyanand Singh (AIR 1932 Pat. 342) and Mst. Gomti v. Lachman Das Champa Ram (AIR 1934 All. 817) and Ambati Raghawalu v. Mova Venkamma and others (AIR 1962 Andhre Pardesh 334). Even Courts. In Pakistan have found that the mandatory provisions of the Code if not complied with on account of something done by the Court, would not prejudice a party which has been acting pursuant to the orders of the Court; see Ch. Abdur Rashid and others v. The New Bank of India Ltd. (PLD 1959 Lah. 224) and Painda Khan v . Tiw tna and another (PLD 1962 Lah. 92).

13. ' In our opinion, this maxim was rightly applied in the facts and circumstances of this case. It will be recalled that the notice of c sale appeared in the daily Nawa-i-Waqt on 14-7-1964 for the auction to be held on 18-7-1964. The notice was in the following terms:- {{URDU TEXT}} ' The sale'of the share of the judgment-debtor took place on 18-7-1964. The case was put up for confirmation of the auction price before the learned Judge of the High Court and the auction price was confirmed by him (Muhammad Akram, J.) on 26-10-1964. The file of., the proceedings, including the order of confirmation passed by the learned Judge of the High Court, was thereafter sent to the Collector. Which was received by him on 8-12-1964 and the balance of the sale price deposited on the very next day i.e, on 9-12-1964.

14. ' It is true that even after the confirmation of the sale, the balance was not deposited within 15 days thereof but the fact that it was deposited on the very next day of the receipt of the file in the Collector's office shows that the respondent was waiting for its receipt and the balance price could not be deposited before the file was actually received. Needless to say that all deposits have to be made after the preparation of the challan and the relevant challan could not obviously be prepared by the Collector until the file was received by him from the High Court.

15. ' I, therefore, agree with the view of the Division Bench that the notice issued by the Collector and published in the newspaper which explicitly mentioned that the balance of the price shall be payable on confirmation of the sale had contributed to the delay. This public notice was undoubtedly in violation of the provisions of Order XXI, Rule 85 of the Civil Procedure Code. But the error was committed by the officer authorised to conduct the sale and to penalize the auction-purchaser for complying with the directions, even though erroneous, of the functionary conducting the sale is neither fair nor equitable. Accordingly the maxim "Actus Curiae Neminem Gravabit" comes into play, with a view to obviate hardships and which may otherwise be the result of the errors of the Court itself. Thus, where a non-compliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in confirmity with the law, the party complying therewith is not to be penalized. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars, the party acting in accordance with such directions is not held to be blameworthy.

16. ' The litigation in these cases started sometime in 1957; 31 years have elapsed since the Courts were approached in these matters. To re-open the matter again after 31 years seems to be putting premium on technicalities. The law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one.

17. ' I would dismiss these appeals, leaving the parties to bear their own costs.