Mst. RUKHSANA and others vs MUHAMMAD ILYAS and others

' The relevant facts which gave rise to the present revision petition, in brief, are that Muhammad Ilyas etc. Respondents herein, . Instituted a suit against Mst. Rukhsana etc. The petitioners, for the partition and possession of a house situate in Gali Sard Khana, Jain Mandir, Gujranwala. They claimed themselves to be the co-sharers in the said house to the extent of 5/12 share. They admitted that the remaining 7/12 share belonged to the petitioneRs, On 25-9-1986 a preliminary decree was passed. The learned trial Court then appointed a local commissioner to suggest the mode of partition. The Local Commissioner in his report dated 13-6-1990 reported that the house in dispute was not divisible. He, however, assessed its market value as Rs,1,40,000. No objection was filed against the said report by any party. Consequently a Local Commissioner was appointed to put the house in question to auction and finally on 31-10-1990 the house was auctioned. It fetched a price of Rs, 1,13,000. The respondents filed an objection petition under Order XXI, Rule 90, C.P.C.

Against the auction proceedings on the ground that the proceedings were violative of Order XXI, rule 67, C.P.C. They further contended that the house had been sold at a price which was far less than its market value and that they had not been allowed to make a bid during the auction. They prayed for the reauction of the said house. The objection petition was resisted by the petitioners and the same was dismissed by the learned trial Court vide order dated 22-12-1990 solely on the ground that the respondents had failed to deposit 20% of the auction price under Order XXI, rule 90, C.P.C.. Feeling aggrieved the respondents went up in appeal. Their appeal was allowed vide order dated 17-2-1992, the order under appeal was set aside and the case was remanded to the learned trial Court with the direction to dispose of the objection petition afresh after framing necessary issues and affording the parties an opportunity to produce their respective evidence. Feeling dissatisfied the petitioners have come up in revision.

2. I have heard the parties' learned counsel and have also gone through the record.

3. Defending the order of the learned trial Court the learned counsel for the petitioners submitted that under proviso 2 of rule 90 of Order XXI, C.P.C. It was obligatory for the objection- petitioners/respondents herein, to deposit 20% of the auction money and as they had not deposited the said mount in Court, the learned trial Court was justified in dismissing the objection petition. Conversely, learned counsel for the respondents has defended the order of the learned lower appellate Court and has maintained that the objection petition could only be dismissed on account of the failure of the objection petitioner to deposit necessary amount if there had been an order of the Court for the deposit of such amount.

4. Rule 90 ibid reads as follows:-- "Application to set aside on ground of irregularity or fraud.---Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud: ' Provided further that no such appligation shall be entertained unless the applicant deposits such amount not exceeding twenty per cent. Of the sum realised at the sale, or furnishes such security, as the Court may direct."

5. It is evident from the above rule that an objection petition could only be entertained if, in compliance with the direction of the Court, the objection petitioner deposits an amount not exceeding 20% of the auction money. The rule contemplates a direction from the Court for the deposit of such amount prior to entertaining the objection petition. In the present case the learned trial Court had not issued any such direction to the respondents and therefore, their objection petition could not be dismissed on the ground that they had failed to deposit the requisite amount contemplated in proviso 2 of Rule 90 ibid. A similar question had arisen in M. Shafiquc Shah and another v. Mst. Irshad Begum and 8 others 1981 CLC 369 (Lahore) and Al Hamdi Begum v. National Bank of Pakistan etc. PLD 1976 Kar. 723 and it was held that it was obligatory for the executing Court to specify the amount of deposit required to be made by the objection petitioners in terms of the second proviso to Rule 90 and in the absence of any such direction in that behalf the Court could not justifiably reject the objection petition for non-deposit of the amount in question. The contention raised by the learned counsel for 'the petitioners, therefore, is devoid of force and does not have the support of law. Consequently the same is repelled.

6. In view of the above discussion the impugned order of the learned Additional District Judge does not suffer from any infirmity, jurisdictional or otherwise, and therefore; this revision petition has no merit and is dismissed with costs.