IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.5 of 2010

_____________________________________________________________________ Date Order with signature of Judges

_____________________________________________________________________

DISPOSED OF CASE:

For hearing of CMA No.1829/2016 (U/S.151 CPC).

PRESENT:

MR. JUSTICE AQEEL AHMED ABBASI

JUSTICE MRS.KAUSAR SULTAN HUSSAIN

Dated; 2^nd November 2022

Mr. Shahzad Mehmood, Advocate for Appellant.

Respondent No.1(c) Mst. Imtiaz Bibi present in person.

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O R D E R

Through this order, we will dispose of the listed application [CMA No.1829/2016] filed by the respondent No.1(c) under section 151 CPC seeking the following relief: -

1. Direct the property bearing No.141, measuring 2000 sq.yds. Khayaban-e-Hafiz, Phase-VI, D.H.A., Karachi may be reversed to its earlier position.

2. Direct the Nazir of this Hon’ble Court to take in his custody the property and the allied document bearing No.111-M/2 measuring 300 sq.yds. Khalid Bin Waleed Road, PECHS, Karachi.

3. Any other order/s as may deems fit and property.

2. It is pertinent to observe that instant application has been filed in HCA No.5/2010 (alongwith other connected HCA Nos.6, 7 & 8 of 2010), which was finally disposed of vide a detailed combined order dated 22.02.2012 passed by a Divisional Bench of this Court. The aforesaid High Court Appeal Nos.5 & 6 of 2010 were filed against common order dated 23.10.2009 passed in Execution Nos.12 & 13 of 2009, whereby, the Executing Court, while accepting bid of the highest bidder Agha Zara Khan in the sum of Rs.51,500,000/- directed the deposit of balance sale price with the Nazir within twenty (20) days, was impugned, whereas, in High Court Appeal Nos.7 & 8 of 2010 a common order passed in both the stated execution applications on 10.12.2009, whereby, the Executing Court by consent of the parties directed the appellant Bushra Saeed to procure the bid amount of Rs.60.5000 Million within twenty (20) days, failing which, the bid already accepted vide order dated 23.10.2009 in HCA Nos.5 & 6 of 2010 would stand confirmed, was challenged. The learned Divisional Bench of this Court after having examined in detail the judgment and decree passed in the suit, as well as the orders passed in the execution proceedings, was pleased to finally decide the aforesaid appeals in the following terms: -

“We have heard the learned counsel for the respective parties and perused the record as well as decree/agreement subject matter of dispute. The clauses which are heavily relied upon by Mr. Shafi Siddiqui to contend that the DHA property could not be sold for an amount less than Rs.80 Million are reproduced herein below for the sake of convenience:

“Article 2. Payment to be made to SMR and SQ.

2.1. That in consideration for the above Mrs. Qureshi will after the sale of any of the Subject Properties pay:

(a) within 6 months from the execution of this Agreement a sum of Rupees Sixty Million (Rs, 60,000,000/- to SQ through a Pay Order which pay order shall be deposited with the Nazir of this Honourable Court who will release the same to SQ on proper identification being provided to the Nazir of this Honourable Court by SQ.

(b) within a period of 6 months from the execution of this Agreement a sum of Rs. Five Million (Rs. 5,000,000) to SMR through a Pay Order which pay order shall be deposited with the Nazir of this Honourable Court who will release the same to SQ on proper identification being provided to the Nazir of this Honourable Court by SMR.

2. 2.

(a) Notwithstanding anything contained in clause 2.1. above if Mrs. Qureshi fails to sell the Subject Properties and as a consequence of her failure to sell the Subject Properties fails to pay the amounts as mentioned in clause 2.1 to SQ and SMR within the time limit specified, then Mrs. Qureshi will within a period of 7 days provide at her sole and absolute discretion to SQ in writing three separate valuations from Real Estate Agents indicating the market value of the DHA Property and the average price thereof shall thereafter be considered to be the minimum price of the DHA Property.

(b) That Mrs. Qureshi and SQ agree that each of them shall thereafter have the right to find a buyer for the DHA Property at an amount not less then the minimum price of the DHA Property as determined in sub-clause (a) of clause 2.2 of this Agreement.”

Perusal of Article 2.1 along with clauses (a) and (b) of the Agreement reflects that the appellant was to sell the properties subject matter of the agreement as detailed in the earlier part of the order and was to pay a sum of Rs.60.000 Million to the predecessor-in-interest of respondent No.1 and Rs.5.000 Million to the respondent No.2, whereas under clause 2.2(a)&(b) on failure of the appellant to sell the said properties and to pay the amount as stipulated in clauses (a) and (b) of Article 2.1 the appellant had to convey to the predecessor-in-interest of respondent No.1 in writing three separate valuations from the Estate Agents indicating market value of the DHA property, the average price whereof would be considered minimum price of the DHA property and, thereafter, both the appellant and respondent No.1 were to find a buyer for the DHA property for an amount not less than the average price, there is no denial that both the parties had made several attempts to procure an offer for the sale of DHA property and after filing the execution application as is evident from the order dated 23.10.2009 impugned in the first two appeals, thrice the DHA property was advertised and the maximum price which they could achieve was Rs.51,500,000/-. There is nothing on record to show that the appellant made any attempt to place on record the average price of the DHA property nor had pleaded such fact before the executing Court and on the contrary counsel for the appellant had agreed to the confirmation of sale in favour of the highest bidder in the sum of Rs.51,500,000/- in case the appellant fails to bring any offer of Rs.60.500 Million, therefore, to say that the property could not have been sold for an amount not less than Rs.80 Million at this juncture cannot be accepted. In our opinion the average price means the price which the property can realistically fetch in the open market and not an offer on which no buyer is ready to buy it out. Even otherwise the right, if any, to resist the sale for an amount not less than Rs.80 Million was waived by the appellant when she consented before the executing Court on 10.12.2009 for confirmation of sale in favour of the highest bidder. We would further like to observe that though under Article 2 of the agreement the appellant in unequivocal terms in consideration of the concession granted by the respondents No.1 and 2, by withdrawing their claim on both the properties subject matter of these appeals, had agreed to pay a sum of Rs.60 Million to the predecessor-in-interest of the respondent No.1 and Rs.50 Million to respondent No.2, however, perhaps at that time the appellant might have envisaged that the value of the property would be much higher and the remainder would go to her as can be construed from clause 2.2 but due to the recession is real estate market the property could not fetched the price as envisaged at that time and it is not the appellant who could not get over and above from the sale of DHA property but the respondents also by seeking disposal of the execution application had given up their right of full recovery and instead of claiming Rs.65 Million from the appellant from the sale of the properties given up their claim for Rs.13.5 Million by agreeing to the disposal of the execution and accepting the bid of Rs.51.5 Million. It is further important to observe that Mr. Shafi Siddiqui has further failed to satisfy us regarding maintainability of the later two appeals against a consent order. The contention is, therefore, rejected.

As to the plea that the executing Court had no power to grant time of twenty-days for payment of balance sale price as Order XXI Rule 85 CPC prescribed the period of fifteen-days for payment of balance sale price. Suffice it to observe that it was a sale through private negotiation and in cases where the sale is conducted through private negotiation the provisions of Order XXI Rule 85 CPC cannot be made strictly applicable, as was held by a Division Bench of this Court in the case of Iqbal Ahmed vs. Industrial Development Bank of Pakistan (1989 CLC 1365).

In view of what has been discussed above, we do not see any reason to interfere with the orders of the executing Court, therefore, dismiss these appeals.”

3. After dismissal of the aforesaid appeals in the above terms the applicant Mst.Imtiaz Bibi moved an application seeking review of the aforesaid order, which was also dismissed vide order dated 19.11.2012 in the following terms:

“Since the judgment dated 22.02.2012 was passed with full application of mind and after scrutiny of record i.e. order dated 23.10.2009, which is available in Execution Application No.12/2009, whereas Execution Application No.13/2009 reflects “same order” whereby bid of Agha Zarar Khan was accepted in the sum of Rs.51,500,000/- reflects that the counsel of applicant’s predecessor-in-interest Mr. Ilyas Khan Tanoli was present and pleaded for accepting bid of Agha Zarar Khan for Rs.51,500,000/-, whereafter by consent both the execution applications were disposed of on 10.12.2009 through above reproduced order.

In the circumstances, neither any newly discover fact, error or mistake has been brought to our notice, therefore, no case for review is made out. Consequently, review application is dismissed.”

4. Thereafter, the applicant/respondent No.1(c) has filed listed application under section 151 CPC in a disposed of matter with the prayer for issuance of directions to the effect that property No.141 measuring 2000 sq.yds. Khayaban-e-Hafiz, Phase-VI, D.H.A., Karachi, may be reversed to its earlier position, whereas, further prayer has been made for issuance of directions to the Nazir of this Court to take in his custody the property bearing No.111-M/2, measuring 300 sq.yds. Khalid Bin Waleed Road, PECHS, Karachi alongwith its allied documents.

5. The respondent No.1(c) appearing in person while confronted to assist this Court, as to how the listed application under Section 151 CPC is maintainable in a finally disposed of High Court Appeal and also dismissal of the review application filed by the applicant/respondent No.1(c) in the aforesaid terms, whereas, the relief being sought through instant listed application otherwise appears to be beyond the scope of instant High Court Appeal, the respondent No.1(c) could not submit any reasonable explanation, however, has referred to the order passed on 03.07.2013 by the Hon’ble Supreme Court of Pakistan in Civil Petition No.114 of 2013, whereby, the order passed by the learned Divisional Bench of this Court on 19.11.2012 on the review application filed by the respondent No.1(c) was assailed, and according to respondent No.1(c), the order passed in the aforesaid High Court Appeal was set aside, however, despite of aforesaid order, property No.141, measuring 2000 sq.yds. Khayaban-e-Hafiz, Phase-VI, D.H.A., Karachi was sold out and no report in respect of such property has been submitted before this Court. It has been submitted by the respondent No.1(c) that she, being the widow of deceased Saeeduddin Qureshi, and also her daughter namely have not been given their due shares in the properties left behind by the deceased, whereas, the appellant intends to usurp the property No.111-M/2, measuring 300 sq.yds. Khalid Bin Waleed Road, PECHS, Karachi.

6. Conversely, the learned counsel for the appellant has vehemently opposed the above submission of the respondent No.1(c) and also raised objection with regard to maintainability of instant application, which according to learned counsel, is totally misconceived and also beyond the scope of the proceedings in High Court Appeal No.5/2010, which was filed against order passed in execution proceedings, whereas, the High Court Appeal has been finally decided through a detailed order passed by the learned Divisional Bench of this Court on 22.02.2012, which has attained finality, as no appeal was filed by the respondent No.1(c) against the aforesaid order. However, the respondent No.1(c), instead of filing appeal, filed review application, which was also dismissed by the Divisional Bench of this Court vide detailed order dated 19.11.2012. It has been further contended by the learned counsel for the appellant that reference to the order passed by the Hon’ble Supreme Court in Civil Petition No.114/2013 is misconceived and beyond the scope of the listed application, as according to learned counsel, such review was filed on a limited issue, whereas, the issues agitated through listed application relating to subject properties were not part of such issue, which have attained finality, therefore, cannot be re-agitated at this stage through listed application in a disposed of appeal. According to learned counsel for the appellant, the respondent No.1(c) and her daughter, namely, Ishna Saeed, have already taken their share out of sale proceeds in respect of properties left behind by deceased, namely, Saeeduddin Qureshi, which fact is duly verified as per Nazir’s reports attached in the instant High Court Appeal, without raising any objection. However, through listed application, the respondent No.1(c) with malafide intention and in order to extract more money beyond her entitlement has attempted to create confusion and raise frivolous grounds to render the judgment and decree and all the orders passed in High Court Appeal(s) as well as by the Hon’ble Supreme Court in these long drive litigation as redundant. Learned counsel for the appellant has referred to judgment and decree passed in the suit as well as orders passed by the Divisional Bench of this Court in the High Court Appeals and the orders passed by the Hon’ble Supreme Court of Pakistan, including various reports of the Nazir in Execution No.13/2009, including report dated 30.05.2019, which according to learned counsel, clearly reflects that the respondent No.1(c) and her daughter have already received their respective shares out of sale proceeds of the properties sold out through auction. It has been prayed that instant application being totally false and frivolous may be dismissed with heavy costs.

7. Heard the learned counsel for the appellant and respondent No.1(c) appearing in person, and also perused the record and various orders passed including the order passed in the instant High Court Appeal, with their assistance, which prima facie shows that listed application, besides being beyond the scope of instant High Court Appeal, which was finally disposed of vide detailed order dated 22.02.2012, whereafter, the review application filed by respondent No.1(c) was also dismissed vide order dated 19.11.2012. The order passed on review was assailed by filing C.P.No.114/2013 before the Hon’ble Supreme Court of Pakistan, however, it was disposed off in the following terms:-

“2. HCA No.231 of 2013 had been filed by the respondent Mrs.Bushra Saeed and was disposed of finally by means of order dated 11.11.2011 as not pressed. The learned bench of the Sindh High Court appears to have proceeded on the erroneous premise that the property situated on Khalid Bin Waleed Road was not to be sold in any event whether or not the proceeds of sale of the DHA property were sufficient to meet the decretal debt. This premise is erroneous in view of the clear observation made in the order dated 04.08.2009 reproduced above.

3. In view of the foregoing discussion, the impugned order is set-aside and it is clarified that even the property situated on Khalid Bin Waleed Road, if necessary, may be sold to satisfy the decretal debt. On this, learned counsel for the respondent Mrs. Bushra Saeed, stated that the distribution of the proceeds of sale is also an issue. We are, however, not required to comment on this. The said respondent may, if so advised, approach the executing Court.”

Perusal of above order passed by the Hon’ble Supreme Court reflects that finally concluded issues relating to settlement between the parties as per decision in HCA No.231/2013 regarding distribution of respective shares amongst the legal heirs of Late Saeeduddin Qureshi, including the applicant Mst. Imtiaz Bibi (Widow) and Ishna Saeed (daughter) out of sale proceeds of the properties left behind by deceased, which also included the properties as mentioned in the listed application has been finally concluded, however, with a clarification regarding sale of above property, in case the proceeds of sale of DHA property are not sufficient to meet the decretal debt. The respondent No.1(c) inspite of above orders passed in the HCA No.231/2013 and the order of Hon’ble Supreme Court dated 03.07.2013 as referred to hereinabove attempted to re-agitate the same issues and also disputes the distributions of sale proceeds of sale by the Executing Court, however, without challenging any order of the Executing Court to this effect, whereas, the Nazir’s reports furnished from time to time in Execution No.13 of 2009, according to which the respondent No.1(c) and her daughter Ishna Saeed have already received their due share from the Nazir without raising any objection in this regard, have also not been disputed or challenged either before the Executing Court or before this Court through listed application.

8. In view of the above facts and circumstances of instant case, we do not find any merits in the listed application, which is totally misconceived and based on frivolous grounds, therefore, the same is accordingly dismissed.

J U D G E

*Nadeem/Farhan/PS*