Order Sheet

 

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

 

Constitutional Petition No. D – 859 of 2011

 

 

Date

                    Order with signature of Judge

 

 

     Present :

Mr. Justice Irfan Saadat Khan

     Mr. Justice Nadeem Akhtar

 

 

For Katcha Peshi :

 

Mr. Ghulam Mujtaba Phull advocate for the petitioners.

Mr. Muhammad Hanif Kashmiri advocate for respondents 1 and 2.

 

Date of hearing  : 08.05.2014.

 

-----------------------------------

 

O R D E R

 

NADEEM AKHTAR, J. – Through this Constitutional Petition, the petitioners have impugned the order passed by the learned Vth Additional District Judge, Karachi East, on 30.09.2010 in Civil Revision No.37/2007 filed by respondents 1 and 2, whereby the order passed on 22.05.2006 by the IVth Senior Civil Judge, Karachi East, in the respondent No.1’s Execution Application No.04/1997 setting aside the sale of an immovable property, was set aside.

 

2.         The relevant facts of the case are that respondent No.1 filed Suit No.294/1990 before this Court for recovery of Rs.150,000.00 with interest thereon against the petitioners and one M. Kamal Yousuf, who was the real son of petitioner No.1 and real brother of petitioner No.2. The Suit was decreed ex-parte on 30.08.1995. Respondent No.1 filed an execution application for execution of the said decree, which was transferred to the District Court due to the change in the pecuniary jurisdiction. The said application was registered as Execution Application No.04/1997, and was allowed with an order of attachment of Shop No.5, situated on Plot No.15-A, Block-6, PECHS, Shahra-e-Faisal, Karachi, belonging to the petitioners / judgment debtors. After fulfillment of all the legal requirements and formalities, including issuance of sale proclamation, the said shop was put to public auction in the premises of the Court. One Asif Afzal, who offered the highest bid of Rs.1,100,000.00, was declared as the successful bidder. He deposited the said amount as per the terms and conditions of the auction sale, whereafter the sale certificate was issued in his favour by the Executing Court. Upon deposit of the said amount and issuance of the sale certificate, respondent No.1 / decree holder was allowed by the Executing Court to withdraw the said amount.

 

3.         After completion of the sale in all respects and issuance of the sale certificate by the Court, the petitioners / judgment debtors filed an application before the Executing Court under Order XXI Rules 89, 90 and 91 CPC read with Section 12(2) CPC, praying that the sale be set aside and the execution application be dismissed. Vide order passed on 22.05.2006, the said application was allowed ex-parte by the Executing Court and the sale was set aside. Being aggrieved with the said ex-parte order of the Executing Court, respondent No.1 and the auction purchaser Asif Afzal filed Civil Revision No.37/2007, which has been allowed through the impugned order.

 

4.         The main ground on which the ex-parte order of the Executing Court has been set aside by the learned Revisional Court is that the application filed by the petitioners / judgment debtors before the Executing Court was not maintainable in law, as they had failed to fulfill the mandatory requirements of Rules 89 and 90 of Order XXI CPC. The said provisions of Order XXI CPC have been reproduced and discussed in depth in the impugned order. It has been observed in the impugned order that under Rule 89 ibid, where an 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 for payment to the purchaser a sum equal to 5% of the purchase-money. It has also been observed in the impugned order that under Rule 90 ibid, where an immovable property has been sold in execution of a decree, any person 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 such application shall be entertained unless the applicant deposits such amount not exceeding 20% of the sum realized at the sale or furnishes such security as the Court may direct. It was held by the learned Revisional Court that the application filed by the petitioners / judgment debtors was not maintainable as they did not deposit the 5% amount of the purchase-money under Rule 89 ibid, nor did they deposit 20% of the sum realized at the sale as required under Rule 90 ibid ; and, by entertaining and allowing their application, the Executing Court committed a grave error in law.

 

5.         On our query, learned counsel for the petitioners conceded that the aforesaid mandatory requirements were not fulfilled by the petitioners. The object of requiring a person, who intends to have the sale of an immovable property in execution of a decree set aside, to deposit the amount in terms of Rules 89 and 90 ibid is to ensure that such person having title or interest in the property is serious in setting aside the sale, and also to safeguard the interest of the auction purchaser. In the present case, after payment of the full purchase-money and issuance of the sale certificate in pursuance thereof, the auction purchaser had acquired valuable vested and proprietary rights, title and interests in the shop, which could not be taken away in the manner in which the Executing Court did. We are of the firm view that, before even issuing notice of the application filed by the petitioners, the Executing Court was duty-bound to ensure that the petitioners had complied with the mandatory requirements of Rules 89 and 90 ibid. In our opinion, the findings of the learned Revisional Court in this context are in accordance with law, and the same do not call for any interference by us.

 

6.         Before parting with this petition, we would like to observe that the petitioners have not impleaded in this petition the original defendant / judgment debtor No.3 M. Kamal Yousuf as well as the auction purchaser Asif Afzal, who was applicant No.2 in Civil Revision No.37/2007 out of which this petition has arisen. It is well-settled that parties cannot be added or deleted at the appellate stage without the leave of the Court. The petition is not maintainable on this ground also.

 

            Foregoing are the reasons of the short order announced by us on 08.05.2014, whereby this petition was dismissed with no order as to costs.

 

 

 

 

 

 

___________________

J U D G E

 

 

 

 

 

 

___________________    

J U D G E