Sheikh AMEEN-UR-RASHEED vs Shaikh MAMON UR RASHEED O — 2023 YLR 2683 QUETTA-HIGH-COURT-BALOCHISTAN

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Sheikh AMEEN-UR-RASHEED VS Shaikh MAMON UR RASHEED O. XXI. Rr. 54(2), 66, 85, 86 & 92---Suit for declaration and possession through partition decree---Execution petition---Auction proceedings---Sale by public auction---Procedure, non-observance of---Plaintiffs and the defendant (possessor) were declared co-sharer/co-owners of the ancestral property (suit-house) by the Trail Court; and the defendant(judgment-debtor/ possessor) was directed to either buy the shares of plaintiffs or let them sell the house---Executing Court, however, auctioned suit-house to the highest bidder whereas the judgment-debtor/ possessor had showed his willingness to purchase suit-house by way of filing objections---Executing Court over-ruled said objections, against which order the judgment-debtor/possessor filed revision but the order was maintained---Contention of the petitioner (judgment-debtor/possessor) was that auction proceedings were carried out against the provisions of law, inter alia, without giving notice and hearing him (and even other co-sharers/decree-holders), the suit-property had been auctioned---Validity---It was the mandate of R. 66(2) of Order XXI of the Civil Procedure Code, ('C.P.C., 1908') that a proclamation of sale was to be drawn up by the Executing Court itself after prior notice to the decree-holder and the judgment-debtor---Sale by public auction without issuing notice to decree-holder and judgment-debtor would vitiate the proceedings---Said Rule also mandated that where situation to sell the property through auction had arisen, the Court as a rule must ask the parties to state the estimated price of the property, which in their opinion was likely to be fetched---Fixing reserve price in the proclamation was also mandatory, in absence whereof auction was illegal---In the present case, the proclamation was also not affixed on the Court Notice Board, which adversely affected the transparency of the auction proceedings---Impugned order passed by the executing Court was silent with regard to deposit of the balance amount of 75% by the auction purchaser within 15 days of the auction as mandated under R. 85 of O. XXI of the C.P.C, 1908---Rejoinder to objection filed by the respondent (auction-purchaser) and an application for depositing of the balance amount revealed that he had not deposited the balance within 15 days, while auction had taken place almost a month ago---Payment of the balance amount within 15 days of sale, was mandatory and upon non-compliance with said provisions there was no sale at all---Executing Court neither accepted the bid of the respondent (auction-purchaser) nor confirmed the sale as provided under R. 92 of O. XXI of C.P.C, 1908, thus it could not be said a vested right occurred in favour of the auction purchaser---In light of said illegalities coupled with non-deposit of balance sale amount of 75% by the respondent (auction purchaser) within stipulated time of the sale/auction, absence of confirmation of the sale in the impugned orders had rendered the auction proceedings in deviation of the mandatory provision of O. XXI, Rr. 54(2), 66, 85, 86 & 92, C.P.C.---High Court set-aside the impugned judgments and orders passed by both the Courts below and allowed the objection filed by the petitioner (judgment-debtor/ possessor), subject to full deposit auction/ sale money and deposit of sum equal to 5% of the purchase money---High Court directed that offer observing all other formalities the house-in-question shall be transferred in favour of the petitioner---Constitutional petition was allowed, in circumstances.

Sheikh AMEEN-UR-RASHEED vs Shaikh MAMON UR RASHEED O — 2023 YLR 2683 QUETTA-HIGH-COURT-BALOCHISTAN

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