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Suit No.1078 of 1978, decided on 23rd April, 1987.
‑‑‑Procedural provision‑‑Construction‑‑Liberal construction to be placed by Court with the object to foster the cause of justice rather than to defeat the same‑‑Court, however, while placing liberal construction on a procedural provision would not take away the vested right of a third person.
‑‑‑O.XXI, R, 89(1)‑‑Ingredients to be proved for pressing into service provision of O . XXI , R .89(1) , C . P. C . enumerated‑‑Partition decree whether covered by O.XXI, R.89(1), C.P.C. Sub‑rule (1) of Rule 89 of 0 . XXI, C . P. C . can be pressed into service by a person if he proves the following ingredients:
(a) The immovable property has been sold in execution of a decree;
(2) He either owns such property or holds an interest therein by virtue of title acquired before such sale;
(3) He compliance for setting aside on his depositing in Court:
(a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and
(b) for payment to the decree‑holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder.
Though in the above sub‑rule (1) of rule 89 of O.XXI, C.P.C., the words used are "where immovable property has been sold in execution of a decree", and the words "a money decree" have not been employed therein and, therefore, if the above words are read in isolation from the other portion of the said sub‑rule, it can be urged that a partition decree is also covered by the said provision. But if the sub‑rule is read as a whole, it becomes evident that a partition decree does not fit in, in the above sub‑rule for more than one reason. Firstly, in a partition decree all the parties having interest in the property to be partitioned, are in fact decree‑holders to the extent of their respective share. It is a decree akin to a decree for accounts in which all the parties are plaintiffs anti defendants. Secondly, apart from the fact there is no decretal amount, the sale proceeds of the property involved is to be distributed among the co‑sharers and, therefore, none can be said to be the judgment- debtor. Thirdly, in case of tie between two co‑sharers, as to the right to claim the property under above Rule 83 to the exclusion of other, there seems to be no provision in the above rule to resolve the above dispute. Similarly, there is no provision in the said rule to cater for a case in which some of the co‑sharers may oppose application under the above rule filed by some of the co‑sharers in which co‑sharers having 50% share have opposed the aforesaid application of their remaining co‑sharers having 50% share.
The view found favour, in the case of Muhammad Din v. Ilahi Noor and 4 others P L D 1975 Lah. 1393 is more in consonance with the provision.
However, the Court may adopt any procedural provision or procedure with the consent of all the parties concerned so long it does not violate any provision of law and does not affect the rights of any third person if the dictates of justice so demand.
Muhammad Din v. Ilahi Noor and 4 others P L D 1975 Lah. 1393 approved.
Ram Prasad v. Ram Charan Singh and others A I R 1916 Cal. 64; Pandurang Laxman Uphade v. Govind Dada Uphade A I R 1916 Bom. 57; Nirode Nath Bannerjee and another v. Amullya Dhone Bannerjee and another A I R 1923 Cal. 582; Kalyanee Debi v. Hari Mohan Ghose A I R 1929 Cal. 574; Official Assignee Bombay v. Jehangir Sorabji Dalal A I R (30) 1943 Bom. 336; Sita Ram Bishambar Dass v. Jogindar Kumar and others A I R 1963 Pun. 531 (V 50 C 149); Mst. Alhamdi Begum v. National Bank of Pakistan P L D 1976 Kar. 723 and Abdul Rahman v. Matiyar Rahman I L R Cal. 425; Muhammad Din v. Illahi Noor and 4 others P L D 1975 Lah. 1393 and Fatima‑ul‑Hasna and others v. Baldeo Sahai and others AIR 1926 All. 204 ref.
Fazle Ghani Khan and Hussain Adil Khatri for Plaintiffs.
Noorullah A. Mangi and Shaikh Hamid Hassan for Respondents.
Date of hearing ; 13 April, 1987;
‑‑The following question has been referred to this Bench by a learned Single Judge of this Court:
"Whether the provisions of Order XXI, Rule 89, C.P.C. should be universally applied to all auction sales without distinction and irrespective of the fact whether the sales are in pursuance of money decree or other decrees and whether auction sales held in Partition Suits or Administration suits etc. are beyond the scope of rule 89 of Order XXI, as held by Aftab Hussain, J."
2. The facts giving rise to the above reference are that plaintiff being one of the legal heirs of deceased Moosa son of Ibrahim, hereinafter referred to as the deceased, filed a suit for administration against his four brothers, mother and four sisters in respect of the estate left behind by the deceased which included immovable and movable properties. During the pendency the widow of the deceased expired. By a judgment dated 21‑2‑1984 the suit was disposed of and in so far as the prayer in the suit for partition of the immovable property was concerned, the Nazir was directed to inspect the property to find out if the property was capable of being partitioned amongst the respective parties. The Nazir submitted his report on 8‑8‑1984 alongwith the report dated 30‑4‑1984 of M/s. Shahid Associates, Licensed Architect and Licensed Engineer, in respect of the property, situated at the site Syed Ali Lane, Sarafa Bazar, bearing No. P.2/28/ 11‑H(G‑1), Napier Quarters, Karachi, hereinafter referred to as the property, which was to the effect that the property could not be partitioned. Upon receipt of the above report a learned Single Judge by his order dated 31‑1‑1985 ordered that since the property was incapable of partition, there was no alternate but to order auction of the property and thereafter distribution of the sale proceeds to the legal heirs according to the above judgment. All the parties were permitted to take part in the auction of the property. In pursuance of the above order the Nazir held the auction on 25‑3‑1986. The highest bid for a sum of Rs.14,25,000, was given by Muhammad Saleem and Jan Muhammad, hereinafter referred to as the auction purchasers, who are represented by Mr. Noorullah A. Manji Advocate. The auction‑purchasers deposited Rs.3,56,250 on the day of the auction and the balance on 7‑4‑1986 as per terms of the auction. The Nazir made a reference to a learned Single Judge for confirming the sale. It appears that five of the defendants, two sons and three daughters of the deceased, hereinafter referred to as the applicants represented by Mr. Fazle Ghani Khan Advocate, filed an application on 1‑4‑1986 under Order XXI, Rule 89, C.P.C., hereinafter referred to as the provision, alongwith section 151, C.P.C., praying therein, that they be allowed to deposit 5% of the sale price of Rs.14,25,000 and the auction in favour of the auction‑purchasers be cancelled. It was also prayed that the said applicants may also be given vacant possession of the property on payment of the share of the auction price to the plaintiff and other defendants. From the record, it seems that the applicants had deposited Rs.7,12,500 through two Pay Orders on 23‑4‑1986 with the Nazir of this Court. However, it is not clear from the record as to when they had deposited the 5% of the aforesaid sale price though in the referring order it has been stated that the applicants had deposited the above 5%. The above application was opposed by the auction‑purchasers as well as by the remaining three sons and one daughter, hereinafter referred to as the remaining legal heirs, who are represented by Mr. Hussain Adil Khatri, Advocate.
3. In support of the above reference Mr. Fazle Ghani Khan, learned counsel for the applicants has vehemently urged that the view found favour with the learned Single Judge in the case of Muhammad Din v. Ilahi Noor and 4 others reported in P L D 1975 Lah. 1393 has not correctly laid down the law and in fact is contrary to the provision.
Whereas Mr. Hussain Adil Khatri learned counsel for the remaining legal heirs has submitted that the above Lahore case is in consonance with the provision.
Mr. Noorullah A. Manji learned counsel for the suction- purchasers has contended that the auction‑purchasers have acquired interest in the subject‑matter inasmuch as they had deposited the full consideration in terms of the auction about a year back and, therefore, it would not be just and proper not to confirm the sale in their favour, particularly in view of the fact that the application of the applicants was not competent in terms of the provision.
4. We may at the very outset point out that we are not called upon to decide the question, whether in the instant case it would be just and proper to confirm the sale or to give the property to five of the legal heirs out of nine in spite of the opposition by the auction‑purchasers and four legal heirs having 50% share as we have been referred to only the above question of law.
Mr. Fazle Ghani Khan has referred to the following cases:‑‑--
(1) Muhammad Din. v. Ilahi Noor and 4 others reported in P L D 1975 Lah. 1393 in which Aftab Hussain, J. (as he then was), held that the provision is not applicable to a partition decree, after referring to the case‑law, relevant provisions of the Partition Act and the provision. It was also held that an order of sale under the Partition Act being a decree could not have been set aside by the Executing Court.
2. Ram Prasad v. Ram Charan Singh and others reported in AIR 1916 Cal. 64. In the above case a Division Bench of the Calcutta High Court held that where after a sale in execution of a decree the decree‑holder is paid the amount of the decree and there is a concurrent wish of the parties that the sale should be set aside, the Court, although not warranted by any provisions of Rule 89 and onwards of Order XXI of the Civil Procedure Code, 1908, to set aside the sale, may treat the sale as being of no effect and may decline to confirm it.
3. Pandurang Laxman Uphade v. Govind Dada Uphade reported in A I R 1916 Bom. 57, in which a Division Bench of the Bombay High Court held that even if a judgment debtor transferred his interest in the property to a third person after the Court sale he has still a right to make an application to have the sale set aside under Order XXI, Rule 89, C.P.C.
4. Nirode Nath Bannerjee and another v. Amullya Dhone Bannerjee and another reported in A I R 1923 Cal. 582. Since the facts of this case have direct bearing to the facts of the present case, we may state the facts of the same. In the above case the suit was filed for partition which was referred to arbitrators who made an award, in which they inter alia directed that the family dwelling house of parties be sold by private treaty, and if not sold privately within a year, by the Court through auction and that out of the sale proceeds a sum of Rs.100 was to be paid to the plaintiff for his share in the movable and Rs.200 by way of mesne profits and the balance should be divided into four parts, one of which should go to the plaintiff and the remaining three to the Defendants/ Appellants. The award was confirmed by a decree of the Court. The appellants filed an application under Order XXI, Rule 89, C.P.C. for setting aside the sale and deposited a certain sum. The learned Single Judge of the Calcutta High Court held that the above rule was not applicable and did not confirm the sale. Upon appeal, it was held by a Division Bench that though some of the provisions of Order XXI, Rule 89, C . P. C . were not applicable but the sale was in execution of a decree and, therefore, the above provision was applicable and the case was remanded to the learned Single Judge for decision in terms of the judgment.
5. Kalyanee Debi v. Hari Mohan Ghose reported in A I R 1929 Cal. 574 in which it was held by a Division Bench ‑‑‑ that in sale held in execution of mortgage decree the amount to be recovered upon specifying in the sale proclamation but the application to set aside sale can be made on depositing five per cent. of purchase money and amount of decree by the judgment‑debtor for the purpose of Order XXI, Rule 89, C.P.C.
6. Official Assignee Bombay v. Jehangir Sorabji Dalal reported in A I R (30) 1943 Bom. 336. In the above case a learned Single Judge of the Bombay High Court held that the whole object of sub‑clause (b) of sub‑rule (1) of Rule 89 is to enable person bringing money to Court to know exactly what is the amount he has to deposit for payment to the decree‑holder.
7. Sita Ram Bishambar Dass v. Joginder Kumar and others reported in A I R 1963 Pub. 531 (V 50 C 149) in which it was held by a single Judge of the Punjab High Court held that a party had at one stage of the proceedings refused to purchase the property does not estop him from challenging the sale after it had taken place for there cannot be any estoppel against the statute and, therefore, he can make an application under Order XXI, Rule 89, C.P.C.
8. Mst. Alhamdi Begum v. National Bank of Pakistan reported in P L D 1976 Kar. 723. In the above case a Division Bench while construing Order XXI, Rule 90, C.P.C. observed that the object of procedural law is to promote dispensation of justice and extends by language remedy to avoid injustice.
5. Whereas Mr. Noorullah A. Manji has referred to the following cases:‑--
(1) Abdul Rahman v. Matiyar Rahman reported in I L R 30 Cal. 425, in which a Division Bench of the Calcutta High Court held that a person claiming under, the Mahomedan law share in some immovable property which has been sold in execution of a decree against his co‑shqrers, cannot come in and make a deposit under section 310‑A of the Civil Procedure Code, 1882 (Act XIV of 1882).
(2) Muhammad Din v. Ilahi Noor and 4 others reported in P L D 1975 Lah. 1393, referred to hereinabove in para. 4(1). In this case it was also held that an auction‑purchaser acquires a vested right to the confirmation of the auction.
Mr. Fazle Ghani Khan learned counsel for the applicants in reply to the above submissions has referred to the case of Fatima‑ul‑Hasna and others v. Baldeo Sahai and others reported in A I R 1926 All. 204. In this case a Full Bench of the Allahabad High Court while construing Order XXI, Rule 89 held that the words 'person owning such property' mean owning property at the date of application and that judgment‑debtor can apply under the rule as his interest does not cease till sale is confirmed.
Mr. Hussain Adil Khatri learned counsel for the remaining legal heirs has pointed out that the case of Nirode Nath Bannerjee and another v. Amullya Dhone Bannerjee and another reported in AIR 1923 Cal. 582 is distinguishable inasmuch as in the above the application for setting aside was made by the consent of the plaintiff and the defendant whereas in the present case admittedly the remaining legal heirs who hold 50 share are opposing the above application. In our view, only three out of the above‑cited cases have direct bearing, namely, the cases of 1923 Calcutta relied upon by Mr. Fazle Ghani Khan, I L R 30 Cal. 1903 and 1975 Lah. relied upon by the learned counsel for the remaining legal heirs and the auction‑purchasers. The other judgments cited by Mr. Fazle Ghani Khan have not touched upon the point in issue directly. However, it can be said that the other judgments relied upon by Mr. Fazle Ghani Khan indicate that the Court while construing the procedural provision will place liberal construction thereon with the object to foster the cause of justice than to defeat the same. But at the same time it may be pointed out that the Court while placing liberal construction on a procedural provision would not take away the vested right of a third person. We may refer to the provision, which read as follows:
"O.XXI, R. 89. Application to set aside sale on deposit.‑‑(1) Where 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:‑
(a) for payment to the purchaser, a sum equal to five per cent of the purchase‑money, and
(b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree‑holder.
(2) where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment‑debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale."
Above‑quoted Sub‑rule (1) of Rule 89 can be pressed into service by a person if he proves the following ingredients:‑‑
(1) The immovable property has been sold in execution of a decree;
(2) He either owns such property or holds an interest therein by virtue of title acquired before such sale;
(3) He applies for setting aside on his depositing in Court:
(a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and
(b) for payment to the decree‑holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree‑holder.
6. It may be observed that though in the above sub‑rule (1) of Rule 89, the words used are "where immovable property has been sold in execution of a decree", and the words "a money decree" have not been employed therein and, therefore, if we read the above words in isolation from the other portion of the said sub‑rule, it can be urged that a partition decree is also covered by the said provision. But if we read the sub‑rule as a whole, it becomes evident that a partition decree does not fit in the above sub‑rule for more than one reason. Firstly, in a partition decree all the parties having interest in the property to be partitioned, are in fact decree‑holders to the extent of their respective share. It is a decree akin to decree for accounts in which all the parties are plaintiffs and defendants. Secondly, apart from the fact there is no decretal amount, the sale proceeds of the property involved is to be distributed among the co‑sharers and, therefore, none can be said to be the judgment debtor. Thirdly, in case of a tie between two co‑sharers, as to the right to claim the property under above Rule 83 to the exclusion of other, there seems to be no provision in the above rule to resolve the above dispute. Similarly, there is no provision in the said rule to cater for a case in which some of the co‑sharers may oppose application under the above rule filed by some of the co‑sharers like the instant case in which co‑sharers having 50% share have opposed the aforesaid application of their remaining co‑sharers having 50% share.
We are, therefore, inclined to hold that the view found favour with Aftab Hussain, J. in the case of Muhammad Din v. Ilahi Noor and 4 others is more in consonance with the provision.
However, we may observe that the Court may adopt any procedural provision or procedure with the consent of all the parties concerned so long it does not violate any provision of law and does not affect the rights of any third person if the dictates of justice so demand.
(7) Our answer to the first part of the question referred to is in the negative, whereas to the second part in the affirmative.
M.B.A./A‑57/K Answer accordingly.
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