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Petitioner: AHMED ASIF SIDDIQUI and others VS Respondent: IIIrd ADJ EAST KARACHI and others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Syed Hassan Azhar Rizvi Title: AHMED ASIF SIDDIQUI and others vs IIIrd ADJ EAST KARACHI and others Case No.: Constitutional Petitions Nos.D-324 and D-323 of 2017 Date of Judgment:2019-02-26 Reported As: 2020 CLC 179 Result: Petitions allowed
JUDGMENT
JUDGMENT AZIZ-UR-REHMAN, J. By means of this 'common judgment', we propose to decide [i] Constitutional Petition No. D-324 of 2017 [Ahmed Asif Siddiqui and others v. laird ADJ East, at Karachi and 9 others] and [ii] Constitutional Petition No. D-323 of 2017 [Mazhar Javed v. Shahzad Rahim and 13 others], filed by the petitioners herein, who upon feeling 'aggrieved' and 'dissatisfied' with the common 'impugned order' dated 09.01.2017 [Annexure 'A' to MOPs], passed by learned Additional District Judge-III, Karachi-East in Civil Revision No.142 of 2016 [Shahzad Rahim son of Muhammad Rahim v. Ahmed Asif Siddiqui and 12 others], filed by the 'Auction Purchaser', whereby , Order dated 26.11.2016 [Annexure 'H' to MoP in CP No.D-324 of 2017 ], passed by IXth Senior Civil Judge, Karachi-East, in Execution No.20 of 2016 [Muhammad Asif Siddiqui and others v. Mst. lqbal Begum and others] , for holding 'fresh auction' through Nazir was 'set-aside' and consequently , Nazir of District and Sessions Court, Karachi-East, was directed to complete the sale proceedings in favour of the 'Auction Purchaser' viz. Shahzad Rahim son of Muhammad Rahim [Respondents Nos. 2 and 1 respectively in the above CPs], have approached this Court With a 'common prayer' for setting aside the ' impugn ed order' dated 09.01.2017 [Annexure 'A' to MoPs'], 'inter alia' on the ground that the same besides, being erroneous, suffering from material irregularity and illegality has been passed without proper application of judicial mind and appreciation of law. The 'prayers' sought in the Memo of Petitions [In short MoPs] of C.P No. D-324 of 2017 and C.P No. D-323 of 2017 , respectively read as follows: A. a). That the order dated 09.01.2017 passed by IIIrd Additional District Judge East in civil revision No.142/2016 be set-aside and the order dated 26.11.2016 passed by the IX Senior Civil Judg e east in Execution No.20/2016 may kindly be upheld. b) Cost of the proceedings. c) Any other relief which this Hon 'able court may deem fit and proper in the circumstances.
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B. a) To call for the R&Ps. of Execution Application No.20/2016, Civil Suit No.1383/2012 (Ahmed Asif Siddiqui and others v. Mst. lqbal Begum and others ) from the Court of IXth. Senior Civil Judge, Karachi-East and after perusal of the same and hear the parties, may graciously be pleased to allow this petition and set aside the impugned order dated 09.01.2017 and to upheld the order of the trial Court i.e. learned IXth. Senior Civil Judge, Karachi-East dated 26.11.2016 and to direct the Nazir to initiate further proceedings in accordance to the order dated 26.1 1.2016. b) To say the proceedings till decision of this petition. c) Any other further relief/reliefs which this Hon'ble Court may deem fit and proper under the circumstances of the case. 2. The facts giving rise to the filing of insta nt petitions are that Petitioners Nos.1 to 5 in C.P. No.D-324 of 2017 , filed a Civil Suit No.1383 of 2012 [Ahmed Asif Siddiqui and others v. Mst. lqbal Begum and others ) inter alia for partition of an immoveable property viz. House bearing No.A-310/3, Block-3 Gulshan-e-Iqbal Karachi, measuring 240 sq.yds having Ground + One Storey construction [hereinafter referred to is the 'subject property], before the Court of IXth Senior Civil Judge, Karachi-East. The said civil suit was decreed on 'merits' vide Judgment and Decree both dated 23.02.2016, passed by the learned IXth Sr. Civil Judge, Karachi-East, as prayed, however , with no order as to cost. 3. The aforesaid Petitioners Nos.1 to 5, [Plaintif fs-D/Hs], thereafter , filed an Execution Application No.20/2016 [Ahmed Asif Siddiqui and others v. Mst. Iqbal Begum and 7 others ), arising out of Civil Suit No.1383 of 2012, for enforcement of the judgment and decree both dated 23.02.2016. The said Execution Application was allowed vide order dated 29.7.2016, passed by Executing Court i.e. learned IXth Sr. Civil Judge, Karachi [East]. For ready reference and convenience purpose Order dated 29th July , 2016, is reproduced herein below:- By this order I intend to dispose of the execution application filed by the decree holders against the judgment debtors for satisfaction of the decree. The learned counsel for the decree holder argued that the judgment debtors has failed to satisfy the decree, hence this execution application. He further argued that the judgment debtors are lingering on the matter and intentionally avoiding to satisfy the decree. He prayed to allow the execution application. On the other hand neither JDs appeared in this case nor filed objections. Heard the learned counsel for the decree holders and perused the record. The Suit No.1383 of 2012 was decreed vide judgment and decree dated 23.02.2 016 in favour of the plaintiff/decree holder . The judgment debtors cannot absolve his liability to satisfy the decree. There is neither any stay in operation nor is there anything on record to disallow the execution application, hence this execution application is allowed . [Underlining is ours]. 4. It appears that during the pendency of the execution proceedings, on 04.08.2016 , Nazir of District and Sessions Court Karachi-East, was directed to inspect the 'subject property' i.e. House No.A-310, Block No.3, Gulshan-e- Iqbal, Karachi, measuring 240 sq.yds having Ground + One Storey construction and see and report as to whether the 'subject property' is divisible / partitionable or the position remains otherwise. On inspection of the 'subject property' Nazir , thereafter , did submit his report dated 18.08 2016 , which reads as follows:- NAZIR REPORT "It is respectfully submitted that in compliance of order dated 04.08.2016, the undersigned issued notice(s) to the parties for 16.08.2016 to inspect the suit property i.e. A-310, Block 03, Gulshan-e-lqbal, Karachi, whether the suit property is partitionable or not. The undersigned reached at suit property i.e. A-310, Block 03, Gulshan-e-lqbal, Karachi on 16.08.2016 where plaintiff No.] and his counsel namely M. Khalid were present but none of the defendant(s) was available nor his counsel was present. The suit property was in possession of tenant(s). The undersigned visited the suit property which was about 240 Sq. Yds and Ground Plus one storied RCC old constructed bungalow each floor consisted 5 rooms 1 kitchen and one common. The undersigned go through the title which shows that there are 13 L. R in the matter . It is important to mention here that the advocate for Decree-holder also submitted statement at the suit property stating therein that:
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"the suit property is 240 Sq. Yards constructed Ground + one storey . The possession of property is with the decree holder since there are 13 share holder/legal heirs in respect of suit property . Therefore the partition of suit property is not suitable and the same may kindly be auctioned and sale proceed be distributed according to the respective shares." [Underlining is ours]. Under the above circumstances the suit property in the present position is not partitionable." Report is submitted for further direction. SD/- 18/8/16 NAZIR District and Sessions Court Karachi East Attached: 1. Statement filed by the Advocate for the Decree-Holder . 2. Notice along with Bailiff report. 3. TCS Receipt. 5. From the record, it reflects that the Plaintif fs'/Decree-Holders' [Petitioners Nos.1 to 5 in C. P. No. 324 of 2017 ] filed an Application \ under section 151, C.P.C., in the said Execution Application No. 20 of 2016, with a prayer that 'subject property' be auctioned in view of Nazir's Report dated 18.08.2016. On the said application under section 151 C.P.C., filed by Decree Holders in Execution No.20 of 2016 [Annexure "F" to the MoP in C.P. No.324 of 2017 ], on 02.09.2016 , the following order was passed: 'Let the Execution be sent to Nazir for Auction Proceedings' 6. The Nazir of District and Sessions Court, Karachi-East, thereafter , initiated/st arted 'auction proceedings' and resultantly , 'proclamation of sale' dated 17.6.2016, was published in daily 'JANG ' dated 19.9.2016, in respect of 'subject property'. Per record, on 24.10.2016 , at about 2:00 pm the 'auction proceedings' were carried out. In the auction proceedings held on 24.10.2016, Petitioner No.1 [Ahmed Asif Siddiqui son of late Muhammad Asif Jah Siddiqui ] and Respondent No.2 [Shahzad Rahim son of Muhammad Rahim-Auction Purchaser ], amongst others did participate in the auction proceedings and Respondent No.2 [in CP No.D-324 of 2017 and in CP No.D-323 of 2017 respectively] since, stood the highest bidder in the sum of Rs.13,900,000 /-, as per 'terms' and 'condition' of 'sale proclamation' also deposited 25% of the bid money i.e. Rs.3,475,000 /- with the Nazir of District and Sessions Court, Karachi-East. According to the Petitioners' version, during the auction proce edings, counsel for respondents Nos.3 to 10 [who are J/Ds and legal heirs of the original deceased owner viz. Mst. Zab-un-Nissa], was not only in attendance but had also shown his willingness and readiness on behalf of Respondents Nos.3 to 10 [J.Ds/Defendants in No.1383 of 2012], to purchase the 'subject property', above the bid amount of Rs.1,39,00,000/- i.e. at Rs.1,48,00,000 /- [Rupees One Crore Forty Eight Lac only] but the Nazir , as alleged in Memo of Petition did not mention such offer of Rs.1,48,00,000 /- in his 'Auction Report' dated 25.10.2016. The 'Auction Report' dated 25.10.2016, submitted by Nazir of District and Sessions Court, Karachi-East, as being relevant is also reproduced here-in-below:- In pursuance of proclamation of sale published in daily 'JANG' in its issue dated 19.09.2016, the movable property as mentioned in publication were put for auction in the office of the undersigned on 24.10.2016 at about 2:00 p.m. At about 2:00 p.m. 1 read out and explained the terms and conditions of the sale / auction to the person, who were present during the auction proceeding and offered his bid as under: SR. No. NAME OF BIDDER AMOUNT 1. Shahzad Raheem Rs. 1,39,00,000/ 2. Saeed ur Rehman Rs. 1,26,50,000/ 3. Ahmed Asif Siddiqui Rs.1,23,00,000/
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4. Khurram Shahzad Rs.1,12,00,000/ 5. Wahab Akhter SiddiquiRs.1,11,00,000/ Accordingly , Shahzad Raheem son of Muhammad Raheem, resident of House No.436, Mohallah Baran Goth, Masquat Road, Garden East, Karachi, holding CNIC No.42201- 5683747-3, whose bid for Rs.1,39,00,000/- along with 10% withholding tax and he is declar ed to be the highest bidder but subject to confirmation by the Honourable Court as provided under the Rules. It is important to mention here that Mr. Muhammad Zahid Kabeer Advocate appeared and filed Vakalatnama on behalf of attorney of J.D and he submitted statement in which he has offered bid for Rs.1,38,00,000/ but bidder Shehzad Raheem has offered his highest bid i.e Rs.1,39,00,000/-. As per terms and conditions of the sale / auction the purchaser of the subject property deposited 25% of the bid money viz Rs.34,75,000/- through Cheque No.43019402, dated 24.10.2016 of Rs. 34,75,000/-, Habib Bank Limited, High Court Branch, Karachi ( subject to realize ). The report alongwith bidding papers and photocopies of CNIC's of the bidder are submitted herewith for kind perusal and orders. " [Underlining is ours). 7. Later-on, when, the matter came-up before the Court on 31.10.2016, for perusal and order on the above Nazir's Report then, apart from the legal heirs of deceased Mst. Zaib-un-Nisa [Judgment-debtors], the other set of legal heirs of deceased Muhammad Asif Jah Siddiqui [Decree Holders] not only shown their readiness to match the bid of 'Auction Purchaser', but, as averred, in Memo of Petition of CP No. D-324 of 2017 had shown their intention to purchase the shares of all other legal heirs [i.e. J/Ds-Respondents Nos.3 to 9 herein]. In this regard, the Petitioners [D/Holders], it appears had also filed a statement [Annexure 'F' to MoP in C.P. No.D-324 of 2017] , wherein, the Decree Holders [Petitioners in C.P. No. D-324 of 2017] had expressed their readiness/willingness to purchase the shares of other legal heirs , by matching the highest bid. Likewise, the Respondent No.4 in C.P. No.D-324 of 2017 viz. Mazhar Javed son of Khursheed Ahmed Shah [Petitioner in C.P. No.D-32 3 of 2017], had also filed an application under section 151, C.P.C. whereby , he also raised his offer in respect of the 'subject property' to Rs.17,000,000 /-.[Rupees Seventeen Million only]. This fact is also evident from Order dated 26.11.2016, passed by the learned Executing Court for holding 'fresh auction' of the 'subject property' through Nazir of District and Sessions Court, Karachi-East. The statement filed by the Decree Holders in Execution No,20 of 2016, reads as follows:- STATEMENT It is respectfully submitted on behalf of the decree Holders above named that the decree Holder is ready able and willing to match the Highest bid offered in auction and ready to deposit the share of the Judgment Debtors in Court. It is further submitted that the decree Holders are co-sharers of the property and in terms of Order XXI, Rule 88, C.P.C., his offer may kindly be given preference. 8. Needless to say, the 'subject property' was originally belonged to Mst. Zaib-un-Nisa and on her death Muhammad Asif Jah Siddiqui son of Late Muhammad Asif Jah Siddiqui, inherited his proportionate share in the 'subject property'. Subsequently , on the death of Muhammad Asif Jah Siddiqui, the Petitioners in C.P. No.324 of 2017 [Decree Holders], inherited their proportionate share of deceased Muhamm ad Asif Jah Siddiqui. In view of this position, the Petitioners, as urged, had got vested right in the 'subject property' to the extent of their proportionate shares. The Petitioners, as seen, had also offered and shown their readiness to match the highest bid of the 'Auction Purchaser' and also to deposit the shares of other legal heirs (J/Ds-Respondents Nos.3 to 10 in CP No.D-324 of 2017]. According to Petitioners' versions, it is a settled principle of law that in a matter of inheritance , as the case in hand is, the offer of the legal heirs ought to be given a preference over the offer of 3rd party but, this, indeed, would be subject to the ability of legal heirs to match the highest bid. The legal heirs i.e. Decree-holders and Judgment-debtors before the Executing Court did not extend their consent in favour of the 'Auction Purchaser' rather they themselves had shown their intention to purchase the 'subject property' for higher amount than the of fered amount of the 'Auction Purchaser'.
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9. The Executing Court upon consideratio n of the facts and willingness of the legal heirs i.e. Decree-holders and Judgment-debtors to purchase the 'subject property', nevertheless, formed a view that the 'subject property' i.e. House No.A-310, Block No.3, Gulshan-e-Iqbal, Karachi, measuring 240 sq.yds having Ground + One Storey construction, under the prevailing circumstances, can fetch more price than, the highest offer of Rs.1,39,00,000 /-, given by the 'auction purchaser' viz. Shehzad Rahim son of Muhammad Rahim [Respondent No.2 in CP No.D-324 of 2017 and Respondent No.) in CP No.D-323 of 2017 ]. The Executing Court, it appears, was well aware of the current Market Value of the 'subject property' and its' location, while passing order dated 26.11.2016 [Annexure 'H' to MoP of CP No.D-324 of 2017] whereby , not only the offer of the Auction Purchaser was rejected but the Nazir of District and Sessions Court, was directed to hold 'fresh auction'/'sale' of the 'subject property', but, without disturbing the right of participation of the parties and 'Auction Purchaser' in the 'fresh auction proceedings' to be held by the Nazir of District and Sessions Court, Karachi-East. 10. The 'auction purchaser' namely Shahzad Rahim s/o Muhammad Rahim, nevertheless, somehow , feeling himself 'aggrieved' and 'dis-satisfied' with order dated 26.11.2016 , passed by the Executing Court i.e. learned IXth Senior civil Judge, Karachi-East, for holding 'fresh auction'/`sale' of the subject property', in his own wisdom, opted to file a Civil Revision No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddiqui and others ], before the Court of Additional District Judge-III, Karachi-East, with prayers as follows:- "It is, therefore, prayed by Applicants that this Honourable Court may graciously be pleased to call for the R&Ps of the Execution Application No.20/2016, (Civil Suit No.1383/2012) Ahmed Asif Siddiqui and others v. Mst. Iqbal Begum and others , from the Court of IXth Senior . Civil Judge, Karachi East and after perusal of the same and hearing the parties may graciously be pleased to allow the Revision Application and set aside the Order dated 26- 11-2016, and confirm the highest bid of the Applicant in respect of suit property and direct the Nazir of District and Sessions Courts, Karachi East to initiate further proceeding respect to auction acco rdingly . [Underlining is ours] Any other or further relief/relives which this Honourable Court may deem fit, and proper under the circumstances of the case." 11. The aforesaid Civil Revision Application No.142 of 2016 [Shahzad Rahim v. Ahmed Asif Siddique and 13 others ], when came-up on 09.01.2017, before the Court of learned Additional District Judge-III, Karachi-East, then, Order 16.11.2016 [Annexure 'H' of MoP in CP No.D-324 of 2017], passed by the Executing Court for holding a 'fresh auction'/ 'sale' of the 'subject property' having 'impugned in the Civil Revision Application [In short CRA], by the Auction Purchaser was set-aside. The 'relevant portion' of the order dated 09.01.2017 , impugned herein, [Annexure 'A' to MoPs], reads as follows: "...Perusal of record shows that respondents Nos. 1 to 5 filed Civil Suit No.1383/2012 for partition against respondents Nos.6 to 13. Said suit was decreed. Since suit property was not auctionable as per Nazir report dated 18.08.2016, learned counsel for the respondents Nos.1 to 5/decree holders filed application for sale of suit property through auction. Such application was allowed and auction proceedings were held on 24.10.2016 and Nazir submitted his report before the learned executing Judge on 25.10.2016. Perusal of Nazir report shows that 5 participants including the respondents put their appearance in auction proceedings. Auction purchaser succeeded by offering highest bid for an amount of Rs.1,39,00,000/-. It is a general principle that auction proceedings gets finalized on fall of hammer and the matter is formally referred to the executin g Court for acceptance unless something against the law has been pointed out. Main contention of the respondents who are legal heirs and co- sharer is that highest bid amount is much less than the market value of the subje ct property , therefore, they have shown their willingness to purchase subject property . Respondents Nos.6 to 13 have offered to pay Rs.1,48,00,000/ (10% more than the amount Rs.1,38,00,000/- offered at the time of auction proceedings). Subsequently they offered amount Rs.1,70,00,000/- . Besides that respondents Nos.6 to 13 also moved application to allow them to purchase the suit propert y at the highest bid. Learned executing Judge rejected Nazir report for the reasons that suit property can fetch more price than as has been given in the bid. Such observation was based on the basis of contention of respondents that the amount offered by the auction purchase is much less than the market value of the subject property . It is an admitted position that all the respondents have participated in the auction proceedings and in case they were of the view that the bidder has offered less amount than the market
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value, they could have make their own offer on the basis of market value of the suit property . No such objection was raised during the auction proceeding s. Besides that none of the respondents filed any objection to the Nazir report. Hence, the plea of respondents seems to be an afterthought version. Since the auction proceedings have been initiated as per law, I do not find any reason for its rejection, therefore, the order passed by learned executing court is hereby set aside with direction to Nazir to complete the sale proceedings. The revision application is accordingly allowed in above terms. " [Underlining is ours]. 12. The Decree Holders and J-D No.2, thus feeling 'aggrieved' and 'dis-satisfied' by the 'impugned order' dated 09.01.2017 [Annexure 'A' to MoPs], passed by learned Additional District Judge-Ill, Karachi-East, have approached this Court by way of filing the instant CP No.D-324 of 2017 and CP No.D-323 of 2017 'inter alia' with a 'common prayer' for setting aside the 'impugned order' dated 09.01.2017 . [Annexure 'A' to M .O. Ps] . 13. On 19.01.2017, when CP No.D-323 of 2017 [Mazhar Javed v. Shahzad Rahim and 13 others ], filed by J.D. No.2 viz. Mazhar Javed son of Khursheed Ahmed Sheikh, came-up before the High Court then, while, issuing notice to the Respondents, till the next date of hearing i.e. 02.02.2017, 'Sale Proceedings' in Execution No.20 of 2016 [Ahmed Asif Siddiqui and others v. Mst. label Begum and others ], arising out of Suit No.383 of 2012, was ordered, not to be finalized by the Executing Court. Being relevant order dated 19.01.2017, passed in CP No.D-323 of 2017 , is reproduced here-in-below:- 19.01.2017 Mr. Riaz Ahmed Phulpoto, Advocate for the petitioner . 1. Urgency granted. 2. Exemption is granted subject to all just exceptions. 3 & 4. It is contended inter alia on behalf of the petitioner that he was ready to purchase the subject property at a price higher than etc price at which the same was auctioned by the executing Court ; such request made on his behalf was accepted by the executing Court, but the learned revisional Court has set aside the order passed by the executing Court with the direction to complete the auction at the price lower than the price offered by the petitioner . It is urged that it would have been in the interest of all the parties had the subject property been sold at a higher price as all the parties are co-owners thereof. Issue notice to the respondents for 02.02.2017. Till the next date of hearing, sale proceedings in Execution No.200/2016 in Civil Suit No.1383/2012 shall not be finalized by the executing Court, namely , IXth Senior Civil Judge, Karachi-East . [Underlining is ours] 14. In another-CP No.D-324 of 2017, filed by the Decree-Holders [Petitioners herein], this Court on 19.01.2017, while, issuing notice to the Respondents for 02.02.2017 , office was directed to club the file of CP No.D-324 of 2017 with C.P.No.324 of 2017. Since, then, both CPs are being fixed in Court together . In both CPs, it is significant to note, despite of service, none of the 'Respondents ' including 'Auction Purchaser' has bothered to file any objections in opposition thereof, as such, the averments' and 'assertions' made in the Memo. of Petitions, have gone un- rebutted/un-challenged. 15. Lastly , on 07.02.2019 , when the above Petitions came-up before us, then, we heard Mr. Muhammad Khalid, learned counsel for the Petitioner in C.P. No.D-324 of 2017, Mr. Riaz Ahmed Phulpoto, learned counsel for Petitioner in CP No.323 of 2017 and Mr. Junaid Alam, learned counsel for Auction Purchaser namely Shahzad Rahim son of Muhammad Rahim as being Respondents Nos.2 and 1 respectively , in C.P. No. 324 of 2017 and C.P. No.D-323/2017, and with their valuable assistance, also gone through the available record before us. 16. Mr. Muhammad Khalid, learned coun sel for the Petitioners Nos.2 to 4 in CP No.D-324 of 2017 while, arguing the case, forcefully submitted that Order dated 26.11.2016, [Annexure 'H' to MoP in CP No.D-324 of 2017], passed by Executing Court, has wrongly been set-aside by Revisional Court that is to say in excess of its' jurisdiction through the impugned order dated 09.01.2017 [Annexure 'A' to Mo. Ps]. Per learned counsel, the Executing Court while, exercising its' discretion under the facts and circumstances of the case found itself satisfied and rightly observed that the 'subject property' , has the potential, to fetch much higher price than the offer of the 'Auction Purchaser' in the sum of Rs.1,39,00,0001 [Rupees One Crore Thirty Nine Lacs only], if, the same is put to
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sale/auction afresh. Per learned counsel for the Petitioners in CP No D-324 of 2017, the Executing Court as being a custodian of the rights of the parties/legal heirs, has rightly exercised its' discreti on to direct fresh sale/auction of the 'subject property' through the Nazir of District and Sessions…
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