Shafiqur Rehman Vs Nasir Mahmood etc.

Stereo:HCJDA-38

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 4141 of 2024

Shafiqur Rehman

Versus

Nasir Mahmood (deceased) through L.Rs etc.

JUDGMENT

Dates of Hearings: 19.11.2025, 26.11.2025, 04.12.2025, Petitioner By: Mian Muhammad Aslam, learned Advocate.

Respondents No. 1 Malik Muhammad Faiz Khokhar, (1-a to 1-I), 2, 3 & learned Advocate.

Respondent No. 4 Malik Aftab Farrukh, learned Advocate.

Sultan Tanvir Ahmad J:- Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan-1973, the petitioner has challenged the order dated 06.11.2023 passed by the learned trial Court and judgment dated 11.12.2023 passed by the learned revisional Court.

2.Mian Muhammad Aslam (learned-ASC), on behalf of the petitioner, has submitted that requirement to deposit 50% of sum realized in the sale, under the second proviso to Order XXI-Rule 90 of the Code of Civil Procedure-1908 (the ‘Code’), is not applicable to the present case for the reasons that the petitioner is a bona fide objector. He has further contended that Order XXI-Rule 72 of the Code was not required to be followed, alleging its conflict with the

provisions of the Punjab Partition of Immovable Property Act- 2012 (the ‘Act of 2012’). In course of arguments, he has relied upon cases titled “Hudaybia Textile Mills Ltd. and others vs. Allied Bank of Pakistan Ltd. and others” (PLD 1987 S.C. 512), “Messrs Nice ‘N’ Easy Fashion (Pvt.) Ltd. and others vs. Allied Bank of Pakistan and another” (2014 SCMR 1662), “Zakaria Ghani and 4 others vs. Muhammad Ikhlaq Memon and 8 others”(PLD 2016 S.C. 229) and “Messrs Habib and Company and others vs. Muslim Commercial Bank Limited and others”(2019 SCMR 1453).

3.This petition is opposed by Malik Muhammad Faiz Khokhar, learned Advocate for respondents No. 1-a to 1-I, 2, 3 and 5, who has referred to the different orders passed by the learned trial Court, highlighting the conduct of the petitioner. Malik Aftab Farrukh (learned Advocate for respondent No. 4) has appeared on different dates of hearings and instead of arguing the case he has stated that the case may be decided on merits and at earliest. Even otherwise, the said respondent never objected the auction which is subject matter of this petition .

4.Learned advocates for the parties have formulated the following two questions to be addressed by this Court:- i. If the learned trial Court is justified to direct the petitioner to deposit 50% of the sale amount?

ii. The applicability of Order XXI Rule 72 of the Code to proceedings in pursuance of preliminary decree passed under the Act of

5.The second proviso to Order XXI-Rule 90 of the Code went up for consideration before the Supreme Court of Pakistan in various cases. In case titled “Mst. Samrana Nawaz and others vs. MCB Bank Ltd. and others” (PLD 2024 S.C. 873), an Honourable Four Members Bench, after examining

the provisions as well as the previous judgments on the subject, has concluded that the second proviso requires the learned executing Court to exercise its discretion to determine appropriate amount while keeping in view different factors including the time elapsed since filing of execution petition and the previous conduct of the applicant. Once this amount is determined, which should not exceed the maximum percentage of sale price permitted under Order XXI-Rule 90, a fair opportunity should be given to the objector to deposit the same. It has been emphasized that the proviso envisages the maximum amount and permits the learned executing Court to fix an amount less than the same or to furnish security, as the Court may deem appropriate keeping in view the factors indicated in the judgment. Paragraph No. 9 of the said judgment is important for the present case, which reads as under:-

“...Next, we briefly discuss the purpose of the second proviso and the considerations that may guide the executing court in exercising its discretion under the second proviso to determine an appropriate amount. Evidently, the purpose of the second proviso is to discourage frivolous objections. The condition stipulated in the second proviso for entertaining the application ensures that the rule is not misused to delay the completion of the same and expeditious conclusion of the execution proceedings, and that the objections are made only by bona fide persons on valid grounds. If upon adjudication the application is found frivolous, the amount deposited or the security furnished, as the case may be, by the applicant is to be appropriated for awarding costs to the person(s) who suffer from the delay in completing the sale due to the filing of the application. Therefore, in determining the amount required to be deposited, the executing court should consider various factors such as the decretal amount, the time elapsed since filing the execution petition, the sale amount and the applicant’s previous conduct, etc., and fix an amount reflective of the costs likely to be awarded to the affected party in case of dismissal of the application. The literal meaning of the

second proviso as ascertained above, which signifies the discretion of the court to determine an appropriate amount not exceeding twenty per cent of the sum realized at the sale, thus aligns with its purpose as well...”

(Emphasis supplied)

6.The purpose of requiring to deposit the amount under the second proviso has been elaborated to deter the frivolous objections. In case titled “Tariq Zubair Khan vs. Mst. Tabassum Khan and others” (2024 SCMR 1218) it has been observed that rational behind the second proviso is to discourage the frivolous objections filed to frustrate the execution of decree. In the said judgment learned Court directed the objector to deposit maximum amount permitted by the proviso. When it was found that the applicant concerned has neither sought extension of time nor showed any willingness to deposit such amount, the appeal preferred by him was dismissed.

7.In the present case, preliminary decree was passed on 14.03.2022 as a consequence of a suit filed by Nasir Mahmood-deceased predecessor of respondents No. 1-a to 1- k, Zahid Mahmood / respondent No. 2 and Mst. Shahida Rehman / respondent No. 3. The efforts of internal auctions were made. The internal auction admittedly failed by 18.03.2023. Upon which the Court proceeded to hold open auction in terms of section 11 of the Act of 2012. In April- 2023 an open auction was conducted. The successful bidder gave offer of Rs.131,100,000/-, however, it was found that the bidder, namely, Muhammad Tariq Mahmood was not a serious participant. He gave a cheque of 20% of the bid- amount as earnest money. This cheque contained cutting in the hand written portion and it could not be presented for encashment. He then failed to approach the Court showing any concern. The learned Court proceeded to hold second

auction. Highest bid of Rs.75,000,000/- was received from Shafique son of Noor Ahmad. This so-called bidder once again showed no interest and also failed to arrange 20% of the offered price.

8.After failure of the said two open auctions, third auction was held on 21.10.2023 when Mst. Shahida Rehman / respondent No. 3 remained successful bidder against an amount of Rs.61,500,000/-. Mian Muhammad Aslam (learned senior-ASC) has stated that in the previous auction the present petitioner was willing to pay Rs.80,000,000/-. I have given chance to the petitioner to show seriousness in this regard. He was given opportunities on 19.11.2025 and 26.11.2025 to even introduce any party who is willing to purchase the property for the higher amount. He merely kept on gaining time for the same.

9.A dispute was also created by the present petitioner on 22.07.2023 before the learned Court of first instance, when the petitioner approached the learned Court with an offer to pay Rs.80,000,000/-. He was invited to deposit 20% of the same in terms of section 11(5)(a) of the Act of 2012. However, the learned Court has noted a statement of the present petitioner on the said date of hearing that he would not let anyone to purchase the disputed property. He after making some offer became disinclined. The learned trial Court categorically observed that the property in question has been given on rent by the petitioner and he is trying to delay the proceedings to deprive other share-holders / his brothers and sisters from the fruits of the preliminary decree. The following observations of the learned Court are noticeable:- “...It is pertinent to mention here that during course of negotiation, defendant No. 2 seems reluctant for final commitment and a number of times said (Sir, please prolong the matter), which is astonishing for the court and other parties because generally parties in the Lis are willing to

close the chapter as early as possible but in the instant case, defendant No.2 is trying his tooth and nail to keep the litigation alive. After active efforts of the court and learned counsels spanning over two and half hours, when Stenographer was called to dictate the finalized order and to ink the terms of the agreement, the defendant No.2 abruptly left the court. Learned counsel on his behalf called defendant No.2 but could not reach. The subsequent conduct of defendant No.2, his initial remarks regarding delay of proceedings and absence of defendant No.1 shows that defendants No.1 & 2 are not interested in the finalization of matter and want to linger on the matter indefinitely...”

10.As already discussed above, the conduct of the petitioner remained almost the same before this Court. He neither made any request to pay any amount, even less than 50% of the sale amount nor showed any willingness in this regard. He just kept on referring to previous auction amounts, however, he has no answer to the fact that the bidders of the previous auctions were totally non-serious. I am of the view that in the absence of any willingness or a request to pay any amount or percentage of the sale or to give any security, the arguments made are not tenable. Needless to reiterate that the conduct of the objector is one of the determining factors for the amount or security required to be deposited, as per the law settled by the Honourable Supreme Court and referred above.

11.Second point formulated above and raised by the petitioner-side is regarding applicability of Order XXI Rule 72 of the Code to the proceedings under the Act of 2012. If co-owners refuse to participate in internal auction and only one co-owner shows his willingness or the internal auction under section 10 of the Act of 2012 has failed, the learned Court after fixing the reserve price of immoveable property is required to direct open auction of the property. Under section 11(2) of the Act of 2012 co-

owner of the immoveable property is permitted to participate in the open auction. The said sub-section reads:- “(2) A co-owner of the immovable property may participate in the open auction of the property.”

12.Section 15 of the Act of 2012 itself provides that subject to the Act, the provisions of the Code shall be applicable to any proceedings. Meaning thereby that provisions of the Code, to any proceeding, are applicable where this special law is silent. Reference, if required, can be made to the case titled “Muhammad Zulfiqar and another vs. Additional District Judge (West), Islamabad and others” (PLD 2016 Islamabad 91).

13.For what has been discussed above, there is no reason to interfere in the concurrent decisions of the learned two Courts below. This petition, therefore, is dismissed. No order as to cost.

(Sultan Tanvir Ahmad) Judge

Approved for reporting.

Judge

Announced in open Court on ___________.

Judge

Rana Zahid Bashir