Application is not for setting aside sale under Order XXI Rule 90 CPC but to set aside auction proceedings.

19. The case law relied upon by learned counsel for the petitioner is not relevant to the facts of this case. In Mst. Nadia Malik case supra, the facts are that admittedly 1/4th amount paid through cheque and remaining amount was not paid in 15 days and instead application for extension of time was made. It was in these circumstances, august Court held sale to be nullity. Further said case being in banking jurisdiction application was under section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and apex Court held that 20% deposit condition cannot be applied to give premium to the auction purchaser over his default. However, in present case as discussed above, the 1/4th was deposited with Court auctioneer in time and auction purchaser was also ready to deposit the remaining 75% in time but could not deposit due to stay by revisional Court. He also sought guidance of executing Court, which allowed him to deposit 75% of amount after revision was disposed of. Beside above, in present case, instant application is not for setting aside sale under Order XXI Rule 90 CPC but to set aside auction proceedings. Similarly cases of Haji Zahid Saeed etc supra and Messrs Ali Match Industries etc supra are not applicable, being relating to cases where application under Order XXI Rule 90 was filed. Whereas in case of Sheikh Niamat Ali supra, Afzal Maqsood Butt supra, Muhammad Afzal Khan etc supra, admittedly 75% amount not deposit without due cause. In case of Khursheed Begum etc supra, the best property in locality was sold away on throw away price which resulted to injury due to material irregularities, which is not case here. In case of Brig. (Retd.) Mazhar-ul-Haq etc supra, Court held that non fixation of reserve price will have strong bearing on allegation of fraud but in this case, there is no question of fraud specially when the auction purchaser himself offered to cancel auction in his favour if his bid money be returned by objector/judgment debtor. 

 Part of Judgment 

 IN THE LAHORE HIGH COURT MULTAN BENCH, MULTAN JUDICIAL DEPARTMENT.

Civil Revision-Civil Revision (Against Interim Order)
375-15

2017 LHC 1880