Co-owner participation in partition sales

Execution proceedings fail not because the law is uncertain, but because litigants mistake obstruction for entitlement — and courts are then compelled to draw a hard procedural line.

Deposit Requirement under Order XXI Rule 90 CPC and Co-owner Participation in Partition Sales:

Judicial Restraint in Writ Jurisdiction under Article 199

Issue

Whether an objector to a court auction can be exempted from depositing an amount under the second proviso to Order XXI Rule 90 CPC on the plea of bona fide objection

The primary issue before the Court was whether the learned executing court acted unlawfully in directing the petitioner–objector to deposit fifty per cent of the sale amount under the second proviso to Order XXI Rule 90 of the Code of Civil Procedure, 1908, and whether such requirement could be dispensed with merely because the objector claimed to be bona fide.

Whether Order XXI Rule 72 CPC is inapplicable to proceedings conducted under the Punjab Partition of Immovable Property Act, 2012

The second question concerned the alleged non-applicability of Order XXI Rule 72 CPC to partition proceedings culminating in auction under the Punjab Partition of Immovable Property Act, 2012, particularly where a co-owner participates in an open auction following the failure of internal auction.

Law

Constitutional limits of writ interference

Article 199 of the Constitution of Pakistan, 1973 confers a supervisory and corrective jurisdiction upon the High Courts, not an appellate forum to reassess facts or substitute discretion. Interference is warranted only where an order suffers from jurisdictional defect, patent illegality, or perversity.

Statutory framework of Order XXI Rule 90 CPC

The second proviso to Order XXI Rule 90 CPC mandates that an application to set aside a sale shall not be entertained unless the applicant deposits such amount as the Court may determine, not exceeding the prescribed maximum, or furnishes security. The object of the proviso is to discourage frivolous objections and to ensure expeditious completion of execution proceedings.

The discretion vested in the executing court is guided by factors including the decretal amount, time elapsed, sale price, and — critically — the conduct of the objector.

Scheme of the Punjab Partition of Immovable Property Act, 2012

Sections 10 and 11 of the Punjab Partition of Immovable Property Act, 2012 provide a structured mechanism for internal auction among co-owners, followed by open auction where internal auction fails. Section 11(2) expressly permits a co-owner to participate in an open auction. Section 15 of the Act stipulates that, subject to the Act, the provisions of the CPC shall apply to proceedings thereunder, thereby incorporating procedural rules where the special law is silent.

Analysis

Conduct of the petitioner and the rationale for deposit under Order XXI Rule 90 CPC

The execution proceedings stemmed from a preliminary decree passed on 14.03.2022 in a partition suit instituted by the predecessor of the respondents. Multiple attempts at internal auction failed, followed by successive open auctions which collapsed due to non-serious bidders. Ultimately, an open auction held on 21.10.2023 resulted in a successful bid by a co-owner.

Throughout these proceedings, the petitioner repeatedly made higher offers without demonstrating seriousness, failed to deposit even the minimum earnest money, and openly displayed an intent to delay the matter. The trial court recorded detailed observations regarding the petitioner’s obstructive conduct, including express reluctance to allow finalisation of the sale and attempts to prolong litigation to continue enjoying rental income.

In this backdrop, the learned executing court directed deposit of fifty per cent of the sale amount under the second proviso to Order XXI Rule 90 CPC. The petitioner neither sought reduction of the amount nor offered security, and showed no willingness to comply even partially.

The discretion exercised by the executing court squarely aligned with the law laid down by the Supreme Court of Pakistan in Mst. Samrana Nawaz v. MCB Bank Ltd. (PLD 2024 SC 873), where it was held that the proviso is meant to deter frivolous objections and that the conduct of the objector is a decisive factor in determining the amount to be deposited. Similar principles were reiterated in Tariq Zubair Khan v. Mst. Tabassum Khan (2024 SCMR 1218), where failure to comply with deposit requirements led to dismissal.

Given the petitioner’s consistent unwillingness and dilatory tactics, the requirement of deposit could not be termed arbitrary or excessive.

Applicability of Order XXI Rule 72 CPC to partition proceedings

The petitioner’s contention that Order XXI Rule 72 CPC was in conflict with the Act of 2012 was found to be misconceived. The statutory scheme of the Act itself permits co-owners to participate in open auctions after failure of internal auction. Section 11(2) expressly recognises such participation, thereby negating any alleged inconsistency.

Moreover, section 15 of the Act of 2012 makes the CPC applicable to proceedings under the Act where no inconsistency exists. The reliance on CPC provisions, therefore, was legally sound. The position is fortified by judicial precedent recognising the supplementary application of the CPC to special statutes unless expressly excluded.

Scope of writ jurisdiction in execution matters

Both the learned trial court and the revisional court had concurrently found against the petitioner on facts and law. The High Court, exercising constitutional jurisdiction, correctly refrained from re-evaluating factual determinations or substituting its own discretion for that of the executing court. No jurisdictional defect or misapplication of law was demonstrated to warrant interference under Article 199.

Ratio decidendi emerging from the judgment

The governing ratio is that an objector’s entitlement to invoke Order XXI Rule 90 CPC is conditioned upon compliance with the deposit requirement, the quantum of which lies within the discretion of the executing court, to be exercised primarily in light of the objector’s conduct; and that the CPC, including Order XXI Rule 72, applies to partition proceedings under the Punjab Partition of Immovable Property Act, 2012, by virtue of section 15 thereof.

Conclusion

The dismissal of the writ petition reaffirms a consistent judicial approach: execution proceedings cannot be held hostage to obstructive conduct masquerading as bona fide objection. The second proviso to Order XXI Rule 90 CPC is a substantive procedural safeguard against abuse, not a technicality to be circumvented.

Equally, the judgment clarifies that the Punjab Partition of Immovable Property Act, 2012 does not operate in isolation from the CPC. Where the special law is silent, general procedural law fills the gap. For practitioners, the decision serves as a clear reminder that writ jurisdiction will not rescue litigants from the consequences of their own conduct, nor will it dilute statutory mechanisms designed to ensure finality and fairness in execution.

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About the Author Ikyan Shah is an Advocate High Court, a professional legal practitioner, an attorney at law, and researcher with several years of experience. He regularly and actively appears before the High Court and civil courts. His practice primarily covers civil law, family law, intellectual property law, and corporate law, with a strong focus on practical, rights-oriented legal solutions. You may reach writer at +923026111222. The videos of articles are available at https://youtube.com/@ikyanshah

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