IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
 
MR. JUSTICE MUSHIR ALAM 
 
MR. JUSTICE DOST MUHAMMAD KHAN  
 
Civil Appeal No.1129 of 2013 
Against order dated 04.4.2012 passed 
by Lahore High Court, Lahore in W.P. 
No.3974 of 2005 
 
Major ® Pervez Iqbal 
 
 
 
 
 
Appellant(s) 
Versus 
Muhammad Akram Almas, etc. 
 
 
 
Respondent(s) 
 
For the Appellant(s): 
 
Mian Ashaq Hussain, ASC 
 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
For Respondent No.1:  
Mian Asrar ul Haq, Sr. ASC 
 
 
 
 
 
  
For Respondent No.3:  
Tehseen Sadiq, Addl. Commissioner (FBR) 
 
For Respondent No.5:  
Nemo 
 
Date of Hearing:  
 
10.01.2017 
 
 
 
 
 
 
JUDGMENT   
 
 
 
Mushir Alam, J-. Appellant has impugned order  dated 
04.4.2012 whereby the learned Judge in Chambers of the Lahore High 
Court, Lahore dismissed the CMA No.2565 of 2009, under section 
12(2) of the CPC, challenging the judgment of the very Court dated 
25.4.2007, whereby Writ Petition No.3974 of 2005, filed by one 
Muhammad Akram Almas, Respondent No.1 herein, seeking writ of 
mandamus, against the Income Tax Authorities to issue sale certificate 
and possession of the property of tax defaulter, purchased by him in 
open auction and, further direction to the Military Estate Officer (MEO) 
and others to affect mutation of said property in his  favour, which was 
allowed.   
2. 
 
Leave in the matter was granted vide order dated 
5.9.2013, which reads as follow:- 
 
“Submits that respondent No.1 filed a constitution petition seeking a 
direction that the Income Tax Department should issue a sale 
certificate in his favour pursuant to the auction of petitioner’s 
property measuring 7 Kanals at a paltry amount of Rs.20,54,047/- 
Civil Appeal No.1129 of 2013 
 
2
not withstanding the fact that the sale in auction had abated in view 
of Rule 150 read with Rule 111 of the Income Tax Rules, 1982; that 
respondent himself gave incorrect address of the petitioner in the 
writ petition filed by him, on account of which petitioner was neither 
served nor heard by the learned High Court while passing the 
judgment dated 25.4.2007. 
 
2. Having heard petitioner’s learned counsel at some length, leave 
is granted inter alia to consider the issue raised.”  
3. 
 
In order to appreciate the controversy raised in the instant 
appeal, it would be necessary to recapitulate facts forming matrix of 
controversy.  
4. 
 
Appellant, adjudged tax defaulter, after service of a show 
cause notices as required under the law, he was arrested on 
22.8.2000; he was released on commitment to clear the dues in 
installments. However, on his failure to adhere to such payment 
schedule, he was again arrested and produced before the Tax 
Recovery Officer (TRO) on 23.12.2000. The appellant in order to earn 
his release, per rules disclosed the property subject matter of instant 
proceedings, gave consent in his own writing for the attachment and 
auction of the property, for the recovery of tax dues, as a result 
thereof, subject property was attached and put to auction after 
fulfilling all the requirements of Rules 141 & 142 of IT Rule, 1982. 
Auction succeeded second time and the respondent No.1 was declared 
successful on 31.5.2001, entire amount of Rs.64,25,000/- was 
deposited within time. Auction purchaser also paid additional amount 
of Rs.1,92,750/- as gain tax on the sale of this property, which 
otherwise was payable by the appellant. 
5. 
 
From the record it seems that Military Estate Officer 
(MEO), requested for the deferment of the sale on the ground, inter 
alia; that the property has not been mutated in the name of the 
appellant. The matter shuttled between the TRO, MEO and Station 
Commander Head Quarter, Sialkot Cantt without any resolution. From 
the record it appears that the appellant succeeded in obtaining a 
decree dated 21.12.1994 in a Civil Suit No.761/1993, for specific 
performance in respect of subject property held on old grant by the 
previous owners. In execution proceedings, conveyance deed dated 
2.3.2000 was executed in his favour, however, for obvious reasons he 
Civil Appeal No.1129 of 2013 
 
3
did not followed up his application for the mutation of subject property 
in his favour from the MEO, apparently, for this reason his name was 
not recorded in the General Land Register (GLR) maintained by the 
MEO, which provided a cause to the MEO, to make request to  defer 
the auction.  
6. 
 
Respondent No.1, when failed to obtain the sale certificate 
from TRO, needed for effecting mutation of the property in his name, 
as a last resort filed Writ Petition No.3974 of 2005, which as noted 
above was allowed on 25.4.2007 and the Income Tax Authorities were 
directed to issue sale certificate, which was issued in favour of the 
Respondent No.1, on 2.5.2007. MEO was also directed to consider the 
application for mutation of the auction purchaser in accordance with 
law. MEO unsuccessfully challenged the order of the High Court, before 
this Court through Civil Appeal No.529-L of 2009, which was dismissed 
vide order dated 20.7.2011; however, right of the appellant to pursue 
his Application under section 12(2) CPC; (filed on 01.6.2009) then 
pending before the learned Lahore High Court was preserved. The 
application, was ultimately heard and dismissed, vide impugned order, 
essentially on the ground that the appellant had neither challenged 
nor, availed the remedy against the auction in terms of Rule 127 of 
Income Tax Rules, 2002 (contemporary Rule 106 of IT Rules 1982).  
7. 
 
Mian Ashiq Hussain, learned ASC appearing for the 
appellant, vehemently contended that on the application made by the 
MEO/Station Commander, the TRO had deferred the sale vide order 
dated 30.6.2001 available at page No.86 of the main paper book, 
which according to learned ASC amounted to setting aside of the 
auction sale in terms of Rules 111, 141 and 150 of IT Rules, 1982 
requiring fresh proclamation, which was not issued. Therefore, auction 
if any, is of no consequences. To a specific query of the Court, learned 
counsel candidly conceded that the appellant did not challenge the 
auction sale held on 31.5.2001. He however, maintained that under 
the law auction sale could be challenged by any person and in instant 
case it was challenged by the MEO, in accordance with IT Rules, 1982. 
It was next urged that, impugned judgment of the High Court is a 
result of fraud and misrepresentation, correct address of the appellant 
was not disclosed by the Respondent No.1, appellant has not been 
heard, impugned judgment is liable to be setaside. 
Civil Appeal No.1129 of 2013 
 
4
8. 
 
Mian Asrar ul Haq, learned Senior ASC appearing for the 
respondent No.1 vehemently opposed the appeal. According to him 
auction was held with the consent of appellant. Auction, succeed in 
second attempt on 31.5.2001. Respondent No.1/Auction purchaser 
had deposited the entire sale consideration within time. It was urged 
that since the auction purchaser was denied the sale certificate on the 
intervention of MEO, on wholly unjustified grounds, who otherwise had 
no interest in the property, therefore he was compelled to file writ 
petition, which was allowed. It was argued that appellant consented to 
the attachment and auction of subject property. According to him, Sale 
Certificate was issued on 2.5.2007 on the directions of High Court; 
appellant had a right to challenge the auction/sale within 30 days from 
the date thereof under the IT Rules 1982, which he failed. He cannot 
be allowed to challenge the auction, through ‘collateral proceedings’ 
under section 12 (2) CPC filed on 1.6.2009 after more than 8 years.  
9. 
 
Mr. 
Tehseen 
Sadiq, 
Additional 
Commissioner 
(FBR) 
representing Tax Authorities, also supported the impugned order. 
According to him, attachment and auction of the appellant’s property 
was carried out strictly in accordance with Income Tax Act, 1979 and 
IT Rules, 1982. The appellant was given several opportunities to clear 
his dues, which he failed. Appellant volunteered the attachment and 
auction, which was held twice, to his knowledge, which he never 
challenged before the TRO and or the hierarchy provided under the IT 
Rules 1982.     
10. 
 
We have heard the arguments and perused the record. 
Admittedly appellant was adjudged a tax defaulter, Certificate to such 
an effect in terms of sub section (1) of section 93 of the Income Tax 
Ordinance, 1979 read with Rule 100 of the IT Rules 1982 was issued 
by the Income Tax Officer to the TRO, to effect the recovery, by 
attachment, arrest and sale of the property of the defaulter/Appellant.  
There is also no dispute as to the service of the show cause notice 
under section 93 (1) of Income Tax Act, 1979 read with Rule 162(1) of 
the Income Tax Rules, 1982. It is not denied by the appellant that he 
was arrested and he agreed to pay dues in installments, which 
commitment he could not adhered. It is a matter of record that he was 
again arrested and produced before the TRO on 23.12.2000 and, in 
order to earn his release, the appellant disclosed his whole of the 
Civil Appeal No.1129 of 2013 
 
5
property and placed the same at the disposal of TRO for the recovery 
of tax dues in terms of Rule 167 (1) of IT Rules 1982, which reads as 
follows:- 
“167. Release--(1) The Tax Recovery Officer may order 
the release of a defaulter who has been arrested in 
execution of a Certificate upon being satisfied that he 
has disclosed the whole of his property and has placed it 
at the disposal of the Tax Recovery Officer and that he 
has not committed any act in bad faith.”  
 
The appellant in terms of above rule also authorised the TRO to 
auction the said property and recover the amount due, endorsement in 
his writing reads as under:- 
�� � � � م� �اذ ے�"  ��رذ � �ا� ۔� � دا�� ���
� � ٹ�� ل� ت� �ا٧٣  � م� ے� � � ٹ��
�ر�٢٠٠٠۔٠٣۔٠٢� �� ى�ر �  �ر � � �� � ى�ر � �
Attach�ر� ��� � � ��ا� سا ۔ں�
 سا � � ىر�ر �ا � �
 �Auction �
� سا ۔�� � ضا�ا �� � � ے   Attachment
 
 �ا �
"۔� �د� �د جآ د� � � � ��  
11.  
Consequently, his property was attached second time, in 
terms of rule 137 of the IT Rules 1982. It is a matter of record that, an 
attempt to obtain stay from Civil Court failed and so also Lahore High 
Court in Civil Revision No.1261 of 2001 declined any indulgence to 
stay the auction vide order dated 7.06.2001. Subject property was 
auctioned on 31.5.2001; Respondent No.1 was declared the successful 
bidder. Appellant was fully aware of the auction, chose not to avail the 
remedy under Rule 111, 149 and or Rule 150 of IT Rules 1982 and did 
not challenged the auction till before 1.6.2009, that too in a collateral 
proceedings under section 12 (2) CPC.  
12. 
 
In terms of scheme of IT Rules 1982, where no application 
is made for setting aside the sale of the attached property under Rule 
149 or 150 of the Rules ibid; or where any such application is made 
and is dismissed, the TRO, in terms of Rule 152 ibid is obliged, on 
payment of entire bid amount, to confirms the sale, which than 
becomes absolute and consequently TRO is further obligated in terms 
of Rule 154 of the IT Rules 1982 to issue the Sale Certificate.  
 
Civil Appeal No.1129 of 2013 
 
6
13. 
 
The Respondent No.1 being declared successful bidder 
having paid the entire bid amount in the sum of Rs.64,25,000/- on 
14.6.2001 and further sum of Rs.1,92,750 as gain tax due and 
payable by the appellant. Respondent was denied sale certificate and  
became victim of brawl between the TRO and MEO, filed W.P No.3974 
of 2005 dated 11.3.2005, before the Lahore High Court seeking writ of 
mandamus against the TOR and MEO, to perform their legal duties, 
which Writ Petition was allowed on 25.4.2007, consequently TRO 
issued Sale Certificate to the Respondent No.1 on  2.5.2007. 
14. 
 
It may be observed that sub-section (4) of section 93 of 
the Ordinance, 1979 bestows on the TRO similar power as are vested 
in a Civil Court for the recovery of amount under a decree. Provisions 
contained in Chapter IX (Rules 99 to 190) of the IT Rules, 1982 are 
complete Code akin to provisions of Order 21 rule 82 to rule 104 CPC, 
whereby the tax defaulter and or any person having any right or 
interest in the property attached and or sold pursuant to attachment 
order for the recovery of arrears of tax, may seek stoppage of sale, 
(Rule 111 ibid) challenge such auction/sale, before the TRO, (as 
provided for under Rule 149 and 150 respectively of Rules ibid). 
Against any order of sale hierarchy of appeal under Rule 173, which is 
subjected to Revision under Rule 174 and Review under Rule 175 ibid; 
is provided, thus elaborate procedure for attachment and sale of 
immovable property of the defaulter and host of remedies pre and post 
auction/sale are provided under the Income Tax Rules, 1982. It is 
settled position in law that where special law provides elaborate 
mechanism and procedure to challenge certain action under the 
scheme of special law, recourse to general law and or challenge to 
such action, that too through collateral proceedings are not approved. 
Neither the Appellant nor any other respondents herein filed any 
application against the auction of the subject property within the 
contemplation of IT Rule 1982. In instant case rule 111 ibid, which 
may justify stoppage of sale, on satisfactory proof of payment of tax 
dues, before the hammer is struck down in favour of the highest 
bidder, was not availed by the appellant, thus it cannot be pressed into 
service.  
15. 
 
Arguments of learned ASC for the appellant, that the 
objections filed by the MEO could always be treated as an application 
Civil Appeal No.1129 of 2013 
 
7
under Rule 149 or Rule 150 ibid; are flawed for the simple reasons 
that sale under referred rules could only be annulled on meeting twin 
conditions set down therein; with a rider that such challenge is made 
within 30 days from the date of sale. First condition is the deposit of 
the amount mentioned in the proclamation of sale with 8% interest 
and second is to pay a sum equal to 10% of the purchase money to 
the purchaser, admittedly such conditions as noted herein were neither 
met by the MEO nor by the appellant, therefore, the objections of 
MEO, which even otherwise, were on altogether different premise, 
could not be treated as challenge to auction sale under the referred 
rules.  The appellant cannot question sale on the ground of irregularity 
in service in terms of Rule 150 ibid; when he himself had authorised 
the attachment and sale of his property as noted above. It may be 
observed that any error or irregularity in or in publishing or conduct of 
sale of immoveable property in terms of Rule 134 does not vitiate sale. 
Even otherwise, all such grounds, if at all available could have been 
raised before the form and hierarchy provided under the IT Rules 1982 
and not in collateral proceedings under section 12(2) CPC. 
16. 
 
As noted above, elaborate provisions contained in Chapter 
IX of the IT Rules, 1982 are self contained code, providing elaborate 
procedure for the recovery of tax arrears, attachment, arrest and sale 
of property of defaulter and challenge to sale by the defaulter and or 
any other person having interest in the attached and sold property. 
Admittedly, the appellant who was adjudged tax defaulter in contested 
legal proceedings up to the High Court.  Appellant failed to challenge 
the sale before a competent forum in the manner provided as 
discussed above, cannot be allowed to challenge the sale, in a 
collateral proceedings  arising out of a writ of mandamus against the 
Income Tax Authorities and MEO for the issuance of Sale Certificate 
and effecting mutation in his name.  
17. 
 
In this view of the matter, finding no merits in this appeal, 
it is accordingly dismissed. 
  
 
 
 
 
 
 
 
 
JUDGE 
 
JUDGE 
ISLAMABAD, THE 
10th January, 2017 
arshed/*   
 
Approved for Reporting 
