' CH. IJAZ AHMED, J.--The brief facts out of which the present appeal arises are that the appellant- Bank filed suit for recovery amounting to Rs.2,78,36,745.52 before the Banking Court on 9-7-1984.
The Banking Court passed a preliminary decree vide judgment and decree dated 7-6-1988 and subsequently final decree was passed vide judgment and decree dated 1-3-1989. The appellant Bank filed execution petition before the Banking Court on 12-5-1990. The appellant also filed application under Order 21, rule 66, C.P.C. Which was allowed by the Banking Court vide order dated 11-1-1995. The Court auctioneer was appointed. The Court auctioneer got published the proclamation of the auction Of properties No, 1006, Bungalow No,1014 and godown. The Court auctioneer also mentioned reserve price qua the aforesaid properties amounting to Rs.40,00,000, .Rs.15,00,000 and Rs.35,00,000 respectively. Respondents Nos.8 to 10 participated in the auction proceedings held by the Court auctioneer on 30-4-1995. The highest bid qua Property No,1 was Rs.25,00,000 whereas highest bid qua Property No,2 was Rs.575,000 and regarding the third property highest bid was Rs.27,00,000. The Court auctioneer rejected the bid qua the third property on the same day and did not accept the highest bid qua the other two properties and sent a reference to the Banking Court. The appellant filed C.Ms. Nos.57-B and 58-B of 1995 with the prayer that the petitioner may kindly be allowed to purchase the properties at the price so reserved in each case and the said sums be permitted to be adjusted towards the decree. The appellant also filed objections under the heading "objections on behalf of the decree-holder on the report of the Court auctioneer" with the prayer that in the interest of justice the sale of any of the auctioned properties be not confirmed in the name of the respective bidders. It is further prayed that the decree-holder may kindly be permitted to purchase the properties at the reserved price fixed by this Honourable Court.
2. The Banking Court decided aforesaid C. Ms. Nos.57-B and 58-B of 1995, alongwith C. Ms. Nos.52-B and 84-B of 1995 and reference applications sent by the Court auctioneer to the Court and rejection order of not accepting the bid qua third property vide impugned order dated 29-10-1995.
Hence this appeal.
3.
3. Learned counsel of the appellant submits that Banking Court erred in law to reject the applications' of the appellants without adverting to the mandatory provisions of C.P.C. i.e. Order 21, rule 66 read with Appendix E, Form 29, C.P.C. As the Court auctioneer did not mention power of rejection in the proclamation in terms of the application of the appellant which was filed before the Banking Court as is evident from para.3 of the application of the appellant. He further submits that Banking Court erred in law to accept the price which was not accepted by the Court auctioneer being low and inadequate whereas the Banking Court has inherent power to look into the matter by virtue of section 151, C.P.C. Read with Order 21, C.P.C. He further submits that appellant filed application for setting aside the sale, if any, before Banking Court on 24-5-1995 but the Banking Court did not decide the same as is evident from the contents of the impugned order of the Banking Court. He further submits that order of the Banking Court is not in consonance with the law laid down by the superior Courts. In support of his contentions he relied upon the following judgments:- ' National Electric Company v. Allied Bank of Pakistan 1996 CLC 192 ' Shahida Saleem v. Habib Credit and Exchange Bank 2001 CLC 126 ' Messrs S.P.R.L. Rehman Brothers v. Judge Banking Court 2000 MLD 1957 ' Messrs Dawood Flour Mills v. National Bank of Pakistan 1999 MLD 3205 ' Brig Mazhar ul Hag v. PLD 1993 Lahore 706 ' Aziz Fatima v. Rehana Chughtai 2000 CLC 863
4. Learned counsel of respondent No,1 submits that appeal is time-barred. He highlighted the facts in chronological order to support his contention which are that the impugned order was passed by the Banking Court on 12-10-1995; application for securing certified copy of the impugned order was filed on 22-10-1995; the same was prepared on 29-10-1995; according to him the last date for filing the appeal was 18-11-1995 whereas the appellant filed ' the appeal before this Court on 6-12-1995.
5. Learned counsel of respondent No,8 submits that there is no requirement under Order 21, rule 66 to mention in the proclamation that Court auctioneer has a right to reject the bid and form 29 prescribes guidelines for proclamation, which is directory in nature. He further submits that appellant has not filed any application under Order 21, rules 59, 89 and 90, C.P.C., therefore, impugned order is valid. He further submits that C.Ms. Nos.57-B and 58-B of 1995 were rightly rejected by the Banking Court keeping in view the prayer clause of the appellant in the said applications which is in consonance with Order 21, rule 78, C.P.C. He further submits that property in question was sold at low price through auction which is not sufficient ground that the sale be set aside keeping in view the inadequacy of price of the property. In support of his contention he relied upon United Bank Limited v. Asma Zafar-ul-Hassan 1980 CLC 565. He further submits that appellant has not filed any application before the Banking Court on 25-5-1995 as is evident from the contents of the impugned order as the appellant's counsel did not press this application before the Banking Court. He further submits that representative of the Bank did not raise any objection qua the price of the properties in question at the time of holding auction by the Court auctioneer.
Therefore, appellant is estopped to raise this plea before the Banking Court as well as before this Court on the well-known principle of approbate and reprobate.
6. Learned counsel of respondent No,9 submits that appellant failed to point out any malice against the Court auctioneer. Therefore, impugned order is valid and in accordance with law laid down by the superior Courts which is in accordance with Order 21, rule 84 and Rule 92, C.P.C. In support of his contention he relied upon the following judgments:- ' Alliance Bank of Shimla v. Miss. I. Lowrie AIR 1926 Lahore 588.
' Rajbans Sahay v. Askaram Baid AIR 1922 Patna 550. United Bank Ltd. v. A. Z. Hashmi 2000 CLC 608.
Janak Raj v. Gurdial Singh AIR 1967 SC 608. Hukumchand v. Bansilal AIR 1968 SC 86.
' He further submits that vested right has accrued to the auction-purchasers, therefore, this Court should take into consideration principle of equity at the time of deciding this appeal. In support of his contention he relied upon Muhammad Din v. Illahi Noor PLD 1975 Lahore.
1393.
7.
7. Learned counsel of respondent No,10 submits that judgments cited by the learned counsel of the appellant are distinguished on facts and law as those judgments are relatable to the judgment- debtors whereas the appellant is a decree-holder. He further submits that appellant is not allowed to take the benefit of its own misdeeds as the appellant did not withdraw the auction price till date whereas the purchasers deposited the auction price well in time and which is utilized by the appellant for the last 10 years. Therefore, equity demands that the appeal be dismissed. In support of his contention he relied upon unreported judgment of Honourable Supreme Court in C.P.L.A. No, 965-L of 2000 dated 12-1-2001.
8. Learned counsel of the appellant in rebuttal reiterated his earlier contentions and stated that appellant has not withdrawn the amount till date.
9. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
10. It is an admitted fact that appellant has filed application before the Banking Court on 25-5-1995 upon which stamp of the office is affixed and the impugned order was passed by the Banking Court on 29-10-1995. It is pertinent to mention here that the Banking Court did not decide the application of the appellant as is evident from the contents of the impugned order. It is the duty and obligation of the Court to decide the controversy between the parties after applying its independent mind. This fact alone is sufficient that Banking Court did not decide the controversy between the parties after proper application of mind. In arriving to this conclusion we are fortified by law laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan PLO 1970 SC 173. After addition of section 24-A General Clauses Act it is the duty and obligation of even public functionaries to decide the controversy between the parties after application of mind as per law laid down by the Honourable Supreme Court in the following judgments: -- ' Messrs Airport Support Services v. Airport Manager 1998 SCMR 2268 ' Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419.
' In view of what has been discussed above the appeal is accepted and the impugned order is set aside. Meaning thereby the application filed by the appellant before the Banking Court on 25-5- 1995 shall be deemed to be pending adjudication. The parties are directed to appear before the Banking Court, Faisalabad on 25-2-2004 and the Banking Court shall decide the same afresh after applying its independent mind in terms of the aforesaid direction within four months. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.