' MIAN SAQIB NISAR, J.---In execution of a decree, passed in favour of respondent-Bank and against the respondent No,1 /judgment-debtor by the Banking Court, the property in question was put to auction and had been 'purchased by the appellant on 15-11-2001 for an amount of Rs,2,36,000.
Before the sale could be confirmed by the Court, the respondent/judgment-debtor filed objection to the sale under the provisions of Order XXI, rules 58 and 90 of the Civil Procedure Code. The learned Court accepted the objections, set aside the sale and directed the respondent/judgment- debtor to deposit the auction price as also to pay 5 per cent. Over and above for compensating the appellant, hence this appeal.
2. Respondent No,2 was finally served through publication in the newspaper "Nawa-i-Waqt" who did not appear and thus has been proceeded against ex parte. Ex parte arguments have been heard.
3. According to the impugned order, which reads as below: "In the circumstances of the case, I would like to -accept the petition of judgment-debtor No,2, for the reasons that he had mortgaged the property with the decree-holder and has preferential right to retain the same provided he undertook to pay the purchaser a sum equal to 5% of the purchased money besides, the auction money to him under Order XXI, rule 89, Civil Procedure Code. The auction-purchaser has not appeared to submit reply to the offer of the judgment debtor. The auction in respect of this property is, therefore, cancelled and judgment-debtor No,2, is directed to deposit the auction money (Rs,2,36,000) as well as its 5% before 27-2-2002, in the Court and furnish the proof on the same day."
' By relying upon the aforesaid paragraph of the impugned order, it is stated that the respondent/ judgment-debtor has not deposited the amount in terms of the order, thus in such situation, his objection petition should be deemed to have been dismissed. However, learned Court has not provided the consequences for the failure to make the deposit.
' We have heard learned counsel for the appellant and find substance in this argument. Obviously, if the respondent/judgment-debtor in terms of the impugned order has not made the deposit, within the period prescribed in the order or has not sought the extension in terms of the order, his objection petition shall be deemed to have been dismissed. Because, despite the clear order, from the Court to the respondent to make the deposit and as told by appellant's counsel, he has failed to comply with, it cannot be presumed that his application shall continue to be pending.
' Therefore, the appeal is disposed of with the observation that if the respondent/judgment debtor has not deposited the amount in terms of the impugned order, his objection petition shall be deemed as dismissed, thus the appellants are entitled to confirmation of the sale. However, if the amount has been paid, the learned counsel accepts the order and this appeal would be deemed as dismissed on account of withdrawal.