' MUHAMMAD NAWAZ ABBASI, J.---These two connected appeals arising out of a consolidated judgment dated 12-9-2001 passed by a learned single Judge of the Lahore High Court, Lahore, in three different execution petitions relating to the property bearing No,129/5, known as MASCO Enterprises, measuring 4 Kanals and 2 Marlas, situated in Industrial Estate, Kot Lakhpat, Lahore are proposed to be disposed of through this single judgment. Leave was granted in these appeals, vide order dated 5-6-2002 as under:- "The land measuring 4 Kanals and 2 Marlas situated in Industrial Estate, Kot-Lakhpat, Lahore, known as Masco Enterprise, subject-matter of the execution of decree passed by the Banking Court, was put to auction in the execution petition filed by Pakistan Industrial Leasing Corporation Limited. In the auction held on 25-1-1996, the present petitioner having offered the highest bid to the tune of Rs,16 lac was ready to pay the auction money but the Court auctioneer in his report dated 27-11- 1996 submitted that the bid was below the decretal amount. The Banking Tribunal without setting aside the auction issued fresh schedule of auction to be held on 1-2-1997 which could not be materialized. Two separate execution petitions were filed by the First Leasing Corporation Limited and Habib Bank Limited for execution of decrees passed by the Banking Court in their favour against the same property and while these execution petitions were pending, the Banking Tribunals were abolished and the cases pending before these Tribunals were transferred to the Banking Courts. The petitioner moved an application to the Banking Court seized of the matter for acceptance of bid offered by him and Banking Court, vide order dated 30-10-1997, having approved the bid offered by the petitioner confirmed the sale in his favour. This order of confirmation of sale was challenged by the respondents through F.A.O. No,272 of 1997 under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 before the High Court but the same was dismissed by a Division Bench of Lahore High Court vide judgment dated 20-10-1998 being not maintainable. The respondents thereafter invoked the Constitutional jurisdiction of the High Court by filing the separate writ petitions which were heard by a learned single Judge of the Lahore High Court, Lahore and were allowed vide judgment under challenge.
' Learned counsel for the petitioner has contended that without setting aside the auction held on 25-11-1996 in which the petitioner offered the highest bid of Rs,16 lac, the issuance of fresh schedule by the Banking Tribunal for fresh auction, was not legal and that notwithstanding the pendency of two other execution petitions, the confirmation of sale in favour of the petitioner on the basis of auction held on 25-1-1996 by the Banking Court was not questionable.
' Learned counsel for the respondents, on the other hand, contended that the issuance of schedule for fresh action would amount to setting aside the earlier auction and therefore, the Banking Court was not competent to confirm the sale in favour of the petitioner The petitioner has sought leave to appeal against the judgment passed by the High Court through these petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, on the questions whether without setting aside the earlier auction, the Banking Tribunal could competently issue fresh schedule of auction and whether the confirmation of sale in favour of the petitioner, as a result of auction held on 25-1-1996 was legal and valid and the High Court in exercise of its Constitutional jurisdiction was justified to set aside the sale and interfere in the matter, need determination. We accordingly grant leave to appeal in the above petitions."
2. The perusal of record shows that in consequence to the passing of an ex parte decree in a suit filed by Pakistan Industrial Leasing Corporation against the Managing Partner of MASCO Enterprises and others, for recovery of a sum of Rs,24,48,032, an execution petition bearing No,141-E of 1996, was filed by the decree holder, in which as per direction of the Court, auction of the property was held on 25-11-1996. The Court auctioneer having found the highest bid of Rs,16 lac offered by the appellant, below the decretal amount, returned the token money of Rs,50,000 deposited by the appellant with the observation that the sale of property at such price without the approval of the Court, would not be possible. The Court auctioneer, however, in the report submitted to the Court, pointed out that according to the information collected by him, the prevailing market price of the land in the area was ranging between Rs,3 lac to 5 lac per Kanal. In pursuance of the above report, the Banking Tribunal-IV, Lahore, vide order dated 5-1-1997, directed for holding fresh auction of the property on 1-2-1997. However, on an application moved by decree holder for the approval of the bid of Rs,16 lac offered by the present appellant,, the Tribunal permitted the appellant to deposit the bid money whereupon the appellant by depositing an amount of rupees four lac in cash, issued cheque for the remaining amount of 12 lac which was dishonoured. In the meanwhile, Habib Bank Limited filed a similar execution petition for execution of a decree against the same property and both the execution petitions were clubbed together to be heard by Banking Court No,II Lahore and on the establishment of Banking Courts under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the Banking Court, vide order dated 16-7-1997, directed the Court auctioneer for proclamation of sale by fixing the fresh schedule of auction whereupon the appellant moved an application seeking permission for deposit of remaining amount of Rs,12 lac in cash and the Judge, Banking Court, vide order dated 5-9-1997, permitted him to deposit the amount in question at his own responsibility. In consequence to the above order, the appellant having deposited the balance amount of Rs,12 lac, sought confirmation of the sale and the Banking Court vide order dated 30-10-1997, confirmed the sale and also issued the sale certificate on 3-12- 1997. It is claimed by the appellant that on confirmation of sale, he was given possession of the plot and he had also raised some construction. The Banking Court before confirmation of sale in favour of appellant, directed auction of the property in question in another execution petition filed by First Leasing Corporation, a third decree holder. The auction in this petition was held on 2-10-1997 and Zia ur Rehman, respondent No,2 offered highest bid of Rs,17 lac and he having been declared, successful bidder, filed a petition before the Banking Court for confirmation of sale in his favour by recalling the order dated 30-10-1997 but subsequently having withdrawn the above petition from Banking Court, filed separate appeals against the orders passed by the Banking Court in the High Court which were dismissed being not maintainable and consequently, he invoked the Constitutional jurisdiction of the High Court in the matter.
3. Learned counsel for the appellant has contended that in pursuance of the confirmation of sale, the appellant would be deemed to have purchased the property from the date of auction in terms of section 65, C.P.0 and after the confirmation of sale, it could not be recalled, except in the manner provided in rule 89 of Order XXI, C.P.0 and such remedy could only be availed within 30 days from the date of sale as provided under Article 166 of the Limitation Act, 1908. Learned counsel submitted that in a case in which sale of immovable property becomes absolute, the Court is bound to grant sale certificate and upon issue of the sale certificate, the title of the property would be deemed to be vested in the purchaser from the date of sale and not from the date of confirmation of sale. In nutshell, learned counsel argued that possession of the property was delivered to the petitioner and he also raised some construction on the plot, therefore, in these circumstances there was no justification for the High Court to declare the sale illegal in its Constitutional jurisdiction. The learned counsel argued that the writ petition was not maintainable as the sale of plot in the subsequent auction, having not been confirmed, would not create any right in favour of the auction purchaser to invoke the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in the matter. In support of the arguments, learned counsel has placed reliance on United Bank Ltd. v. Asma Zafarul Hassan (1980 CLC 565); Gurswa my v. State (AIR 1954 SC 592); Zahid Hussain v. Dharmumal (1971 SCMR 110); Moin ud Din v. Negotiating Committee (PLD 1987 SC (AJK) 99); in re: M. Aslam Motiwala (1998 MLD 1254); Government of Pakistan v.
Muhammad Yasin (PLD 1997 SC 401); Muhammad Ismail v. Fazal Zada (PLD 1996 SC 246); Conforce Ltd. v. Rafique Industries Ltd (PLD 1989 SC 136); H.T.M.Ltd. v. Allied Bank of Pakistan (PLD 1987 SC 512); Jamila Begum v.Abdullah Jan (PLD 1988 SC 409); Mazhar ul Haq v. Muslim Commercial Bank Ltd.
(PLD 1993 Lahore 706); Muhammad Younis Khan v. Government of NWFP; (1993 SCMR 218); Collector of Customs v. S.M. Ahmad & Co. (1999 SCMR 138); Government of Punjab v. Hudabia Textile Mills (2001 SCMR 209); National Bank of Pakistan v. Nasir Industries (1982 388); Nanhelal v. Umrao Singh (AIR 1931 PC 33 Janaka Raj v. Gurdial Singh (1967 2-SCR 77-1).
4. Learned counsel for Ziaur Rehman, respondent No,2 in the present appeals, on the other hand, while taking us through the orders passed by the Banking Tribunal/Court on different dates and the report submitted by the auction purchaser, contended that the auction in which appellant participated, would be deemed to have been set aside by the Banking Court on issue of publication of fresh schedule for re-auction of the property and in consequence thereto, the fresh auction was held on 2-10-1997 in which respondent was declared successful bidder but the Banking Court instead of confirming the sale in his favour, proceeded to confirm the sale in the earlier auction vide order dated 30-10-1997 in an illegal manner.
5. The pivotal question requiring determination is as to whether. Court in its discretion can enlarge the time for payment of sale price beyond the period prescribed for deposit of sale price provided under Order XXI, Rules 84 and 85, C.P.C. The purchaser is bound to deposit twenty five percent of sale price immediately on acceptance of offer of sale under Rule 84 and the remaining amount within fifteen days as provided under Rule 85 of Order XXI, C.P.C. In case of failure of purchaser to deposit of the sale price in full in terms of the above rules, the sale becomes invalid and the Court is under obligation to re-sell the property forthwith. In the present case, the sale was not approved in favour of successful bidder, therefore, no deposit was made in terms of rule 84 ibid and subsequently the appellant was directed to deposit the entire amount by, a specified date but he instead of cash deposit issued cheque which was also dishonoured and failed to deposit the sale price, B as a result of which he lost the right of purchase. The Court in such circumstances, could not justifiably in exercise of its discretion, condone the default and permit the appellant to deposit the sale price. The provision of Order XXI, rule 85, C.P.0 relating to the payment of sale price is mandatory and the Court in the normal circumstances, is not supposed to extend the time for deposit of the sale price beyond the time provided under the law and on the failure of auction purchaser to deposit the entire sale price within the prescribed time or within the time allowed by the Court, would render the sale invalid and Court has no option except to re-sell the property as in consequence to the non-deposit of sale price by the auction purchaser within the time given to him the sale would become invalid. There can be no departure to the legal position that in the normal circumstances, after the confirmation of sale, it is not set aside but if the sale itself has become invalid, its confirmation would also be invalid.
6. This is settled proposition of law that the title of the purchaser is deemed to commence from the date of auction in case sale became absolute but as observed earlier, the non completion of the term of deposit of sale price within the specified, time, would make the sale invalid and consequently, notwithstanding the subsequent confirmation of sale, it would not be considered a sale in terms of section 65, C.P.C. The procedure for execution of the decree passed by the Banking Court is provided in section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and for the sale of the property in execution petition, the Court has to follow the procedure provided in Order XXI, Rules 82 to 94, C.P.C. But in the present case, the Banking Court proceeded in the matter in complete departure to the procedure of law. The bid in an auction is only an offer and without the confirmation of sale, it does not create any right in the property in favour of the successful bidder, therefore, the confirmation of sale cannot be claimed as of right. In the present case, it would be seen that the Banking Court at the first instance, without approval of the sale in auction in which appellant participated, issued schedule for re-auction of the property and at the same time, directed for sale of property by way of auction in another execution petition in which respondent No,2 offered the highest bid and then without confirmation of sale in the second auction, confirmed the sale in favour of highest bidder in the first auction. We having examined the matter, find that the Banking Court failed to follow the procedure provided in law for the execution of the decree and also did not exercise the jurisdiction in the proper manner. The sale in the first auction would be deemed to become invalid on failure of the auction purchaser to deposit the sale price within the time given to him, therefore, the subsequent permission for deposit and confirmation of sale without setting aside the sale in the second auction, would be of no legal consequence. We having heard the learned counsel for the parties and perused the record with their assistance and also keeping in view the illegalities and irregularities committed by the Banking Court in the matter, would take no exception to the judgment of D the High Court but in the given circumstances, hold that both the auctions were violative of law and Banking Court was under legal obligation to re-sell the property as per requirement of law.
7. For the foregoing reasons, we with the above modification, uphold the judgment of High Court and direct that Banking Court after consolidating all the three execution petitions, shall hold fresh auction of the property for satisfaction of the decrees, in accordance with law. These appeals are partly allowed in the above terms. There shall be no order as to costs.