ORDER The appellant-bank, on 20.7.1998, filed an application against the predecessor of respondent No.1, under the provisions of Section 39 of the I.D.B.P Ordinance, 1961, for the recovery of an amount of Rs.4,91,947.02. The application was ex parte allowed on 07.12.1995, as prayed for. in the execution of the decree, the property mentioned in the application, mortgaged by the said predecessor, was put to auction and was purchased by respondent No.2 on 07.03.196, for a price of Rs.0.825 Million. Before the sale was confirmed, the respondent No.1, being the successor of the judgment-debtor, filed an application under Order IX Rule 13 read with Section 12(2) CPC for the setting aside of the decree, which was disallowed by the learned Additional District Judge, but when challenged in FAO. No.177 of 1997, which was accepted by this Court on 26.01.1999, and the following order was passed:-- "In view of what has been stated above, I accept this appeal, set aside the impugned orders dated 27.3.1997, 31.5.1997 and also dated 4.4.1997 passed by the learned AddI. District Judge for confirmation of the sale, direct the appellant to deposit the decretal amount alongwith 5% of he purchase money under Order XXI Rule 89 CPC before 15.2.1999 in the learned executing Court failing which this appeal shall stand dismissed."
In compliance of the above order, respondent No.1 deposited the decretal amount of Rs.4,91,947.02 alongwith 5% i.e. Rs.41,250/-, totaling Rs.5,33,197/-, with the Executing Court on 15.02.1999. Be that as it may, the order of this Court dated 26.01.1999 was challenged by the appellant as well as the auction-purchaser, before the Honourable Supreme Court, through appeal and petition for leave to appeal, which were dismissed on 14.11.2003. Thereafter, respondent No.1 moved an application under Section 144 CPC for the restoration of the property, which had been sold to the auction- purchaser, whereas the auction-purchaser moved an application under Section 145 CPC for the return/refund of the amount paid plus 5%. These applications have been allowed through the impugned order dated 23.06.2004.
2. Learned counsel for the appellant contends that according to the very clear order of this Court, respondent No.1/judgment-debtor was supposed to make the deposit before 15.02.1999. Whereas the needful was done on 15.02.1999 The learned counsel for the respondent No.1 explained that 14.02.1999 was the holiday as has been decided by the learned Court below, therefore, the deposit could validly be made on the next working day.
Obviously, the plea of the learned counsel for respondent No.1 is correct and, therefore, the contention of the appellant side has no force.
3. The argument that according to the prayer part (b) of the application under Section 39 of the IDBP Ordinance, 1961, the appellant had sought the decree against the respondent for future make- up, interest pendente lite and the mark-up till the realization of the amount and this was allowed and at the time when the order was passed by this Court, an amount of Rs. 1.559 Million was outstanding against the judgment-debtor, and it is this amount which was the decretal amount, which was directed to be deposited by this Court, and as the judgment debtor had not deposited the whole of this amount resultantly, it is a non-compliance of the order of this Court.
I am afraid that the above contention has no force. From the purport of the judgment dated 26.01.1999 passed by this Court, it is very clear that while passing the judgment, this Court was very much conscious that the decretal amount is Rs.4,91,947/-, as has been specifically mentioned in paragraph No.2 of the judgment and therefore, notwithstanding the prayer of the appellant or the ex parte decree in favour of the appellant, it is this amount which was meant to be deposited.
Resultant, the contention has no force and is hereby repelled.
4. I have been apprised by the auction-purchaser that but of the auction price which he paid, the amount of Rs.8,10,000/- is lying with the bank, whereas 5% of the decretal amount i.e. Rs.41,250/- has been deposited by respondent No.1, which is with the executing court. Let respondent No.2/actioner-purchaser withdraw the amount of Rs.5,33,197/- from the executing Court; out of the remaining amount, which comes to Rs.3,33,053/-, the decree-holder bank will pay Rs.3,18,053/- to the auction- purchaser and the further amount of Rs. 15,000/- will be paid by the judgment- debtor/respondent No.1 to the auction- purchaser, within 15 days from today, as the amount of the expenses/fee paid to the court-auctioneer, which the judgment-debtor is bound to incur in the circumstances of the case, in case, the amount is not paid by the respondent No.1, an amount of Rs.1000/- per day shall be recovered from her as the liquidated damages. in the light of above, this appeal has no merits and is hereby dismissed.