' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal is directed against the order dated 17-11-2003 passed by the learned Single Judge of this Court, in Execution Application No,188 of 2001.
2. For the sake of convenience the entire order sheet dated 17th November, 2003 is reproduced below:--
(1) For hearing of C.M.A. No,96 of 2003.
(2) For hearing of C.M.A. No,3098 of 2002.
(3) For hearing of C.M.A. No,3212 of 2002.
(4) For orders on Auction Report. " 17 November, 2003 Miss Ashhad, Advocate for Mr. Zahid Jamil, Advocate for the Plaintiff.
Mr. Muhammad Zaki Ahmed, Advocate ' Mr. Izhar Muhammad, Advocate for CIRC. (1-3) Adjourned.
(4) Vide order dated 6-12-2001, CIRC was allowed to sell the mortgaged property/assets of judgmentdebtors, Multan Edible Oil Limited and others being Bungalow on. Plot No,12-B, Phase II, South.. Park Avenue, DHA, Karachi. The auction was held and according to the Auction Report submitted by the counsel for CIRC, Dr. Muhammad Sohail Nawab submitted the highest bid of Rs.11,300,000. Learned counsel for the plaintiff as well as learned counsel for the CIRC request that the auction may be confirmed and orders may be issued for handing over vacant possession of the said bungalow to the highest bidder. Accordingly, the Auction is confirmed, the highest bid of Dr. Muhammad Suhail Nawab is accepted and it is ordered that after full payment is made by the said auction-purchaser, vacant possession of the said bungalow may be handed over to the auction purchaser through bailiff of this Court who, if needed, may take police help for the same."
3. The grievance of the appellant is that on 17-11-2003 C.M.As. Nos.96 of 2003, 3098 and 3212 of 2002 were fixed for hearing along with orders on Auction Report. The learned Single Judge left the Court to preside Division Benches and Messrs Muhammad Sharif and Faisal Arab, learned Advocates for the appellant, kept sitting in Court till 1-15 and 1-30 p.m. Respectively. After the learned Advocates left the Court, the learned Judge returned at about 2-00 p.m. And took up the execution application at 2-00 p.m. In the absence of learned Advocates for the appellant. The hearing of three C.M.As.
Was adjourned and the auction was confirmed with further direction that orders may be issued for handing over vacant possession of the bungalow to the highest bidder.
4. The facts as narrated above have not been denied by the learned Advocates for the respondents, as no counter affidavit has been filed to rebut the above facts.
5. The learned Advocate for the appellant has submitted that in the first instance, the learned Single Judge ought to have decided the C.M.As. One of which, to with; C.M.A. No,3098 of 2002 contained a prayer to stay the execution proceedings as the appellant intended to exercise option under the incentive scheme recently floated by the State Bank of Pakistan vide its BPD Circular- No,29 dated 15-10-2002. It is urged that while passing the impugned order confirming the auction, the learned Single Judge condemned the appellant unheard and guillotined the three C.M.As.
Which were pending requiring decision by the Court.
6. The appellants have prayed that the order dated 17-11-2003 confirming the auction be set aside and the matter be remanded to the learned Single Judge with direction to hear and dispose of the pending applications before confirming the sale.
7. On the other hand, the learned Advocates for the respondents have vehemently opposed the prayer made by the appellant and have fully supported the impugned order. They have submitted that the conduct of the appellant compelled the learned Single Judge, to pass the impugned order.
8. Mr. Muhammad Zaki Ahmed, learned counsel for the auction-purchaser has submitted that on 23rd of December, 2002, during the pendency of C.M.A. No,3098 of 2002, a consent order was passed to the effect that the pendency of miscellaneous applications will not act, as to restrain the proceedings for sale of the property with the result that the learned Single Judge was not obliged to decide the miscellaneous applications before passing order for confirmation of sale. The learned Advocates for the respondents have attempted to argue the merits of the miscellaneous applications as well. However, in view of the order to be passed presently, we have declined to hear the learned Advocates on the merits of the miscellaneous applications.
9. We have carefully considered the contentions raised by the learned Advocates for the parties.
10. As already observed, the plea of the appellant that his Advocates were present in Court till 1-30 p.m. And the learned Single Judge returned from Division Benches to Single Bench at 2-00 p.m. And took up the execution application at that time in the absence of Advocates for the appellant has gone unrebutted.
11. We are of the opinion that this fact alone is sufficient to set aside the impugned order for the reason that the matter was taken up after the Court time was over. If any Judge intends to proceed with. a case, after Court time is over, he can do so with the consent of both the parties and not otherwise, except in urgent cases. Secondly, the impugned order militates against the principle contained in the maxim 'audi alteram pa:rtem'. The appellant has been condemned unheard and the order adjourning the miscellaneous applications has been rendered ineffective with the passage of impugned order. The reason being that once the sale is confirmed and the property owned by the appellant is handed over to the auction-purchaser,, thereafter nothing will be left to be decided through the pending applications. The order adjourning the miscellaneous applications becomes redundant, as it cannot be acted upon in the changed circumstances.
12. Mr. Faisal Arab has pointed out that the scheme was floated by the State Bank of Pakistan during the pendency of the execution application and the schem e gave a valuable right to the appellant, which has been denied by the impugned order.
13. So far, the contention of Mr. Muhammad Zaki Ahmed that the impugned order could be passed on account of consent order dated 23rd of December, 2002 to the effect that pendency of miscellaneous applications will not restrain the proceedings for sale of property, we are of the opinion that it contains half-truth. By virtue of the consent order the sale proceedings could continue and in fact the sale proceedings continued and the highest offer by respondent No,3 was accepted. However, the consent order could not be stretched to the legal requirement of passing an order by the Court confirming the sale proceedings. The proceedings for sale of property were not inclusive of the confirmation order to be passed by the Court.
14. At this stage, Mr. Ijaz Ahmad has requested to incorporate his contention in the order to the effect that CIRC is not bound by the incentive scheme floated by the State Bank of Pakistan. After incorporating his contention in this order, it is observed that at this stage, we will not decide this point and this point shall be considered by the learned Single Judge while deciding C.M.A. No,3098 of 2002.
15. We are of the considered opinion that the propriety requires that when interlocutory applications are pending and they are of such nature, which may go to the root of the case, then before passing the final order such applications be heard and disposed of, which has not been done in the present case.
16. For the foregoing reasons, we are of the considered opinion that the impugned order is not sustainable in fact and law which is hereby set aside.
17. The matter is remanded to the learned Single Judge and the parties are directed to appear before the learned Single Judge on 8th of March, 2005.
19. Office is directed to fix this case before the learned Single Judge on the said date according to Roster. The learned Single Judge shall hear the applications and decide the same before passing of the order for the confirmation of sale. Since huge amount has been paid by respondent No,3 therefore, no adjournment shall be granted to any of the parties on any ground whatsoever and the entire matter shall be disposed of within one month from 8th of March, 2005.
' The appeal is allowed.