This single judgment shall decide the present appeal (E.F.A. No.33 of 2004), filed by auction- purchaser, and the connected appeal (E.F.A. No.34 of 2004), instituted by the decree-holder bank, as common questions of law and facts arc involved in both the appeals and they have arisen out of one and the same impugned order.
2. Both the appeals proceed against order dated 3-11-2003, whereby the learned Judge Banking Court accepted certain objection petitions, including the one filed by Mst. Samina Riaz, the respondent No.3.
3. Precisely stated facts of the case arc that pursuant to passing of the decree for recovery of Rs.
1,85,88,690, against Messrs Hi Born International (Pvt.) Ltd. and others, by the learned judge Banking Court, vide judgment and decree dated 3-4-2001, the decree-holder initiated the execution'proceedings, during which, the mortgaged Property (bearing No.47-A Zafar Ali Road.
Gulberg-V, Lahore) measuring 1-Kanal. 7-Marlas, 101 sq. ft., was put to auction through the Court auctioneers under the supervision of the learned Executing Court. The property in question could not be auctioned/sold in several attempts, however, on 21-7-2003, appellant's highest bid of Rs.55,10,000 was accepted and he was declared as successful bidder.. The auction-purchaser. statedly, deposited the entire sale price/auction amount. On 9-9-2003. Mst. Samina Riaz, the judgment-debtor/respondent No.3, filed the objection petition. inter alia, pleading that no sale/auction of the property took place at the spot on 21-7-2003 and that the property was sold at a very low price of Rs.55,10,000, in collusion with the Court auctioneers and the decree-holder, whereas the actual value of the property in question is not less than rupees one crore. The said application was resisted by the auction-purchaser as well as the decree-holder, through filing separate replies, asserting therein, that the application is barred by time, that the objector did not deposit 20% sale price, as required under Order XXI, rule 90, C.P.C., and that inadequacy of the sale price is no ground for setting aside of the auction/sale. It appears that certain objection petitions were filed by Javed Amin and Mst. Salma Masood, which were also resisted by the decree-holder bank. Ultimately, the learned Banking Court, after hearing the parties, accepted the objection petitions and set aside the auction dated 21-7-2003, vide composite impugned order dated -3-11- 2003, hence the present appeals challenging the impugned order only to the extent of acceptance of objection petition, filed by Mst. Samina Riaz.
4. Learned counsel for the appellant/auction-purchaser has contended that the objection petition, filed by Mst. Samina Riaz was barred by time; she did not deposit 20% of the sale amount, as required under Order XXI, rule 90. C.P.C. and that inadequacy of sale price is no ground for setting aside the sale. as no fraud has been alleged in conducting the sale. He has relied upon Punjab Province (now Province of West Pakistan) v. Kh. Feroze Din Butt and another PLD 1960 (W.P.) Lahore 791 and Brig. (Retd.) Mazhar ul Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lahore 706. Learned counsel for the Bank, in the connected appeal (E.F.A. No.34 of 2004) has adopted the arguments of the learned counsel for the appellant and has submitted that no fraud was committed in conducting the sale/auction. He has relied upon Syed Munir Hussain Gilani v. Habib Bank Limited. Township Branch, Lahore through constituted Attorney and another 2002 CLD 315. Conversely, the learned counsel for the respondent No.3/objector has submitted that the objector came to know on 8-9-2003 that Court auctioneers filed the report on 2-8-2003. therefore, objection petition filed on 9-9-2003 is within time. He has further submitted that no auction proceedings took place at the spot and the sale was fraudulent and fictitious. He has added that inadequacy of sale price is sufficient ground to set aside the sale.
He has relied Messrs Dawood Flour Mills and others v. National Bank of Pakistan 1999 MLD 3205. The learned counsel for respondent No.6 has also adopted the argument of the learned counsel for the appellant and has referred to the judgments reported as Messrs S.P.R.L. Rehman Brothers and another v. Judge Banking Court No.II, Lahore and another 2000 MLD 1957; Messrs Majid & Sons and another v. National Bank of Pakistan 2002 CLD 1742 and Mrs: Shahida Saleem and another v. Habib Credit and Exchange Bank Limited and 4 others 2001 CLC 126.
5. In view of the arguments of the learned counsel, we have examined the available record, perused the impugned order and find that the learned Banking Court, without any material/evidence available on record, has abruptly concluded and held that the market value of the property is not less than rupees one crore and it was sold at a throwaway price. Similarly, the findings of the learned Banking Court, that the objection petition requires summary disposal and the property in question was sold at a very low price, as the market value of the property is not less than rupees one crore, are not supported and substantiated by the record. It is not discernible from the impugned order or/and the available record that on the basis of which material, it was held that the property was worth Rs. one crore. The said figure was only quoted by the objector in her objection petition who asserted that the actual price of the property is more than rupees one crore. which fact was denied by the decree-holder as well as the auction-purchaser. The learned Judge Banking Court. while taking the plea of the objector as gospel truth, of course without any evidence on record, erroneously came to the conclusion that the market value_of the property is not less than rupees one crore. Additionally, we are of the view that the impugned order is devoid of reasons and was passed without due application of judicial mind. The learned Banking Court neither adverted to nor decided the actual controversies raised by the parties through filing the objection petition and their replies. The impugned order is sketchy, devoid of reasons and simply manifests non-application of judicial mind, inasmuch as it has been erroneously held that "on 10- 9-2003 it came to the knowledge of the objectors that the report was filed on 2-8-2003 and accordingly as per contentions as mentioned in the objection petitions the auction also came to the knowledge of objectors on 10-9-2003 and accordingly from that date the objection petitions were filed within limitation i.e within 30 days on 9-9-2003". Said findings show that the objector came to know on 10-9-2003 about filing of the report and they filed the objection petition on 9-9- 2003. To say the least, it is humanly impossible to file the objection petition one day earlier, viz. 9-9- 2003 from the date of knowledge, i.e. 10-9-2003.
6. We have perused the impugned order in juxtaposition with the contents of the objection petition and its reply and find that as a matter of fact the pleas raised by the parties were not properly and legally considered by the learned Banking Court in its true perspective. The learned Banking Court, without holding an inquiry and in complete oblivion of the facts of the case, has rendered the impugned order. To our mind. the learned Banking Court, in the circumstances of the case in hand, could not decide the objection petition. unless and until reasonable opportunity for producing evidence was afforded to both the parties. We feel that this was a fit case in which the learned Banking Court ought to have investigated claims of the parties and decided their objections to the sale of the property by providing sufficient opportunity to the parties for establishing their respective claims through the production of evidence. It has been held in Mst. Syrraya Begum v.
Muslim Commercial Bank Ltd. and 4 others PLD 1990 Lahore 4 that "All claims relating to the rights, title or interest of the claimant or objector in the attached property have to be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest". It does not mean that the learned Executing Court is under an obligation to mechanically record the evidence of the objector in each and every case when an objection petition is brought before it. Of course, the learned Executing Court had to see In individual cases as to whether the case warrants the recording of evidence or not and that the objection application has been filed frivolously, contumaciously and to delay the proceedings or it is a genuine application. Primarily, it is the function of the Executing Court to decide as to whether the objection petition is to be decided after recording the evidence or only after hearing the parties. In the instant case, we feel that this was the fit case, where the parties should have been allowed opportunity to establish their respective claims, through production of evidence.
7. As regards the contentions raised by both the parties, we are inclined to remand the case for the fresh decision of the objection petition, therefore, we have refrained ourselves from rendering any findings on the said contentions, as those findings may prejudice the cause of either of the parties before the learned Banking Court. Needless to add that the parties are at liberty to raise all the legal and factual questions available to them under the law before the learned Banking Court.
8. In the above perspective, we have examined the impugned order and find that the same suffers from legal errors/defects, the appellant has, in fact, been condemned unheard and thus, we are inclined to set aside the impugned order and to remand the case to the learned Banking Court.
9. Upshot of the above discussion is that both the appeals are allowed and the impugned order dated 3-11-2003, to the extent of acceptance of objection petition. filed by Samina Riaz, is set aside with no order as to costs. Resultantly, the said objection petition shall be deemed to be pending before the learned Banking Court, who shall decide the same, afresh, after providing reasonable opportunity to the parties to produce their evidence in support of their respective claims and after hearing the parties and of course in accordance with law.