MUHAMMAD MUZAMMAL KHAN, J.---Instant first appeal arising out of execution proceedings, challenged the order dated 3-2-2005, whereby objection petition filed by the appellant was dismissed on the ground that the same was not signed by any authorized person.
2. Succinctly, relevant facts are that National Bank of Pakistan, WAPDA House Branch, Lahore, filed a suit for recovery of Rs.3,46,52,603 before Banking Court-I, Lahore against respondents Nos.1 to 3, which was ultimately decreed on 3-9-2003, as prayed. In execution of the decree, mortgaged property consisting of land measuring 8 Kanals, 14 Marlas of Mouza Shahpur Kanjra, Lahore City along with building and machinery/plant was put to auction with a reserved price of Rs.2,22,22,000 fixed on the basis of report of local commissioner. The Court Auctioneer reported on 15-10-2004 that on account of high reserved price, no bidder participated in the bidding. On report of the Court Auctioneer, the reserved price was reduced to Rs.10.500 million viewing the outstanding utility bills.
The auction was allegedly conducted on 27-1 f -2004 without association of any representative of the decree holder, wherein the highest bid was said to be of Rs.10650.
The highest bidder i.e. respondent No.4 paid 25% of his bid to the Court Auctioneer at the site through pay order N:.1199 dated 27-11-2004 drawn on ABL Badami Bagh Branch, Lahore. Awaiting acceptance of the highest bid and confirmation of sale by the Court, two objection petitions were filed before the executing Court, one by the appellant and the other by third party claiming the auction dated 27-11-2004 to be fake and the objectors offered prices of the property auctioned double the bid received by the Court Auctioneer.
3. Respondent No.4 contested both the objection petitions, which were ultimately dismissed by the learned Judge Banking Court-I, through a consolidated order dated 1-2-2005. Objection petition filed by the appellant/decree-holder was dismissed solely on the ground that it was not signed by any authorized person or by the learned counsel on behalf of the Bank. Appellant has challenged dismissal of objection petition through instant appeal wherein, in response to notice by this Court, respondent No.4 has, appeared and is represented through his counsel, whereas respondents Nos.1 to 3 being the judgment debtors opted to remain absent and as a matter of fact are Pro forma parties for the purpose of this appeal.
4. Learned counsel for the appellant submitted that defect, if any, in the objection petition on account of non-signing of the same by the objector or his counsel was curable but the executing Court did not allow the appellant to make good the defect, thus the impugned order is not sustainable. I t was further argued that there was no requirement of signing the objection petition and since the appellant had challenged the auction before its confirmation on the grounds detailed in the petition, which included fraud as well, the executing Cou r is even in suo motu powers could entertain the objection and could inquire into the allegations of the objector which were otherwise apparent on the face of the record. Reference to the judgments in the cases of Ismail and another v. Mst. Razia Begum and 3 others 1981 SCM R 687; Ghulam Mohi-ud-Din and another v. Noor Dad and 4 others PLD 1988 SC (AJ&K) 42; Taj Muhammad v. Muhammad Azam Sattar and another 1998 CLC 787; Ali Muhammad and 2 others v. Gulfam and another PLD 1983 Karachi 99 and Messrs Pakland Scientific Production v. Messrs Pioneer Insurance Company Ltd. and another PLD 1991 Karachi 414 was made to contend that defect of non-signing the objection petition was curable and should have been remedied by providing an opportunity, in this behalf.
5. Arguments of the appellant were refuted and impugned order was supported by the learned counsel for respondent No.4 with the arguments that the other objector had also filed an appeal before this Court and this appeal may be heard/decided there along. It was further submitted that under Order VI, rule 14, C.P.C. every pleading has to be signed by the concerned party, without which the same could not be processed. It was further emphasized that since the decree-holder approached the executing Court with unclean hands, under connivance with third party, the defect cannot be allowed to be rectified. Judgment in the case of Faqir Muhammad and others v. Mst.
Muhammad Bibi and others PLD 1991 SC 590 was relied to contend that unless a good cause is shown for non-signing of objection petition, the same could not have been further processed and the appellant was not entitled to remove the defect.
6. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, with their assistance. Undisputedly, sale of property through auction has not so far been confirmed by the executing Court. File is absolutely thirsty of the proof that objection petition by the appellant was tainted with dishonest approach on account of any mala fide. The decree-holder/objector who has already obtained a decree against respondents Nos.1 to 3 for an amount of Rs.3,46,52,603 appears to be genuinely interested in increase of sale proceed of the mortgaged property, as there is no other asset of the judgment-debtors. Besides it, viewing the valuation of the property subject of auction worked out by the local commissioner at Rs.2,22,22,000 and the highest bid of respondent No.4 which is just near the reserved price of Rs.10.500 million, objection petition by the appellant cannot be said to be out of its connivance with any third party, especially when no representation of the decree-holder was called upon to join auction proceedings by the Court Auctioneer. It was admitted before us that power of attorney in favour of the learned counsel for the appellant who appeared before the Banking Court was duly signed by the authorized person on behalf of the Bank and this power of attorney was, available on the record of the executing Court. In this situation, non-signing of objection petition either by any duly authorized representative of the appellant or by duly appointed counsel was just an irregularity which occasioned due to inadvertence.
We are not ready to accept that the objection petition was not deliberately signed. Though submissions of respondent No.4 of conniving of appellant with some third party, who had no . interest in the litigation in hand are not borne out of the record, yet if those are accepted, just for sake of arguments, learned counsel for respondent No.4 could not satisfy us, as to what benefit would have accrued to the appellant on account of lapse under discussion. To our mind, non- signing of objection petition was not intentional/deliberate and the executing Court should have allowed one chance to the appellant for curing the defect by allowing the appellant to sign the objection petition already pending or to file fresh duly signed objection petition for its determination on merits.
7. Law regarding applicability of provisions of Civil Procedure Code to the objection petition is all clear as section 141, C.P.C. made provisions of the Code applicable to all proceedings of civil nature.
Under the provisions of Order VI, rule 14, C.P.C., the defect could be cured being bona fide and was not tainted with bad faith, as per judgment in the case of Faqir Muhammad and others (supra).
This alighted judgment of the Honourable Supreme Court, according to our humble view, reaffirmed the entire earlier case law relied by the learned counsel for the appellant, wherein non- signing of pleading,s was held to be a defect rectifiable.
8. Adverting to the request of learned counsel for respondent No.4 for decision of instant appeal along with appeal filed by the third party, whose objection petition was also dismissed by the executing Court on merits, we are of the view that both these appeals have nothing common because in the instant appeal the objection petition was dismissed on technical ground without touching merits of the objections, whereas in the other appeal objection petition was dismissed on merits. Above all, instant appeal is by the decree-holder, who has interest in extracting the maximum sale price of the mortgaged property and in the other appeal, objections were filed by a person not party to the litigation or to the auction proceedings. Besides these facts, we are of the considered view that there is no chance of conflict of judgments by this Court, hence we opted to decide this appeal separately. The other appeal will be decided independently on its own merits.
9. Before parting with the judgment, it will not he out of place to mention here that objections of the appellant, were under section 22(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, wherein no specific form for raising objections has been laid down. A bare reading of this provision of law revealed that had the objection of the appellant been allowed to continue, as its petition stood, there would have been no violation of law. We have also no ambiguity that sale .of mortgaged property in absence of any of the parties to the suit through an alleged fraudulent auction, could have been objected verbally without any written application whereon the executing Court was competent to take suo motu notice and could competently examine the legality or otherwise of the auction proceedings.
10. For the reasons discussed above, we are unable to maintain the impugned order dated 3-2- 2005 to the extent of the appellant and set aside the same touching it, with the result that this appeal is accepted and objection petition filed by the appellant shall be deemed to be pending before the executing Court who will have the defect removed or would allow the appellant to file fresh objection petition duly signed by the appellant and its counsel. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.