' MIAN HAMID FAROOQ, J.---Instant appeal, filed by the appellant/judgment-debtor, proceeds against order, dated 10-6-2002, whereby the learned Judge, Banking Court, dismissed his application, under Order XXI, rule 72 read with section 151, C.P.C.
2. Precisely stated facts, relevant for the decision of the present appeal, are that pursuant to passing the ex parte decree, dated 21-11-2002, for a sum of Rs,13,37,996, by the learned Judge Banking Court, against the appellant, the decree-holder/respondent initiated the execution proceedings.
' During the execution process, the learned Executing Court appointed the Court Auctioneer for the sale/auction of appellant's property and, then, the appellant filed the application, under section 12(2), C.P.C. And an objection petition, however, both the applications were, statedly, withdrawn by the appellant. At one point of time, the appellant, reportedly, undertook to deposit a portion of the decretal amount along with auction expenses, but, he did not stick to his promise and ultimately the property was again put to sale/auction. On the date so fixed, no interested bidder participated in the auction, however, respondent-Bank without obtaining permission from the learned Executing Court, itself submitted a bid of Rs,18,00,000, as against reserve price of Rs,12,00,000. Pursuant thereto the Court Auctioneer submitted auction report before the learned Executing Court, thereby recommending that the sale/auction, in favour of the respondent-Bank, be confirmed. Thereupon, the appellant filed the application, under Order XX1, rule 72, C.P.C., submitting that as the decree holder bank participated in auction proceedings without obtaining express permission from the Court, as required under Order XXI, rule 72, C.P.C.. Therefore, the sale is illegal and void. The said application was opposed by the respondent-Bank and ultimately the learned Executing Court, after hearing the parties, proceeded to dismiss the said application, vide impugned order, dated 10-6-2002, hence the present appeal.
3 None has entered appearance on behalf of the respondent-Bank, thus, it is proceeded ex parte.
4. Learned counsel for the appellant, while referring to the provisions of Order XXI, rule 72, C.P.C.
States that since no permission was obtained by the decree-holder bank to participate in the sale, therefore, the auction conducted by the Court Auctioneer and the ensuing impugned order be declared as null and void. Learned counsel, when confronted with the provisions of section 15(5) read with section 19(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance 2001), referred to the following judgments:--- ' Rana Muhammad Shafi and another v. M. Javed Iqbal Siddiqui, Judge Banking Court No,1, Gujranwala and 2 others 2002 CLD 1269, Agha Attaullah v. Presiding Officer, Banking Court and others 2002 CLD 1550, Nawazish Latif Bhatti v. Allied Bank of Pakistan, Ltd. 2004 CLD 92, Messrs Nizamuddin and Company and 4 others v. The Bank of Khyber 2003 CLD 914 and Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. Through Branch Manager and 3 others 2003 CLD 1693.
5. We have heard the learned counsel and examined the available record. Admittedly, the respondent-Bank sought execution of the decree through intervention of the learned Banking Court. Section 19(2) of the Ordinance, 2001, inter alia, provides that the decree of the Banking Court shall be executed in accordance with the provisions of C.P.C. Or any other law for the time being in force. For facility of reference said provision is reproduced below:-- ' S.19(2) "The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure. 1908 (Act V of 1908) or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree-holder consider appropriate, including recovery as arrears of land revenue."
' Section 15(5) of Ordinance, 2001, which deals with the sale of mortgaged property, provides that financial institution shall be entitled in its discretion to participate in public auction and to purchase mortgaged property, which provision of law reads as follows:--- ' S.15(5). "The financial institution shall be entitled, in its discretion to participate in the public auction, and to purchase the mortgaged property at the highest bid obtained in the public auction."
Section 19 of the Ordinance, deals with the execution of decree and sale with or without the intervention of the Banking Court. Section 19(5) provides that provisions of subsection (5), (6), (7), (8), (9), (10), (11) and (12) of section 15 shall, mutatis mutandis, apply to sales of mortgaged property. Section 19(5) is reproduced below:-- ' S.19(5). "Provisions of subsections (5), (6), (7), (8), (9), (10), (11) and (12) of section 15 shall, mutatis mutandis, apply to sales of mortgaged, pledged or hypothecated property by a financial institution in exercise of its powers conferred by subsection (3)."
It flows from the joint reading of the aforenoted two provisions of law that when a mortgaged property is proposed to be sold either with the intervention of the Court or without the intervention of the Court, in that case legislature has conferred discretion upon the decree-holder to participate in the public auction without obtaining the permission of the learned Executing Court and to purchase the mortgaged property at the highest bid.
6. Now coming to the provisions of C.P.C. In respect Of the purchase of the property by the decree- holder. Order XXI, rule 72(1), C.P.C. Provides that no holder of a decree shall without the express permission of the Court, bid for or purchase the property which is sold in execution of a decree.
Provision of Order XXI, rule 72(1), C.P.C. Is reproduced as follows:-- ' O.XXI, R.72(1) "Decree-holder not to bid for or buy property without permission.---(1) No holder of a decree in execution of which property is sold shall without the express permission of the Court, bid for or purchase the property."
' It is evident from the narrative of above provisions of Ordinance, 2001 and C.P.C. That those are in conflict with each other. Now the question arises as to when provisions of C.P.C. Are in conflict with the special statute, i,e, Financial Institutions (Recovery of Finances) Ordinance, 2001, then whether the provisions of former or latter law would be applicable. The said legal question was raised, dealt with and decided by the Hon'ble Supreme Court of Pakistan in the case reported as Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC 512, with reference to the provisions of Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) in juxtaposition with the provisions of C.P.C. It has, inter alia, been held in the case of Hudaybia Textile Mills Ltd. And others (ibid) that special Court has to follow the procedure laid down in regard to the suits in the C.P.C. Except to the extent any contrary provision is made in the special enactment and, therefore, wherever the provisions of special enactment are repugnant to the provisions of the C.P.C., the procedure provided under the special statue will override the provisions of C.P.C. It appears appropriate to reproduce the relevant portion from the aforenoted judgment, which reads as follows:--- "...Reading sections 4(1) and 141. C.P.C. Together the position that emerges clearly, is that while exercising its civil jurisdiction the special Court has to follow the procedure laid down in regard to the suits in the C.P.C. Except to the extent any contrary provision is made in the special enactment.
Therefore, wherever the provisions of the Ordinance are repugnant to the provisions of the C.P.C., the former will override the latter. To that extent the general provisions of the C.P.C. Will give way to the contrary provisions of the Ordinance which will take over to the extent of the repugnancy...."
7. In view of the law declared by the Hon'ble Supreme Court of Pakistan, in the case of Hudaybia Textile Mills Ltd. And others (ibid), which is binding on this Court per force of Article189 of Constitution of Islamic Republic of Pakistan as sections 15(5) and 19(5) of special enactment, i,e, Financial Institutions (Recovery of Finances) Ordinance, 2001, with regard to the purchase of the property by the decree-holder without the permission of the Executing Court, are contrary to the provisions of Order XXI, rule 72 C.P.C. Therefore, the aforenoted provisions of special enactment will override the provisions of C.P.C., which will give way to the contrary provisions of special statute.
Being guided by the aforesaid law declared, we are of the view that the respondent bank, under the circumstances, was not under any legal obligation to obtain permission of the learned Banking Court for purchase of the mortgaged property, rather it could, in its discretion, participate in public auction and purchase mortgaged property at highest bid, which discretion was exercised by the respondent-Bank.
' In the instant case, according to the report of the Court Auctioneer, no bidder participated in the auction and the respondent bank purchased the property at the highest bid of Rs,18,00,000 as against reserve price of Rs,12,00,000. We feel that the auction was conducted according to law and thus neither the auction/sale nor the impugned orders calls for any interference by this Court.
8. As regards the judgments, relied upon by the learned counsel suffice it to say that the same are not, at all, applicable under the facts and circumstances of the present case, inasmuch as none of the judgments has dealt with the provisions of Order XXI, rule 72, C.P.C. With reference to sections 15(5) and 19(5) of Ordinance, 2001. It has been held in the case of Nawazish Latif Bhatti (supra), relied upon by the learned counsel, that Executing Court is well within its right to adopt any mode for execution of decree and it can execute decree either in view of provisions of C.P.C. Or in any other mode, which Court may deem fit.
9. In the above perspective, we have examined the impugned order and find that the same is legal and does not call for any interference by this Court, therefore, the same is hereby maintained.
10. Upshot of the above discussion is that the appeal is devoid of merits, thus, the same stands dismissed with no order as to costs.