' MUHAMMAD MUZAMMAL KHAN, J.---Instant execution appeal assailed orders dated 6-5-2005 and 16-5-2005 passed by the Banking Court-III, Lahore, dismissing appellant.'s objection petition under Order XXI, rules 89/90, C.P.C.
2. Succinctly, relevant facts are that Zarai Taraqiati Bank Limited (respondent No,1) filed a suit for recovery of Rs,7,44,243 against the appellant, as he failed to repay the finance facility availed by him. Appellant failed to appear in response to notices issued by the Banking Court through different modes and did not file any petition for leave to appear/defend the suit, as prescribed by section 10(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, resulting in ex parte decree dated 14-4-2004. The ex parte decree was converted into execution proceedings under section 19 of the Ordinance and the property mentioned in the Fard Taliqa was ordered to be auctioned by appointment of a Court Auctioneer namely, Zafar Iqbal, Advocate, vide order dated 14-4-2004. Court Auctioneer vide his report dated 26-3-2005 reported that the appellant's land measuring 16-Acres and 18 Marlas has been sold through open auction for an amount of Rs,8,00,000 in favour of one Makki Abdul Khaliq. At this juncture, appellant/judgment-debtor filed an objection petition claiming that auction was dubiously held and was thus fake. He also expressed his willingness to deposit the decretal amount. Pending this petition appellant also moved another application under section 7 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 for extension of time granted to him for deposit of the decretal amount on 6-5- 2005. Appellant failed to deposit the decretal amount resulting in dismissal of his applications, confirmation of sale and issuance of certificate in this behalf by the Banking Court. Appellant thereafter filed instant appeal and respondents in response to notice by this Court have appeared and were represented through their respective counsel.
3. We have heard the learned counsel for the parties and have examined the record, appended herewith. Report of the Court Auctioneer revealed that only four persons participated in the open auction, who with first bid of Rs,7,70,000 allowed the hammer to fall at Rs,8,00,000. The manner and quantum of rising bids which is only Rs,50,000 and the price of 16-Acres and 18 Marlas of agricultural land for only Rs,8,00,000 is simply amazing and goes a long way to support the claim of the judgment-debtor that his property has been let off on a throwaway price. Though under law, the Court Auctioneer was to report back to the Court under whose order he was conducting the auction, all the steps he took in publicizing the sale of land under auction yet report dated 26-3- 2005 is absolutely silent about the steps taken by him and the modes adopted for extensive publicity of the auction. It has not been detailed as to where the auction was held and how many residents of the vicinity came there to participate in this exercise. Court Auctioneer has not mentioned in his report that any respectable of the area including any Nazim, Naib Nazim, Councillor, Lumberdar or Chowkidar was called to join him in order to show transparency in the auction which was being conducted by him. From a bare reading of the report of the Court Auctioneer one would not be mentally detained even for a while to say that the reported exercise was done by 4/5 persons and nobody else participated or witnessed the same. Besides extensive participation of the residents of locality, efforts should have been made to publicize auction through beat of drum in the adjoining villages, announcements in the mosques and other important places around. We feel sorry in remarking that dubious nature and fakeness of the auction proceedings were apparent on the face of the report. Dated 6-3-2005 and the Banking Court failed in discharge of its legal/statutory obligations to undo the same for the defects therein, whereas such exercise should have been undertaken even in absence of any objection by the judgment-debtor or anybody else.
4. We have noticed that judgment-debtor initially filed his objections beyond the period of limitation prescribed in this behalf but he had moved an application under section 5 of the Limitation Act, 1908 and that he also failed to deposit the decretal amount as per directions by the executing Court but we are unable to understand as to why this exercise was not done suo motu, for which no period of limitation has been prescribed. Since we are sitting in appeal and are equipped with same jurisdiction which vests in the executing Court, it is felt that we will be failing in administering justice if we also close our eyes simply under the garb that sale has already been confirmed. Highest bidder cannot earn any edge over on the basis of such fake auction and in order to meet the ends of justice we direct refund of his amount along with mark-up at the prevalent bank rate which shall be paid by the judgment-debtor and in terms of Order XXI, rule 89, C.P.C. We accept offer of the appellant to deposit the decretal amount plus markup payable to the highest bidder within one month and in case of his failure to deposit this amount, mark-up amount shall be adjusted out of sale proceeds on fresh auction.
5. For the reasons noted above, both the impugned orders dated 6-5-2005 and 16-5-2005 are hereby set aside and by accepting this appeal executing Court is directed to work out mark-up payable to auction-purchaser and to accept it along decretal amount from the appellant and to put the property mentioned in Fard Taliqa to fresh open auction after Sue publicity in case of his failure. 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.