' SYED ZAHID HUSSAIN, J.---Order dated 17-7-2002 passed by the Banking Court-I, Lahore whereby the objection petition filed by Ch. Saeed Ahmed was accepted and on cancellation of sale certificate in favour of the appellants the property was ordered to be put to auction, has been assailed through this appeal.
2. It is contended by the learned counsel that the appellants who had made a deposit of the amount being second highest bidder, by order of the Court could not be made to suffer and that though such a sale may not be strictly consistent with the provisions of the rules i,e, Order XXI, of Code of Civil Procedure, 1908 yet the Executing Court had the inherent power to order such a sale.
Reference has been made by him to Multan Khan v. Cantonment Board, Nowshera through Cantonment Executive Officer, Nowshera and 4 others (1995 CLC 1297) which was a case pertaining to the lease hold rights of a cantonment property and Messrs 'United Bank Ltd., Karachi v. Mst.
Asma Zafarul Hassan (1980 CLC 565) that a Court could invoke inherent powers in appropriate cases. The learned counsel for the contesting respondents, on the other hand, supports the order passed by the Banking Court. It is contended that on non-payment of the auction money by the auction-purchaser, the only course for the Court was to order re-auction of the property and no disposal through private treaty or other means was permissible. He has made reference to Feroze Din Faiz v. Chaman Lal and others (PLD 1953 Lahore 83) and Manilal Mohanlal Shah and others v.
Sayed Ahmed Sayed Mahmad and another (AIR 1954 SC 349) that when a mode of doing a thing (sale through auction) has been prescribed by the rules, the sale is permissible only by following and adhering to the rules and not at the will and whim of the Court.
3. The respective contentions have been considered.
4. The lengthy and prolix background of the matter need not be reiterated here except to briefly state that respondent No,6 (the decree holder-Bank) had obtained a decree against Ch. Saeed Ahmed and others for the recovery of Rs,145,104 on 19-4-1984. They failed in the litigation qua the decree up to the Hon'ble Supreme Court of Pakistan. In the execution proceedings, the property was put to auction and one Abdul Rehman gave the highest bid who, however, later applied for setting aside of the auction. His application was accepted on 21-4-1991 and the auction was set aside. The appellants appeared before the Court who offered to make payment of the amount and transfer of the property to them in lieu thereof. Ch. Saeed Ahmed also showed his willingness to pay the amount. He was given the first option to make payment on or before 31-7-1991. He however failed to make the payment and the appellants were then permitted to deposit the amount of Rs,412,462 before 1-9-1991. Since the amount was deposited by the stipulated date, the property was ordered to be sold and the execution proceedings- were consigned on 31-3-1992, in view of the decree having been satisfied. The objection petition filed by the respondents was dismissed on 15-4-1994 which gave rise to Writ Petition No,6981 of 1994 and was decided on 26-2-1995 remitting the matter to the learned Banking Tribunal for decision of the objection petition and to decide all legal and factual pleas arising therefrom. As a sequel, order dated 17-7-2002 was passed by the learned Banking Court who has accepted the objection petition of the respondents by cancelling the sale certificate and ordering re-auction of the property. It may be mentioned that after Abdul Rehman (the auction-purchaser) had failed to make deposit of the amount and applied for setting aside of the auction, the Court was obliged to order resale through auction as is envisaged by rule 84, rule 86, rule 87 and rule 71 of Order XXI of Code of Civil Procedure, 1908. The contention of the learned counsel for the appellants (in support of the sale in favour of the appellants) based upon the inherent power of the Court cannot be countenanced in view of the explicit legal provisions on the subject and the law laid down by the Hon'ble Supreme Court of Pakistan in Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others (PLD 1987 SC 512). Quite recently it has been held by the Hon'ble Supreme Court of Pakistan in Afzal Maqsood Butt v. Banking Court No,2, Lahore and 8 others (PLD 2005 SC 470) that "the Court has to follow the procedure provided in Order XXI, rules 82 to 94, C.P.C." while executing the decree and that in case the auction-purchaser fails to make deposit of the auction money, the Banking Court "shall hold fresh auction of the property for satisfaction of the decrees, in accordance with law". The sale in favour of the appellants has thus rightly been cancelled through the impugned order. The contention of the learned counsel for the appellants that the appellants in compliance of Court's order had made a deposit of the amount and should not be made to suffer, is also of no substance inasmuch as the appellants had themselves applied to the Court for makiag deposit and if an illegal order was obtained from the Court on their application per invitum, no indefeasible right can be claimed by them on that basis. It may, however, be observed that in the re-auction to be held, the appellants may also take part and the amount already deposited by them (if they succeed in the fresh auction) can be adjusted or they may apply for the return of the same.
' In view of the above, the appeal is dismissed with the above observations.