MIAN HAMID FAROOQ, J. - Appellants/judgment- debtor, through the present appeal, have called in question order dated 21.9.2005, whereby the leamed Banking/Executing Court dismissed their objection petition.
2. Respondent bank's suit for recovery of Rs. 6,01,463/- were decreed, against the appellants, by the learned Judge Banking Court, vide judgment and decree dated 16.1.2002. According to the appellants, they, out of the decretal amount, have so far deposited a sum of Rs. 1,25,000/-. During the execution process, appellants' property was auctioned, held on 15.1.2003, under the orders of the learned Executive Court, which was purchased by respondent No. 2 for a sum of Rs. 5,00,000/- and 1/4th of the auction price was deposited by him on the same day. The appellants challenged the said auction/sale by filing the objection petition, under Order XXI, Rule 90, C.P.C., but the same was dismissed by the learned executing Court, on 8.11.2003, as the appellants failed to deposit 20% of the sale amount. This order was not further challenged. Appellants' application for review and recalling of Order dated 8.11 2003 was dismissed by the learned executing Court, vide order dated 31.12.2004. Later on, at the request of the learned counsel for respondent No. 2 and in the absence of the appellants, the learned Judge Banking Court, on 5.1.2005, allowed the auction purchaser to deposit remaining 3/4th of the auction amount to which no objection was raised by the decree- holder bank. The auction purchaser, statedly, deposited the said amount with the Court. The appellants, then, filed another objection petition, assailing order dated 5.1.2005, inter alia, pleading that. In view' of the provisions of Order XXI, Rule 85, C.P.C., the leamed executing Court could not allow- the auction purchaser to deposit 3/4th of the price after the lapse of two years. The said application was resisted by the auction purchaser and the decree-holder and ultimately the learned executing Court dismissed the said application, vide impugned order dated 21.9.2005, hence the present appeal.
3. Learned counsel for the appellants contends that , the provisions of Order .XXI, Rule 85, C.P.C, are mandatory and the executing Court is not empowered to extend the time fixed for the deposit of remaining 3/4th of the auction amount, therefore, the impugned order is not sustainable. He has relied upon Afzal Maqsood Butt v. Banking Court No. 2, Lahore and 8 others (2005 CLD 967) and Ajksun International Manufacturers & Exporters, Allama Iqbal Market, Paris Road, Sialkot City through its Partners and 2 others v. Habib Bank Limited through its Vice President and 2 others (PLJ 2005 Lahore 667). Conversely, the learned counsel for the respondent bank, while relying upon Al- Hassan Feeds and another v. United Bank Ltd., Jinnah Road, Abbottabad and 6 others (2004 CLD 275) submits that the learned executing Court is competent to extent time for deposit of remaining 3/4th of auction amount. Although respondent No. 2 was proceeded ex parte, vide order dated 28.3.2006, yet his learned counsel has entered appearance, today and supported the impugned order.
4. We have heard the learned counsel and examined the available record. Only point involves in this case is as to whether an executing Court is empowered to extend, time for deposit of remaining 3/4th of purchase money, which has statutorily been fixed under the Provisions of Order XXI, Rule 85, C.P.C. The learned executing Court, while relying upon the case of Al-Hassan Feeds
(ibid) has extended the time and allowed respondent No. 2 to deposit balance 3/4th of the auction price that too after a period of two years Here it appears appropriate to refer to the relevant provisions of law. Order XXI, Rule 84, C.P.C, provides that on every sale of immovable property, the auction purchaser shall immediately pay 25% of the purchase money to the Court auctioneer and in default of such deposit, the property shall forthwith be resold. Order XXI, Rule 85, CPC envisages that. The full amount of the purchase money shall be paid by the purchaser in the Court on the 15th day from the date of Sale, of the property. The next provision of law in line i.e. Rule 86 of Order XXI states that if there is default in payment Within the period mentioned in the last preceding rule (Rule 85) the deposit, under the discretion of the Court, be forfeited and the property shall be resold, It flows from-the joint reading of the afore-noted provisions of law that an auction purchaser is bound under the law to deposit 25% of the purchase money on the date of the sale and the rest of 3/4th of the purchase money had to be paid within 15 days from the sale of the property, In this case, as noted above, the sale was held, on 15.1.2003, and although the auction purchaser deposited 1/4th of the auction price on the same day, yet he failed to pay the balance 3/4th purchase price within a period of 15 days, until, on 5.1.2005, he was allowed by the Banking Court to deposit 3/4th of the purchase price, It flows from the said narrative that the auction purchaser was allowed to deposit 3/4th of the purchase price after the expiry of more than two years from the date of sale in clear violation of Order XXI, Rules 85 and 86, CPC.
5. Now coming to the question as to whether in the present case, the learned executing Court, after the expiry of period of two years, could have extended time for deposit of 3/4th of the sale price, which has statutorily been fixed, It is settled law by now that a Court is not competent to extend the time which has been fixed by a statute. Reference can be made to Messrs Maqi Chemicals Industries (Pvt.) Limited through Chief Executive and 3 others v Habib Bank Ltd. Through Manager and 2 others (2003 CLD 571). We are of the view that the provisions of Order XXI, Rule 85, C.P.C, are mandatory as the noncompliance of saj/d provisions entails penal consequence as provided in rule 86 of Order XXI. We are fortified by the principle of law laid down in the case of Afzal Maqsood Butt (ibid), wherein it has been held that the provision of Order XXI, Rule 85, C.P.C, relating to the payment of sale price is mandatory, It would be appropriate to reproduce a portion of the said judgment which reads as follows:- "The provision of Order XXI, Rule 85, C.P.C, relating to the payment of sale price is mandatory and the Court in the normal circumstances, is not supposed to extend the time for deposit of the sale price beyond the time provided under the law and on the failure of auction-purchaser to deposit the entire sale price within the prescribed time or within the time allowed by the Court, would render the sale invalid and Court has no option except to resell, the property as in consequence to the non-deposit of sale price by the auction purchaser within' the time given to him, the sale would become invalid. There can be ho departure to the legal position that in the normal circumstances, after the confirmation of sale, it is not set aside but if the sale itself has become invalid, its confirmation would also be invalid."
6. Learned counsel for the respondent bank, when confronted with the case of Afzal Maqsood Butt (ibid), states that it is true that under the "normal circumstances", the executing Court could not extend time, but this was the fit case in which the time could be extended. However, learned counsel could not demonstrate from the available record as to what were the abnormal and extraordinary circumstances, which persuaded the learned Court in this case to extend the period for deposit of 3/4th of the sale price, In the above perspective, it is held that the executing Court, Under the normal circumstance, is not empowered to extend time for deposit of 3/4th of the purchase price, which has statutorily been fixed under the mandatory provisions of Order XXI, Rule 85, C.P.C.
7. Now adverting to the judgment of Al-Hassan Feeds (supra), relied upon by the learned Counsel for the respondent bank and the learned Banking Court, In-the said case of AI-Hassan Feeds, the property was sold, on 17.9.1998, for a sum of Rs. 16,OO,O00/- the auction purchaser deposited 1/4th of the auction money in the Court, he was directed to pay the remaining amount within the said period, on 29.9.1998, filed the application seeking further time to deposit remaining 3/4th amount of the auction price and the learned executing Court extended the time and thus the remaining amount was deposited on 20.10.1998. v Honourable Supreme Court of Pakistan in these circumstances held that the time for the deposit of remaining amount could be extended.
Now coming to the facts of the present case in juxta position with the facts of the case Of Al- Hassan Feeds, as noted above, In this case, the sale was held, on 15.1.2003; 1/4th of the auction amount was deposited on the same day; respondent No. 2 neither deposited remaining 3/4th of the purchase money within 15 days nor filed any application for the extension of time within the said period, or even thereafter, and he, after the expiry of period of two years, on 5.1.2005, without showing any abnormal or extraordinary circumstances, through his counsel, stated before the Court that he wishes to deposit 3/4th of the auction price. Thereupon the learned executive Court, without issuing any. Notice to the appellants, in whose favour,-Valuable rights had accrued by that date, only after obtaining consent of the decree holder bank, allowed the auction purchase to deposit the balance 3/4th of the auction price, .In view, of the above narrative, the facts and circumstances, whereunder it was held by the Hon'ble Supreme Court of Pakistan that extension was justified, are comprehensively absent in the case in hand. There cannot be any cavil to the principles of law laid down in the said judgment, however, it is not applicable under the facts and circumstances of the present case, thus the said judgment does not in any way advance the case of the respondents. Reliance of the learned Banking Court on the case of Al-Hassan Feeds is misconceived.
8. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 21.9.2005 is set aside with no order as to costs. Resultantly, appellants' objection petition filed op 14.1.2005, is also accepted.