1. MAQBOOL BAQAR, J.---Through the above appeal, the appellants have assailed the order 22-3- 2004, whereby Banking Court No.1 at Karachi, confirmed the sale of the appellant's Property bearing Nos.145 and 146, Shamboo Nath Road, Saddar, Karachi in favour of the respondent No.2, in Ex.
2. Application No.5 of 2002 and ordered issuance of sale certificate accordingly. The brief facts of the case are that in the aforesaid execution application, filed by the respondent No.1, Bank, for enforcement of a decree passed by Banking Court No.1 at Karachi, in Suit No.56 of 1993, the Banking Court after complying with the relevant provision of Law and publishing a sale proclamation in that regard, held a public auction of the aforesaid property on 28-6-2003, on which date out of the three participants, two offered to purchase the property at Rs.1,57,00,000 and Rs.1,37,10.000 respectively, whereas, one Muhammad Umar Memon offered to purchase the property at a price of Rs.1,73,20,000 who deposited Rs.4330,000 towards 25% of the price offered by him. However, on an application submitted by the applicant/judgment-debtors, praying for an order for fresh auction, or in the alternative to permit the judgment-debtors to sell the property, on the ground that the price offered by Muhammad Umar Memon was inadequate, the Court allowed the judgment-debtors to bring a buyer, whose offer shall be considered by the Court and postponed the consideration of the highest bid till after 30 days. But the judgment-debtors instead of procuring any better offer, on 30-7-2003 through an application under section 151, C.P.C., sought further postponement of confirmation of the highest offer by at least one month if not more. A notice was ordered on the said application on the same date, on account of the delay in acceptance of his bid, the highest bidder on 8-8-2003 applied for refund of the amount of Rs.43,30,000 initially deposited by him. The application was allowed by the Banking Court on the same day who also ordered for fresh sale and directed the decree-holder bank to deposit the publication charges in that regard within seven days, such auction was fixed for 24-9-2003 and was so held after publication of the sale proclamation as required by law. However, except for respondent No.2, who offered to purchase the property at Rs.1,64,00,000 and deposited Rs.45,00,000 being 25% of the amount offered, none else came forward for the bidding. By order dated 17-1- 2004, respondent No.2 was declared the highest bidder and was directed to deposit the balance amount which direction was duly complied by respondent No.2 by depositing the amount within the prescribed time. On 14-2-2004, an application under Order XXI, rule 90, C.P.C. Was filed on behalf of two strangers, claiming therein that they are the legal heirs of late Abdul Wahab Khan, the purported co-owner of the property in question. By order dated 17-3-2004, the Banking Court was pleased to dismiss the aforesaid application, and at the request of respondent No.2, who offered to enhance his bid to Rs.1,73,25,000 allowed him to deposit the balance/differential amount within three days and adjourned the case to 22-3-2004 for consideration of the auction proceedings. The differential amount was accordingly deposited by respondent No.2. On 22-3-2004, when the case was fixed before the Banking Court, one Wasi Khan submitted an offer for purchase the property for a sum of Rs.1,95,00,000 and the Banking Court allowed him to deposit with the Court 25% of the price offered by him during the course of the day, so that, his offer may be considered on that very day. However, the record reveals that Wasi Khan failed to make such deposit till 3-00 p.m. And the Banking Court was thus pleased to confirm the sale in favour of respondent No.2 through the impugned order. The only ground urged by the appellants for setting aside the impugned order was that the price of Rs.1,73,25,000 against which the sale has been confirmed is not an adequate price and that in the auction proceedings held on 15-1-2004, since the respondent No.1 was the only bidder, and none else had come forward to bid for the property in question, the Court ought to have ordered re-auction of the property. It is further submitted that the respondent No.2 during the auction proceedings had offered to purchase the property for Rs.1,64,00,000 and not for Rs.1,73,25,000, at which price sale has been confirmed in his favour. It is also submitted that the offer of Rs.1,95,00,000 procured by the appellants and submitted before the Banking Court was not accepted. Heard the learned counsel for the parties and perused the record of the case. As noted above, the property was initially put to auction on 28-6-2003 and the highest bid fetched was of. Rs.1,73,25,000, however, since on account of postponement of confirmation. Of the bid at the request of the appellants, the highest bidder withdrew his offer and fresh auction of the property was held on 24-9-2003 when only respondent No.2 came forward and offered to purchase the property at Rs.1,64,00,000, and was by order dated 17-1-2004 declared the highest bidder. Although, Wasi Khan did not participate in the auction proceedings and submitted his bid on 22-3-2004, he was still allowed to deposit 25% of the amount offered by him, but he failed to make such deposit and the Banking Court in the circumstances, rightly confirmed the sale in favour of the respondent No.2, who in the meanwhile, has enhanced his offer to Rs.1,73,25,000 neither did the respondent No.2 defaulted in making payment of the purchase price at any stage nor have the appellants/judgment-debtors at any point in time earlier or through the above appeal even alleged any fraud and/or irregularity either in the publication of sale proclamation or the conduct of the sale proceedings. The application under Order XXI, rule 90, C.P.C. (C.M.A. No.166 of 2005) was filed before this Court in the above appeal on 10-2-2005 in addition to being barred by limitation was, even otherwise not maintainable and was liable to be dismissed in view of the judgment of the Honourable Supreme Court in the case of Hudabia Textile Mills and others v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC 512, where the Honourable Supreme Court held that the Court would be wrong in refusing confirmation on the ground that subsequent to the sale, the decree had been set aside.
3. It was for the foregoing reasons that by short order dated 2-2-2006, we dismissed the above appeal in limine along with the listed applications including the above referred application. C.M.A.
4. No.1885 of 2005 apparently filed by/on behalf of Mr. A.R. Siddiqui, Advocate for withdrawal of Vakalatnama was dismissed for the reasons that neither was it disclosed in that application as to whether the requisite notice was sent to the appellants nor was a copy of any such notice annexed to the application and C.M.A. No. 357 of 2004, under Order XXXIX, rules 1 and 2, C.P.C. Filed on behalf of the appellants was dismissed in view of the dismissal of the appeal.