MAULVI ANWARUL HAQ, J.-~ A suit filed by respondent No. 1 against respondents Nos. 2 to 6 was decreed by a learned Judge, Banking Court No. Ill, Lahore, on 8,12.1999 in the sum of Rs. 63,62,466/- with costs and mark-up. The sale of property stated to be mortgaged by the judgment-debtors was ordered by the learned -Executing Court on 7.8..2004. On 5.8.2004 respondent No. 3 filed an application in terms of Order XXI, Rule 83, CPC assuring the Court that a purchaser is available who is ready to pay a reasonable price- of the said property: A notice was issued to the decree-holder.
On 6.8.2004 the sale was postponed and the said judgment-debtors was given one week's time to procure the prospective buyer. The case was adjourned to 18.8.2004. However, the copies of the daily orders show that the case was taken up on 13.8.2004 in the presence of counsel for the decree-holder-Bank and the Court Auctioneer, in was noted that whereas the judgment-debtors have not presented any buyer, one Imran Hussain (respondent No. 7) has filed an application accompanied by a cheque in the sum of Rs. 12,50,000/-. The case then came up on 19.8.2004 in the presence of counsel for the decree- holder-Bank as also of the judgment-debtors and the Court Auctioneer. Imran Hussain respondent No. 7 and one Shujah-ud-Din Alvi presented themselves as prospective buyers, in was stated on behalf of the counsel for the judgment-debtors that the said respondent No. 7 is the prospective buyer, in was also contended that on ten occasions the Court Auctioneer made attempts to sell the. Property but it could not be sold. An offer was made on behalf of respondent No. 7 that he is prepared to purchase the property for a consideration of Rs five million. The decree-holder-Bank made an offer of Rs. Seven million while there is reference to an offer of Rs. 6.400 million by a buyer produced by the decree-holder. Then there is reference to one ShujahTud-Din Alvi who was also interested in* purchasing the property. With the agreement of the decree- holder and the judgment-debtors, an auction was conducted in the Court. The last bid offered by respondent No. 7 of Rs. 8.200 million was found to be the highest and was accepted.
After adjusting the amount already deposited, he was directed to pay the balance within two months.
2. On 20.9.2004 the appellant filed an application under Order XXI, Rule 90, CPC stating that the respondent No. 2 has agreed to selt the said property to the appellant vide agreement to sell dated 30.12.200T. Under the said agreement, a sum of Rs. One million has been paid and possession has been delivered. Under the terms of the said agreement, the appellant was to pay the charges and the mortgage money to the . Bank and for this purpose negotiations were started, in was then stated that upon refusal of the respondent No. 2 to perform its part of the contract, a suit for specific performance has been filed wherein an interim injunction has also been granted, in was then stated that the appellant took note of the proclamation issued for sale of the property on 7.8.2004. in contacted the Bank officials but was informed that the sale has been stayed. Still it. Did appear on the time and at the place mentioned therein but no proceedings took place, in TA/as during the week preceding the said objection petition that the appellant was informed that the property has been sold to respondent No. 7. The auction was stated to be illegal as having not been conducted in accordance with the provisions of Order XXI, CPC as also of Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and that the interests of the appellants have been adversely affected. The granting of two months' time to the purchaser for deposit of the amount was also questioned. The application was contested. This application was taken up alongwith several other applications and dismissed by a learned Judge, Banking Court-Ill, Lahore, on 23.12.2004. The appellant filed EFA No. 35/05 in this Court. This EFA was allowed vide judgment dated 14.4.2005. We deem it appropriate to reproduce the operative para-7 of the said judgment hereunder:- "7. Upshot of the above discussion is that the present appeal is allowed and the impugned ; order dated 19.8.2004, to the extent appellant's objection petition, filed under Order XXI, Rule 90, CPC, was dismissed, it set aside with no order as to costs. Resultantly appellant's said petition shall be deemed to be pending before the Jearned Banking Court, who shall decide the same-after hearing the parties and of course, in accordance with law within a period of two months from today." .
After the remand, the matter was heard again and the application has been "dismissed by the learned Executing Court on 26.1.2006.
3. Learned counsel for the appellant contends that since it is his case that there is an agreement to sell in his favour and further that possession has been delivered to his client thereunder, he can seek the protection of Section 53-A of the Transfer of Property Act, 1882 and as such his client has the locus standi to file the objections. Further contends with reference to a judgment in the case of Navalkha & Sons v. Sri Ramanva Das and others (AIR 1976 SC 2037) that the mere *fact that his client desires to purchase the property is enough to hold that it has the requisite locus standi to file the said objections. Thereafter, he reiterates the said grounds taken in the objections and already noted by us above. -Learned counsel for the decree- holder-Bank as well as -the judgment- debtors and the purchaser (respondent No. 7) draw our attention to the relevant contents of the said remand order passed by this Court to urge that the appellant itself waived the plea based on the agreement and if the agreement is taken out then it is left with no locus standi to file the said objections in terms of Order XXI, Rule 90, CPC read with Section 19 of the said Ordinance, 2001. Our attention is further drawn to subsection. (2) of the said Section 19 to urge that unlike the mandatory provisions of Order XXI, CPC dealing with the sale of property, a Banking Court has wider power which is subject only to the consent of the decree-holder in the matter of execution of thefecree.
4. We have gone through the available records, with the assistance of the learned counsel for the contesting parties. The waiver being relied upon by the learned counsel for the respondents is duty recorded in the judgment dated 14.4.2005 towards the end of para-3 thereof as follows:-- "Learned counsel for the appellant, in rebuttal, stated that in case, the matter is remanded to the Jearned Banking Court for fresh decision of his objection petition, the objector will not raise the plea of agreement to sell while pleading his objection petition, however; reserves his right 'to pursue his.
Remedy before the Civil Court for the specific performance of the said agreement."
It was observed by this Court in para. 6 thereof that the appellant would be bound by the said statement of his learned counsel not to raise the 'plea about agreement to sell.
5. When confronted, learned counsel for the appellant states that he is still bound by the said statement but according to him, even without pleading the agreement, he can question the sale as he did intend to purchase the property and for this he places reliance on the said case of Navalkha & Sons. Having gone through the said judgment, we find that nothing turns on the same in favour of the appellant. The reason being that under Section 19(2) of the said Ordinance, 2001, a Banking Court has been given the direction to execute decree in a~ manner it considers appropriate at the request of the decree-holder. Now there is no denial that the property could not be sold despite several attempts by the Court Auctioneer. This being so, the said effort made by the learned Executing Court whereby a price was obtained which' apart from satisfying the decretal amount was also acceptable to the judgment-debtors cannot be said to be unreasonable. The sale having been made in exercise of said powers of the Banking Court and with the consent of the decree-holder as also of the judgment- debtors, the objection as to two months' time given for the deposit of the balance amount is also not available.
6. Apart from what has been stated above, the said sale does not at all cause any prejudice to the appellant. According to the learned counsel, a suit for specific performance is pending. The sale in favour of respondent No, 7 would not at all derogate from the terms of the said agreement subject to its proof in the Civil Court and the agreement would be enforceable subject to terms of Section 27(b) of the Specific Relief Act, 1877 against the said subsequent purchaser as well. Needless to add that this Court while remanding the case at the earlier occasion as also the learned Executing Court in the impugned order itself has made it clear that the said, orders still not affect the merits of the case for specific performance, statedly brought ,by the appellant. Apart from the above observations of this Court and of the learned Executing Court in the said orders, reference in this behalf be also made to the case of Mohiuddin Molla v. The Province of East Pakistan and 2 others (PLD 1962 SC 119) where it was held by their Lordships that an agreement for sale with the judgment- debtor would bind the purchaser at the Court sale if he had notice of the agreement.
7. Learned counsel then contends that the appellant is being sought to be dispossessed from the property by the auction purchaser. If this is so, he can raise all available objections before the learned Executing Court. The EFA is accordingly dismissed but without any orders as to costs..