MUHAMMAD SAIR ALI, J.---Suit of Muslim Commercial Bank Limited (the Bank) was decreed against respondents Nos.2 to 9 for Rs.1,32,60,685 on 15-11-2003 by the learned Banking Court No.1 Lahore. In execution proceedings, the mortgaged property i.e. Bunglow/Plot No.82-U, Phase 2, Defence Housing Authority was ordered to be sold through auction with the reserve price at Rs.10 millions.
Respondent No.12 was appointed as the Court auctioneer who submitted his auction report on 28- 9-2004. In this report, the Court autioneer reported that after due publication of the auction schedule, he on the day of auction i.e. 27-9-2004 faced threats from 7/8 persons of the judgment- debtors telling him not to hold auction but at the time of the auction, no one was present on behalf of the decree-holder or the judgment-debtors. As per the report, auction was held wherein six persons participated. Appellant's bid at Rs.1,09,00,000 being the highest was declared to be successful. And that after conclusion of the auction proceedings in about 30/35 minutes (10.00 a.m.
To 10.30/35 a.m.), two of the bank's representatives came along with six prospective bidders demanding participation in the auction. Their request to recommence the auction proceedings was denied. The appellant deposited 25% of the bid amount through pay orders and the Court auctioneer thus recommended acceptance of appellant's bid and issuance of the sale certificate in his favour.
2. On 6-10-2004, the decree-holder filed an objection petition under Rule 90 of Order XXI, C.P.C. On the grounds that neither proper publication was made nor was the auction held by the Court auctioneer at the spot or as per the schedule. Further that the Court auctioneer in his report admitted that representatives of the decree-holder were not present and he also faced threats.
And that the auction was reported to have been completed in thirty minutes; in which time the auction proceedings could not have been possibly completed. And that the auction price was too low, unfair, unwarranted and was result of mala fide, favourtism and other extraneous considerations. Further that the auction was non-transparent, hasty, secretive and legally defective.
3. Through the impugned order dated 6-10-2004, the learned Judge Banking Court No.1 Lahore accepted the objection petition and directed re-auction through two Courts auctioneers instead of one and fixed 21-10-2004 for the auction report.
4. The above order dated 6-10-2004 was impugned through this appeal by the appellant claiming to be the successful bidder of the auction dated 27-9-2004.
5. During motion hearing on 18-10-2004, the respondents were notified to appear. Respondent No. r is represented through Mr. Hassan Nawaz Makhdoom, Advocate. Respondents Nos.2 to 9, despite publication of proclamation in the newspaper, failed to appear. They are thus held ex parte.
6. On 16-11-2005, status quo order was granted on the appellant's C.M. No.1343-C of 2005 and was continued through order dated 15-2-2006.
7. The learned counsel for the appellant contended that having deposited 25% of the bid amount, the appellant had a right of participating in the objection proceedings and having been declared a successful bidder, sale in his favour should, have been confirmed instead of ordering re-auction.
Reliance was placed upon the judgment passed in titled "Nasir Mushtaq Sheikh v. Platinum Commercial Bank Limited" E.F.A. No.33 of 2004: Contrarily the learned counsel for the respondent-Bank stated that pursuant to the impugned order dated 6-10-2004 directing re-auction of the mortgaged property, re-auction was held with reserve price of Rs.15,000,000. The appellant did not participate in this re-auction. The successful bidders wherein deposited the required bid amount i.e. 25% of the auction price but failed to deposit the balance sale price as per the requirements of law and the terms of auction. And that the judgment-debtors i.e. Respondents Nos.2 to 9 in the meanwhile settled the decretal debt on 5-8-2005 and the mortgaged property was redeemed. Further that to his information, the property had already changed many hands. Relying on the judgment of the Honourable Supreme Court of Pakistan passed in the case of "Afzal Maqsood Butt v. Banking Court No.2 Lahore" 2005 CLD 967, the learned counsel contended that no right came to vest in the appellant merely on the deposit of 25% of the bid money. And that in the case of "Messrs Rasu Food Industries and another v. Messrs Pakistan Industrial Leasing Cooperation Limited and others" 2005 SCM R 1643, the Honourable Supreme Court of Pakistan held that the property having been sold and resold and process having gone much ahead, no relief could be granted.
8. Heard.
9. The reliance of the learned counsel for the appellant on the judgment dated 16-5-2005 passed in EFA No.33 of 2004 titled "Nasir Mushtaq Sheikh v. Platinum Commercial Bank Limited" is inapt. In this case, the auction-purchaser had deposited the entire sale price on being declared as the successful bidder and the impugned orders of the learned Banking Court accepting the objection petition were held to be "sketchy, devoid of reasons and result of non-application of judicial mind."
The impugned Qrder in the present case is a well reasoned order and the auction report on its face also appears to be collusive and mala fide. The Court auctioneer himself admitted in the report that at the time of auction, neither any of the representatives of the decree-holder nor those of the judgment-debtor were present. But two officers of the judgment-debtor arrived at 10-35 a.m. Along with six prospective bidders seeking to participate in the auction proceedings but were denied the participation in the auction. The learned executing Court thus held that the refusal of the Court auctioneer to allow the prospective bidders arranged by the decree-holder to participate in the auction was improper and in the prevailing circumstances and the facts surrounding the auction, completion of the auction proceedings in thirty minutes (between 10-00 a.m. To 10-30 a.m.) was neither possible nor probable wherefor the possibility that no auction was held and the report was collusively completed. In our opinion, no exception can be taken to the impugned order.
Furthermore the Honourable Supreme Court of Pakistan in the case of "Afzal Maqsood Butt v. Banking Court No.2 Lahore" 2005 CLD 967 held that "the bid in auction is only an offer and without the confirmation of sale, it does not create any right in the property in favour of the successful bidder..................... " The appellant therefore, cannot claim a vested right in confirmation of the sale in his favour for the purported reason of being successful in dubious auction proceedings.
10. It is also pertinent that prior to the grant of status quo order by this Court on 16-11-2005, the mortgaged property had been re-auctioned as per the impugned order dated 6-10-2004. The successful bidder therein had also deposited 25% of the auction price. The appellant did not participate in this auction. But the successful bidder of this second auction failed to deposit the balance sale price as per the learned counsel for the respondent-Bank. However, the judgment- debtors settled the decretal debt on 5-8-2005 and the mortgaged property was accordingly redeemed.
11. The learned counsel for the appellant did not deny any of these facts and was unable to controvert that the process had become irreversible and no saleable asset remained to appease the purported claim of the appellant except for the return of 25% deposited by him which had already been directed by the learned Banking Judge in the impugned order. We also find that the decretal debt having been settled by the judgment-debtors in the meanwhile and the property redeemed, the execution proceedings completed on satisfaction of the decree. The appellant cannot be held to be entitled to any legitimate relief under the provisions of law. This appeal is therefore, dismissed with no order as to the costs.