MAULVI ANWARUL HAQ, J.- A money decree passed in favour of the respondent No. 1-Bank and against the appellants on 12.5.2000 was put into execution Vide application dated 28.9.2001. Inter alias, (he decree was sought to be executed by the sale of mortgaged property. The mortgaged property was ordered to be sold. As per report filed by the Court Auctioneer, the sale was conducted on 6.3.2004. Lt was knocked down to respondent No. 2 for Rs. 6,26,000/-. The report was filed in Court on 9.3.2004 and there is a note by the reader of the Court that the Presiding Officer had been transferred. He adjourned the case to 10.4.2004. On this date, the auction purchaser filed an application for confirmation of the sale and delivery of possession. Notices were issued to the decree-holder and its counsel for 20.4.2004. On this date, the case was adjourned for reply and arguments on the said application for 6.5.2004. On this date, it was noted that no one is present despite repeated calls. The execution application as well as the application filed by the judgment- debtors and the one filed by the auction purchaser were dismissed in default. This was done by learned Judge, Banking Court-IV, Lahore.
2. On 30.7.2004 a fresh execution application (No. 67/E/2004) was filed by the respondent No. 1- Bank for execution of the same decree, In this application, the factum of filing of the earlier execution application, the sale, the filing of objection petition by the judgment-debtors and dismissal of all the said applications for non-prosecution was mentioned, It was further noted that instead of getting the first application restored, the second application is being filed and it be treated as an integral part of the earlier execution application. The property had already been sold and it be Confirmed. Prayer for further execution was also made.
3. The learned Presiding Officer was not present on the said date and he took up the case on 23.8.2004. On this date, the learned counsel for the decree-holder was present. The execution application was registered. Leamed counsel for the appellants also put in appearance and moved an application for restoration of the objections which stood dismissed for non-prosecution. This application was replied and resisted. The matter was taken up on 25.11.2004. On. This date, the counsel for the appellants made a statement before the Executing Court that since the , objections as well as the execution petition were dismissed in default on 6.5.2004 and since the decree-holder has filed a fresh execution petition, therefore, he will also file a fresh objection petition and the application for restoration of objections was not pressed. The application was disposed of accordingly. Thereafter, an objection petition was filed, It was resisted by the decree-holder as well as the auction purchaser. On 4.2.2005, we find that the case was adjourned for arguments to 23.2.2005 subject to costs of Rs. 1,000/- to be paid by the appellants. On 23.2.2005 the case was adjourned again with a Cots of Rs. 1,000/- to 25.3.2005 for production of some receipts in accordance with an order of the Hon'ble Supreme Court of Pakistan referred to therein. On 15.3.2005 there was an office note that a sum of Rs. 62,600/- has been deposited in the Court. The case was adjourned to 23.2.2005 for arguments as well as for some further payment. On 16.3.2005 it was observed that the appellants had deposited 10% of the sale price and the should deposit remaining 10% on 22.4.2005. There is an office note that the said amount has been deposited. This fact was also noted in the order dated 12.5.2005, On 20.10.2005 it was stated on behalf of the appellants while filing an application in terms of Rule 89 of Order XXI, CPC that they have already deposited 20% and that they are prepared to pay the remaining decretal amount and also 5% compensation to the auction purchaser. This application was replied on 20.12.2005. Lt was withdrawn on 23.1.2006 with the assurance that they are ready to pay 5% compensation to the auction purchaser. Vide order dated 25.1.2006 the objections were dismissed.
4. Learned counsel for the appellants contends that since execution petition itself was dismissed for non- prosecution, the proceedings taken therein including the process of sale terminated and the learned Executing Court had no jurisdiction to confirm the sale in the second application. He also questions the validity of the reasoning of the learned Executing ^Court while dismissing the objections. Learned counsel for the decree-holder-Bank as also for the auction purchaser contend that the process of execution having been competently commenced, it will continue till such time that the decree is fully satisfied. The precise contention is that the second application was not to be treated as a fresh application but as a continuation of the process already started.
5. We have gone through the records of the learned Banking Court, with the assistance of the learned counsel for the parties. We have already noted above the details -of the proceedings that took place in the first application and then in the second application. The sale was conducted in execution of the decree with the intervention of the Banking Court and it is but apparent that the learned Banking Court opted to follow the procedure laid down in CPC for the said purposes and preliminary process was followed and consequently the sale was conducted on 6.3.2004. The objections were filed well in time on 20.3.2004. The auction purchaser also filed an application on 8.4.2004 for confirmation of sale and delivery of possession. The sale having been completed, subject to the deposits to be made in terms of Rules 84 and 85 of Order XXI, CPC. Rule 92 of the said Order XXI; CPC will come into play, It lays down that where no application is made under Rule 89.
Rule 90 or Rule 91 (Order XXI, CPC) or where such application is made and dis-allowed the Court shall make an order confirming the sale and thereupon the sale become absolute. To our mind, once a sale has been completed then unless and until it is set aside in terms of Rule 89, Rule 90 or Rule 91 read with Rule 92 (2) of order XXI, CPC th;e Executing Court is bound to pass an order for confirmation of the sale whereupon it is to become absolute, It is but obvious that the learned Executing Court while should dismissing the execution application and other application for non- prosecution was oblivious of the said mandatory provision of law and instead of passing proper orders under Order XXI, Rule 92, CPC, proceeded to dismiss all the applications for non-prosecution.
Apart from this glaring illegality, we find that on 12.4.2004 the auction purchaser filed an application for confirmation of sale and delivery of possession. This was adjourned to 20.4.2004. On this date, it was this application which was ordered to be listed on 6.5.2004 for reply and arguments. However, the learned Banking Court proceeded to dismiss the execution application as well as the objections for non-prosecution. Thus, from whatever angle seen the said order dated 6.5.2004 is wholly without jurisdiction. We are also in agreement with Kh. Saeed-uz-Zafar, Advocate/learned counsel for the auction purchaser that the second application was to be treated to. Be in continuation of the process already commenced in the matter of execution of the decree passed in favour of the decree-holder-Bank.
6. Coming* to the impugned order, the learned Executing Court proceeded, in the first instance, to hold the objection petition to be time-barred with reference to sale that took place on 6.3.2004 and thereafter in somewhat mechanical manner proceeded to dispose of the other objections. .A plain reading of the order gives the impression that the learned Executing Court having already held the objections to. Be barred by time proceeded with the same mind set while rejecting the other objections. After correctly holding that the second execution application could be entertained, the logical conclusion was that it was in continuation of the first application. The objections had been filed in time. The manner in which these were withdrawn has already been noted by us above. The learned counsel had expressed that since a fresh execution application has been filed, he will file objection petition, It is but apparent that the learned counsel was under the impression that a fresh process for execution in the matter of the said property will be started and he will file objections accordingly. However, this was not to be so. Notwithstanding thd fact that the application for restoration was withdrawn, we have already found above that the order dismissing the execution application as also the objections for non-prosecution was without lawful authority, It will, thus, be deemed that the objections filed on 20.3.2004 are pending. The replies have already been filed.
These objections need to be decided afresh in view of the observations made above.
6. The EFA is accordingly allowed. The impugned order dated 25.1.2006 passed by learned Judge, Banking Court-IV, Lahore, is set aside. The result would be that the execution petition already filed by the decree-holder-Bank as also the objections filed by the appellants shall be deemed to be pending. The learned Executing Court shall take up the said objections and decide the same after hearing all concerned. For this purpose, the parties shall appear before the learned Judge, Banking Court-IV, Lahore, on 10.4.2007. The records and a copy of this judgment be immediately remitted to the said learned Judge. No orders as to costs.