' MAULVI ANWARUL HAQ, J.~ The facts as gleaned from the record with the assistance of learned counsel for the parties are that a suit filed by respondent No,9 (Bank) was decreed against respondents Nos'. 1 to 8 by learned Judge Banking Court-IV, Lahore, on 15-10-1998. R.F.A. No,92 of 1999 brought by the said judgment debtors was dismissed by this Court on 7-12-1999. The decree- holder filed execution proceedings. The sale of two plots of land measuring 2 kanals, 14 marlas and 272 Sq. Ft. And two Kanals, 7 Marlas 272 Sq Ft. In village Thatta Khuda Yar, Tehsil Ferozwala District.
Sheikhuptira, along with constructions plant, machinery, fittings and fixtures, etc. Was ordered.
Notice was issued to the judgment debtors. On 23-2-1999, the case came up in presence of learned counsel for the decree-holder and for the judgment debtors. Some schedule filed by the Court auctioneer was approved and a report was called for 3-5-1999. According to this report no body took part in the auction. On 19-5-1999, the case came up in presence of the learned counsel for the decree-holder and the Court auctioneer. It was observed that according to the report machinery is not present and only plot is there. The Court auctioneer was directed to prepare a schedule and file the same on 24-5-1999. The case was then taken up on 15-4-1999 in presence of the learned counsel for the decree-holder, the judgment debtors and the Court auctioneer. This was done pursuant to an application filed by the judgment- debtor under Order XXI, rule 66, C.P.C.
It was, inter alia, submitted before the learned Executing Court on behalf of the judgment debtors that the decree has been passed in the sum of Rs, 1,00,42,411.66 while the surveyor/evaluator of the respondent-Bank valued the property at Rs,14.179 million and Rs, 12.068 million. Learned Executing Court noted that in the proclamation reserved price was mentioned as Rs, 13,00,000. The Court auctioneer was confronted who admitted that this was done inadvertently and he intended to declare the reserve price before the commencement of sale. We deem it appropriate to reproduce the operative part of the order dated 15-4-1999 hereunder:-- ' "The reading of the application filed on behalf of Mr. Ahmad Nadeem would reveal that he moved the application with respect to the reserve price which according to him is grossly inadequate in view of the report of the evaluators. After the admission of' the learned counsel for the decree- holder the reserve price should be Rs,14.179 million. I have directed the Court auctioneer to announce the reserve price at the site as Rs,14.179 million and if he receives that reserve price or above he should sell the property and his effort should be to get the maximum price of the property so that the judgment debtors should not suffer any loss. Even the learned counsel who appeared to argue this petition would inform, if the judgment-debtor has got better customer who can give appropriate bid for the property and that person can take part in the auction proceedings after complying with the directions and conditions laid down in the schedule of auction. "
' With the above findings the application was, however, dismissed. Thereafter the case was taken up on 24-5-1999 in the presence of the learned counsel for the decree-holder and the Court Auctioneer who was directed to file schedule. This schedule was approved on 24-5-1999 as none had turned up for the judgment-debtor. According to the report filed on 22-7-1999 no one has taken part in the auction. Thereafter the case was adjourned to a number of occasions. On 28-9- 1999, a schedule was filed when only the Court auctioneer was present which was approved.
According to the report filed on 13-12-1999, the auction could not take place. The Court auctioneer filed schedule on 3-2-2000 which was approved when none was present. As per report dated 24- 3-2000, the auction could not take place. The case was additionally adjourned for the reasons that according to the order passed in the said RFA No,92 of 1999, there was a chance of compromise.
The case was adjourned for the said reason on 12 occasions and only one date i.e, 12-4-2000 it has been recorded {{URDU TEXT}} Otherwise the case was taken up only in presence of the counsel for decree-holder and was being adjourned at his prayer. On 23-10-2001, it was stated that no compromise has taken place. The Court auctioneer was summoned for 6-11-2001. On 6-11-2001, learned Executing Court proceeded to pass the following order:- "6-11-2001.
' Present Mr. Hashtam Khan, Advocate on behalf of counsel for the DH and Court auctioneer.
' He states at the bar that he had seen the place, the property to be auctioned. According to him, the machinery has been removed and only the land with boundary wall and "malba" however, is existent. According to him its price will not fetch more than four lacs of rupees. Two lacs of rupees of each of the property is fixed as reserve price. The learned counsel for the D.H. Has no objection to it. Schedule filed. Approved. Auction shall taken place on I 8-12-2001. Report on 20-12-2001. "
' On 22-12-2001, the Court auctioneer only appeared and stated that because of Eid Holidays the auction could not be conducted. On 13-2-2002; the Court auctioneer appeared and opined that the machinery has been removed. The decree- holder was called upon to file evaluation report on 27-2-2002. On 27-2-2002, the following order was passed by the learned Executing Court:- "27-2-2002:-- ' Present. Court auctioneer.
' Since the auction is not taking place, the reserve prices of both the properties are brought down to 1.5 lacs of rupees each. Fresh schedule of auction filed and report be submitted on 30-4-2002. The order as to delivery of possession and assistance of police be made available, as ordered earlier.
Robkar be issued to the S.H.O., Police Station concerned."
' On 30-4-2002, the Court auctioneer reported that Tariq Masood (present appellant) has made highest bid of Rs,3,30,000 for both the plots which amount has been paid by means of cheque. On 3-6-2002, the auction was confirmed. On 4-6^2002, the sale certificate was issued and on 5-6- 2002, the possession was got delivered to the appellant. On 15-6-2002, a direction was issued to WAPDA to receive its dues and to restore electric supply. On 15-6-2002, respondent No,l filed an application purporting to be under section 12(2), C.P.C. And section 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001. After narrating all the said facts, it was stated that on 8-6- 2002, the appellant has dispossessed them from the plots . And taken over possession from Chaukidar. The machinery has also been, removed and is still being removed. It was specifically narrated that the entire proceedings are based on fraud committed by the Court auctioneer who managed to get the property to be sold for petty amount of Rs,3,30,000. This application was resisted by the appellant and has been allowed by the learned Executing Court vide order dated 29-7-2002.
2. Mr. Hameed-ud-Din Chaudhry, Advocate/learned counsel for the appellant contends that the impugned order passed by the learned Executing Court is not only illegal but is without jurisdiction.
According to him, after the confirmation of sale and delivery of possession, the learned Court had become functus officio and could not have entertained the application filed by the judgment- debtors. Further contends that, in the first instance, no fraud was pointed out. Proceeds to argue that his client having purchased the property in a Court auction, the sale could not have been set aside on the ground of inadequacy of consideration. He relies on the cases of Hudabia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC (sic); Speciality Traders v.
Firdous Textile Mills Ltd. 1987 CLC 2109 and Messrs United Bank Ltd., Karachi v. Mst. Asma Zafarul Hasaan 1980 CLC 565. Learned counsel for the respondents, on the other hand, contends*that upon the face of the record, the proceedings and the ultimate sale made as a result thereof are coram non judice.
3. We have gone through the records of the learned Executing Court. The details of the proceedings that took place have, already been reproduced above. It will be seen that in the presence of all concerned, a direction was issued to the Court Auctioneer that the reserve price is Rs, 14.179 millions and the property is to be sold at a price higher than the same (order dated 15-4-1999 reproduced above). Thereafter, the entire proceedings took place in the absence of the judgment- debtors. In particular the order dated 6-11-2001 reducing the reserve price from Rs,14.179 millions to Rs,4,00,000 was passed in the absence of the judgment- debtors while the order dated 27-2-2002 further reducing the price to Rs,3,30,000 was passed only upon the asking of the Court Auctioneer without any reference to the judgment-debtors or decree-holder. This act of the learned Executing Court which he has himself described as his "Naivety" is not at all warranted by any provision of law relating to the sale of property in execution of a decree. Needless to state that mistake committed by a Court is not to cause prejudice to a party. The result of the impugned order is that the property will be re-sold in accordance with law in execution.
4. Now coming to the said contentions of the learned counsel, nothing turns on the same. A sale in execution of a decree is liable to challenge on grounds available under the law and it was so challenged.
5. It is not simply a question of inadequacy of consideration rather the very basis on which the sale was conducted is found to be illegal on the face of the record. There is no question of a Court becoming functus officio as the objections to a sale can be raised only after the sale has taken place and not before. We have already stated above that the learned Executing Court in its "naivety" proceeded to sell the property evaluated by itself at Rs,14.179 millions for Rs,3,30,000 and further proceeded in a post-haste manner in the matter of confirmation and delivery of possession. It will be seen that on 27-2-2002, while bringing down the price further to Rs,3,30,000, the learned Executing Court even forgot to approve the schedule which apparently the Court Auctioneer prepared in anticipation of further reduction of the price.
6. This EFA is found to be without any force and is accordingly dismissed with costs.