' SYED HAMID ALI SHAH, J.---Suit filed by the respondents against the appellants, was decreed for a sum of Rs,1,85,87,069 vide judgment and decree dated 6-3-1999. Learned Executing Court, in the course of execution of the decree, ordered sale of the mortgaged property, through auction which was conducted on 13-6-2005, wherein the highest bid of respondent No,4, for Rs,54,60,000 was accepted by the Court Auctioneer. The appellant filed objections for setting aside the auction.
Learned Banking Court vide impugned order dated 8-9-2005 dismissed the objection petition and confirmed the auction in favour of the highest bidder, hence this appeal.
2. It is contended by the learned counsel for the appellants that proclamation of sale was not drawn after notice to the appellants within the contemplation of Order XXI, Rule 66, C.P.C. Case of "Muhammad Hassan v. Muslim Commercial Bank Ltd. And 3 others" 2003 CLD 1693 was referred to contend that compliance of provisions of rule 66 (ibid) are mandatory. Reserve price has not been fixed according to prevalent market value of the property. It was contended that learned Executing Court has relied upon the valuation of Iqbal A. Nanji & Company, which was prepared by evaluator, during February, 2004, while prices of property, thereafter increased enormously. He emphasized that reserve price was fixed at a very low rate. It is further contended the proclamation of sale was published in daily "Karnama" Lodhran, while property is situated at Vehari. The newspaper has limited circulation and due to lack of publicity, the prospective buyers have not come forward to bid. Case of "Mst. Zarina Bibi v. Allied Bank Ltd." 2003 YLR 3274 was relied upon to support this contention. Learned counsel went on to argue that property has been sold at a throw away price.
Decree-holder had itself admitted the price of mortgage property at Rs,1,84,97,000 on 14-4-2000, when decree-holder opposed the confirmation of first auction. Learned counsel went through auction report and submitted that report transpires that 1/4th price has not been paid at the fall of hammer. Failure to pay the 1/4th price at the fall of hammer, nullifies the auction. The outcome of such auction is re-sale, as sale has become invalid. Learned counsel in support of this contention has referred to the cases of "Messrs Dawood Flour Mills and others v. National Bank of Pakistan" 1999 MLD 3205 and "Afzal Maqsood Butt v. Banking Court No,2, Lahore, and 8 others" PLD 2005 SC 470 = 2005 CLD 967. Learned counsel has submitted that property is at Vehari and judgment-debtors are residents of Kot Addu while citation is published in the local newspaper of Lodhran. This fact alone renders the sale invalid. Learned counsel contended further that objection petition was dismissed without proper investigation. It was mandatory for the court to record evidence after framing of issue, on the objections of the appellant. Learned counsel in this respect placed reliance on the case of "Mir Wali Khan and another v. Manager A.D.B.P. Muzaffar Garh and another" PLD 2003 SC
500. Learned counsel summed up his arguments by submitting that auction proceedings as recorded by the Court Auctioneer, reflect that nine persons joined auction but only three persons have participated in the bid. No reason was mentioned that why other six persons have not participated in the bid, despite being present in auction proceedings.
3. Learned counsel for the respondent-Bank has submitted that the appellants have been appearing in the execution proceedings and objections raised on the auction proceedings were not urged before the Court at the relevant time. He added that dismissal of the application for fixation of the reserve price creates the bar of estopple against the appellants. He has submitted that there were five attempts for the sale of the property and after hectic efforts, price of the land was fetched at Rs,54,60,000. This is the maximum price on which the property can be sold. He has stood behind the impugned order and has submitted that the impugned order was passed by the Court by applying conscious mind and after perusing relevant record. Learned counsel has supported his contention by referring the case of "Habib Bank Limited v. Messrs Dost Muhammad Cotton Mills and 3 others" PLD 2000 Karachi 186.
4. We have heard the learned counsel for the parties and perused the material available on the record.
5. Instant proceedings are pending since 21-4-1999, while the decree for Rs,1,85,87,069 along with mark-up was passed as far back as on 6-3-1999. The decree-holder has not reaped the fruit of the decree despite the lapse of more than 8 years. The execution proceedings have a chequered history. The property was put to auction on 28-9-1999 and successful bidder gave the highest bid of Rs,37,00,000 but auction-purchaser failed to deposit 3/4th amount. Khalid Mahmood Akhtar successful bidder applied for withdrawal of 1/4th amount deposited by him. The auction conducted on 3-3-2000 could attract only one buyer. Muhammad Din who showed his willingness to purchase the property for Rs,18,00,000. On 10-10-2003 no buyer came forward to participate in the bid, so was the case when auction was fixed for 24-10-2003. The proceedings were adjourned on various dates, for two years and two months without any justification and it was on 10-8-2000 when court observed that neither the stay is operative, nor any objection petition is pending. Resultantly order for the execution of the decree was made. The petitioner during this period, moved an application for fixation of the reserve price on 25-12-2003, which was dismissed for non-prosecution on 15-2- 2004. The appellants filed objection petitions as and when auction was conducted including objections, subject-matter of this appeal, regarding the auction conducted on 13-6-2005 when the highest bidder offered Rs,54,60,000.
6. Appellant has asserted that notice under Order XXI, Rule 66, was not served, while the record speaks otherwise. The first order passed in the execution proceedings is order dated 24-4-1999 which pertains to a notice under Order XXI, Rule 66, C.P.C. Learned counsel for the appellants entered appearance on the next date of hearing and the order sheet further reflects that notices were served upon the appellants and receipt to that effect is also available on the record.
7. The stance of the appellants that reserve price has been fixed at a too low rate, stands negated by the response of the bidders which they have shown regarding purchase of property in auction.
The auction was conducted from time to time on various occasions and no one came forward, to offer for purchase of the property at a price on which the appellants evaluated the property. The judgment-debtor has not made a single attempt to bring forth any buyer for the purchase of the property at the rate on which they evaluate the property. The auction proceedings remained pending from 1999 to June, 2005 but the appellants have not brought any perspective buyer for the purchase of the property. The appellants sought the reserve price to be fixed through filing of an application, which was dismissed for non-prosecution. The appellants made no effort to get his application restored. The appellants had the remedy to pay to the auction-purchaser, 5% above the auction price and get the sale set aside. The appellants have not come forward with open offer, which indicates that property was sold at best possible price.
8. Mere inadequacy of sale price in court sale, is no valid ground for setting aside the sale. Moreso, when every possible effort is made to fetch maximum price. A buyer is always A reluctant to purchase a property in Court sale as it involves litigation, it is time consuming and has the element of uncertainty. The Court sales do not fetch market price for the reason and sale through auction cannot be set aside on this score alone.
9. Order dated 1-10-2003 requires mentioned where the date for auction was fixed for 1-10-2003 with the consent of both the parties. Failure to seek restoration of the application and consenting to the auction, create the bar of estoppel against the appellants.
10. Another objection which the appellants have raised is that the date of conduct of auction, was not notified to them. This is another false assertion. The Court-Auctioneer has placed on the record a copy of the notice issued to the decree-holder and also to the judgment-debtors. The envelope received back by the Court-Auctioneer has been placed on the file. The specific endorsement by Postman that addressees are not available at their addresses and have gone away from the town, reflects that the appellants were not receiving notices willingly. The notices were also issued to them, through UMS and registered A.D. The appellants remained represented throughout and mostly their advocates appeared in the execution proceedings. Pleading no knowledge of the auction proceedings is a mere excuse and does not require consideration.
11. Adverting to the objections of the appellants that the highest bidder has not deposited 1/4th price at the fall of the hammer. The auction in the course of execution by the Banking B Court, in appropriate cases can be made through deviation from Civil Procedure Code. Reference in this regard can be made to "Muhammad Ikhlaq Memon v. Zakaria Ghani and others" PLD 2005 SC 819 and "Shaukat All Mian v. Trust Leasing Corporation Ltd. Through Chief Executive and 4 others" 2002 CLD 1071. The appellants as is evident from the report of the Court-Auctioneer, deposited 1/4th price on the same day.. 1/4th price was paid through Bank Draft and Cheque No,2695180 drawn at Union Bank besides payment of the amount of Rs, 10,000 deposited as security. Non-payment of 1/4th amount on the fall of the hammer does not vitiate the sale conducted under the provisions of Ordinance, 2001, as the law permits the execution of the decree according to the manner C and desire of the decree-holder. In the prevailing situation payment of huge sum of money in cash is not practical and logical. Learned Division Bench of this Court in the case of Shaukat Ali Mian (supra) has held as under:-- "18. We may, also like to observe that the value of immovable property now runs into millions of rupees and in this case the 1/4th amount of bid money was Rs,52,50,000. There is merit in the contention of the learned counsel for the auction-purchaser, that it was neither practicable nor desirable from the security view point that the auction-purchaser should have carried the aforesaid amount in cash. We may further observe that an auction-purchaser cannot anticipate the exact amount which he may require for payment of 1/4th of the bid money in case he succeeds. Therefore, it does not appear to be realistic practicable and logical that an auction- purchaser should carry huge unknown amount of cash with him. Therefore, the, provisions of rules 84 and 85 are to be construed in view of the changed circumstances. We, accordingly, hold that payment through cheques of 1/4th of the bid money and the remaining 3/4th of the sale price, was a valid tender within the contemplation of rules 84 and 85 of Order XXI of the Code of Civil Procedure."
8. Payment of 1/4th price by the auction-purchaser to the Court-Auctioneer on the day of auction through Bank draft and cheque, could be for the reason that purchaser could not anticipate the bid money. Such payment in the prevailing circumstances cannot be considered to be taken due payment, if the cheques were encashed in ordinary course.
9. It has been held by the Honourable Supreme Court of Pakistan in the case of Muhammad Ikhlaq Memon (supra) that Banking Court, in appropriate cases, can make a departure from provisions of C.P.C., while executing decree. The Apex Court upheld the sale of property, when in the fourth attempt, only one bidder came forward and enhanced the bid from 2,32,80,200 to 2,41,00,000 before the Executing Court.
12. The appellants have raised frivolous objections, which the learned Executing Court has answered in a lawful manner. The impugned order of Executing Court is devoid of any illegality or legal infirmity. The appellants have filed objections as and when the auction was conducted. The matter regarding sale through auction of the property remained pending for D about 8 (eight) years but the appellants have not come forward even on a single occasion to satisfy decretal, amount. There were incentive packages which the State Bank of Pakistan had announced for payment of long outstanding defaults in Bank loans. The appellants have not even availed the incentives offered to them. The objections are filed to delay execution, which speaks nothing but mala fide of the appellants.
13. Another aspect of the case cannot be ignored as well. The appellant has filed the instant appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. A notice to the decree-holder-Bank is an essential requirement. The appellant has filed this appeal, without complying with the mandatory requirement, which renders the appeal incompetent.
14. Viewing the case of the appellants from any angle, this appeal has no merit and is accordingly dismissed.