MUHAMMAD MUZAMMAL KHAN, J.---Instant first appeal assails order, dated 18-10-2002 passed by the executing A Court, whereby objection petition filed by the judgment-debtor was dismissed being devoid of force.
2. Succinctly, relevant facts are that appellant availed finance facility from the Union Bank Limited (respondent No,1), but failed to repay the same according to the terms of the finance agreement, resulting in filing of suit for recovery of Rs,58,94,903 before the Banking Court-II, Lahore, which was ultimately decreed on 22-10-1998. The decree-holder went in execution and successfully obtained sale of mortgaged property in form of land measuring 2 Kanals, 10 Marlas through auction. The Court Auctioneers appointed by the executing Court, conducted the auction on 28-2-2002 and hammer fell on the highest bid of respondent No,2 of Rs,8,55,000. The Court Auctioneers submitted their report before the executing Court on 9-3-2002 and in the meanwhile two objection petitions under Order XXI, rule 90, C.P.C. Read with section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, one by the decree-holder bank and the other by the judgment-debtor, were filed, simultaneously objecting that the auction was fakely conducted without due publicity at a very low price. Both the objectors were required to deposit 20% of the sale price whereafter the objection petitions were dismissed through a consolidated order dated 18-10-2002. Both the objectors filed their separate appeals, one in hand and the other EFA No,68 of 2003. Appeal by the bank was dismissed for non-prosecution and was not got restored. This appeal of the judgment- dcbtor was admitted to regular hearing and after completion of the record, as now been placed for final determination. Respondent No,2 is represented through his counsel.
3. Learned counsel for the appellant submitted that the executing Court without notice to, the judgment-debtor, required to be issued under Order XXI, rule 66, C.P.C. Proceeded to order auction of his property, without laying terms and conditions of sale. It was further submitted that no reserve price by the executing. Court was fixed which negatively reflected on the auction proceedings. It was argued with emphasis that the Court Auctioneers did not properly publicize the auction by publication of notice in any newspaper and instead opted to rely on few pamphlets 'which too, were not pasted on public places in the vicinity. It was further argued that it is not only the judgment-debtor who is aggrieved of sale of his property at a low price but the decree-holder itself filed objections, complaining that the auction was not conducted in accordance with law.
Referring to bid sheet, it was submitted that valuable land measuring 2 Kanals, 10 Marlas situated in Mouza Bhogiwal, District Lahore was being auctioned but for purchase of this land, only three hand picked persons, came forward to participate in the auction which in itself was enough to annul the proceedings conducted by the Court auctioneers. According to the learned counsel for the appellant, proceedings of the Court Auctioneers revealed that whereabouts of the participants were not mentioned so much so the reserved price by the participants was paid in cash which shows that those persons were party men of the claimed highest bidder. Tenor of bidding was also relied to show that the second bidder namely, Zeeshan Taimoor allowed the bid of respondent No,2 to be accepted with a margin of only Rs,2,000. Valuation table of the collector prepared for registration of documents was produced in support of the stance that even the highest bid of respondent No,2 was low than the price shown in this table. The precise submission was that the mortgaged property of a high value, was sold out of collusion, to the disadvantage of the judgment-debtor, as well as the decree-holder.
4. Learned counsel appearing on behalf of respondent No,2 refuted the arguments of the appellant, supported the impugned order and urged that notice under Order XXI, rule 66, C.P.C. Was issued to the judgment-debtor on 23-10-1999, but he intentionally avoided to join auction proceedings. He further submitted that auction was held on 26-2-2002, whereas the objection petition was filed on 16-4-2002, hence the same was barred by limitation provided by Article 166 of the Limitation Act, 1908. It was claimed on behalf of respondent No,2 that the mortgaged property was sold through a transparent auction which cannot be annulled on mere assumptions. It was further submitted that the auction-purchaser has deposited the entire bid price and valuable right has accrued in his favour, which cannot be snatched on a mala fide objection petition of the judgment-debtor. It was emphasized that the decree-holder has accepted the auction proceedings that is why it has not got its appeal restored:
5. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, publicity of the auction allegedly held on 28-2-2002 was not properly done, as its notice was not publicized in any of the newspapers. The Court Auctioneers felt satisfied with circulation of few pamphlets, which according to their report, were only pasted outside the Court Room and at the place of auction.
Display of these pamphlets, if were really published, is not shown to have been done on public places of the vicinity i,e, the adjoining villages/towns. Court Auctioneers have referred to publicity at the beat of drum, but there is nothing in the report to show that at what places and by whom it was undertaken.
6. The pamphlets published by the Court Auctioneers are also vague. Copy of the pamphlets placed on the record shows that neither the proper specification of land subject of auction nor the place of auction has been mentioned with clarity. The land subject of auction is located in Mouza Bhogiwal, which is said to be of commercial nature. Be that as it may, Bhogiwal is located within the outs skirts of Lahore City and only three participants in the open auction of such a land is simply amazing which at least did show that publicity of the auction was not extensively made. Court Auctioneers have mentioned in their report the antecedents of the participants, according to which, none of them is a resident of Mouza Bhogiwal, where the land subject of auction is locate and this negatively reflects on the proceedings. One of the participants namely Muhammad Masood son of Sardar Muhammad Shafi has been noted as a representative of the judgment- debtor, but no authority letter from him was placed on file and at the same time, this representative was allowed to participate in the bid without sanction of the Court. Learned counsel for respondent No,2 successfully referred to interim orders by the executing Court to show that notice under Order XXI, rule 66, C.P.C. Was issued. Under law, service of this notice was to be effected on the judgment-debtor according to the procedure laid down by Order V, C.P.C., but the file is absolutely thirsty of the proof that any such notice was served on the appellant.
7. All the points noted above, float on the face of the record and were specifically pointed out in the objection petition filed by the appellant but the executing Court through a sketchy/unreasoned order impugned before us, dismissed the same with a solitary un-based finding that ' publicity was properly done for the auction conducted for an amount of Rs,8,55,000. Such determination through the order impugned is not justifiable on touchstone of-any Canon known for administration of justice. Judgment of the Banking Court can in no manner come within the area of judicial decisions as no kind of reason has been mentioned therein for throwing the objections out of the file. We have deliberately avoided giving concrete findings except pointing out apparent defects, lest the mind of the executing Court may not be prejudiced as we intend to remit the case back for fresh decision.
8. For the reasons noted above, impugned order, dated 18-10-2002 passed by the Banking Court-II, Lahore is illegal, hence the same is not sustainable. This appeal is accordingly allowed and the order, dated 18-10-2002 is set aside with the result that objection petition filed by the appellant shall be deemed to be pending before the executing Court and will be decided afresh, in accordance with law.