' MIAN SAQIB NISAR, J.---Through the impugned order dated 21-8-2004, objections filed by the appellants to the execution of the order dated 20-7-2000 passed in favour of the IDBP in a recovery petition, have been dismissed.
2. Brief facts of the case are that the respondent IDBP under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 (the Ordinance) brought a recovery petition against the appellants founding its claim on the basis of a project loan advanced to them (the appellants), in which a default was committed; the, appellants were issued with a show cause notice under the law which was replied to by them, the court considered that a cause has been shown decided to proceed under section 39 (8) and after the investigation/trial, passed the following final order dated 20-7-2000:-- "In the light of above discussion, it is crystal clear that respondents, who had not denied the liability, have failed to come up with any valid objection against the maintainability and acceptance of this petition; hence their defence is closed and interim order passed by my learned predecessor on 18- 2-1998 is finally confirmed and as a consequence, the petition in hand is accepted. No order as to costs."
' It may be relevant to mention here that prior thereto, through the interim order dated 18-2-1998 the property of the appellants which was mortgaged with the respondent/IDBP has been attached; the order reads as follows:-- "Meanwhile, as per request of the learned counsel for the petitioner, the interim order of attachment of the suit property as envisaged under section 39(3) of I.D.B.P is hereby passed."
' Against the final order, the appellants filed FAO No,257 of 2000, in which for the purposes of interim relief a direction was issued to them to make the deposit of a sum of Rs,52,00,000 within a period of one month, but admittedly it was not so done, besides, the FAO was dismissed for non-prosecution on 19-2-2002; the respondent/IDBP in order to seek the execution of the order dated 20-7-2000 brought an application on 16-3-2001, in which following modes for the said purpose were chosen/proposed:-- "By the sale of mortgaged/hypothecated properties as mentioned in Fard Taleeqa, also by the sale of properties of the Directors and by the arrest and detention of the respondents/Guarantors.
' No notice of the above was served upon the appellants; the notice under Order XXI, Rule 66, C.P.C.
Was also not issued, and the Court ordered for the sale of the mortgaged property. Certain attempts were earlier made for the sale but in vain, when finally it was put to auction on 28-8- 2004, has been purchased by Haji Muhammad Akram (respondent No,5); regarding the inexcusability of the order dated 20-7-2000 and also about the noted sale, the appellants moved objections petition, which has been dismissed vide order dated 21-8-2004. Hence this appeal.
3. It has been argued by the learned counsel for the appellants that although the order of interim attachment of the property was confirmed on 20-7-2000, but no specific order directing the sale as is required by the provisions of section 39(9) of the Ordinance has been ever passed, (this admittedly is not so in the final order dated 20-7-2000), therefore, without the above, the property could not be sold in execution of the order dated 20-7-2000, as the said order in terms of section 39(10) has to be executed in the manner provided by the Civil Procedure Code for the attachment and sale of the property as in execution of a decree and considering the IDBP a decree holder.
Therefore, the order dated 20-7-2000, which is to be deemed to be a decree under the law when does not provide the requisite direction, it was inexecutable. It is also argued that mere mention in general terms in the order dated 20-7-2000 that the petition has been accepted, shall not imply the direction of sale; besides the order of the court under the IDBP Ordinance, has to be executed in terms of Civil Procedure Code, which requires that before the sale of the property, a notice under Order XXI, Rule 66, C.P.C. Should mandatorily be issued, which admittedly has not been issued, therefore, the entire proceedings of sale stands vitiated. Reliance in this behalf is placed upon the judgments reported as Messrs Ripple Jewelers (Pvt.) Ltd. Through Chief Executive and another v.
First Woman Bank through Officers/General Attorney/Principal Officers and 6 others 2003 CLD 1318 and Brig. (Retd) Mazharul-Haq and another v. Messrs Muslim Commercial Bank Ltd Islamabad and another PLD 1993 Lah. 706 Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd through Branch Manager and 3 others 2003 CLD 1693, Mirza Munawar Baig and 5 others v. Bank Alfalah Limited and 2 others 2007 YLR 126, Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Ltd. And others 2001 CLC 126, and Mst. Zainab Bibi v. Allied Bank of Pakistan Ltd and others 2003 YLR 274. Learned counsel further argued that respondent No,5 (the auction-purchaser) was required under the provisions of Order XXI, Rule 84, C.P.C. To pay 25% of the auction price to the Court auctioneer at the time of sale, but he has not done so, rather a cheque was given to the Court auctioneer in breach of the above said law, which 3 days later was taken back from the Court auctioneer and substituted by such payment, therefore, in the light of the judgment reported as. Ajksun. International Manufacturers and Exporters through Partners and 2 others v. Habib Bank Ltd. Through Attorneys Vice President and Chief Manager and others 2005 CLD 1, such payment shall be of no legal consequence and on this count too no valid sale can be held to have been made in favour of respondent No,5.
4. Confronted with the above, learned counsel for the respondent/IDBP states that under section 39 of the Ordinance, there are two stages in the case; first where only show cause notice is issued to the respondent and if no cause is shown, the petition is allowed, but if otherwise (second stage) the proceedings have to take place in terms of section 39(8) as has happened in the case, the trial was accordingly conducted and the case was decided finally. Against the above, the appellants had come in appeal before this Court but that was dismissed for non-prosecution; besides, for the interim relief they failed to deposit the amount of Rs,52,00,000 as was required by the Court, thus in the light of above, this has reflection upon the conduct of the appellants and, therefore, the objections were rightly dismissed; and the appeal should also meet the same fate; he further argued that the present case is to be covered by section 39(10) of the Ordinance and the Court has accordingly executed the order dated 20-7-2000 as the decree of the Court; that as per the order dated 20-7-2000, the recovery petition was accepted as a whole, which would mean that it (the order) embodies the direction for the sale of the property as well. In order to elaborate as to what is the true interpretation and scope of section 39, reliance has been placed upon the judgments reported as Messrs Muhammad Afzal Muhammad Khaleel and others v. Industrial Development Bank of Pakistan PLD 1974 SC 319, Messrs Taufiq Textile Mills (Pvt.) Ltd. And 4 others v.
Messrs Industrial Development Bank of Pakistan PLD 1999 Karachi 71, Industrial Development Bank of Pakistan v. Haji Moosa A. Karim and another 1983 CLC Karachi 284, Mohiddin Molla v. The Province of East Pakistan, and others PLD 1962 SC 119, Province of East Pakistan v. Sharafatullah and others PLD 1970 SC 514, Mst. Neelam Mosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 Lah., M. Javed Daulat Zia v. Returning Officer/ Additional District & Sessions Judge, Bahawalpur and 3 others 2002 CLC 198 Lah. And Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280 SC (AJ&K)
5. Respondent No,5 represented by Mr. Muhammad Saeed Ansari learned Advocate is the auction- purchaser, who has purchased the property in question through auction conducted on 28-8-2004 and was impleaded as respondent No,5 on his own application (C.M.No,6 of 2005). Learned counsel for the said respondent has adopted the submissions made by the learned counsel for the respondent/IDBP and in addition thereto states that the respondent had made the payment of 25% amount of the auction price to the Court auctioneer the same day i,e, 28-8-2004 through cheque, which was accepted by him, the remaining amount within the prescribed period deposited in the Court, thus it cannot be said that he has committed any breach of the provisions of Order XXI, Rule 84 or 85, C.P.C.
6. Heard. In the main recovery petition the respondent/ IDBP has asked for multiple reliefs including the appointment of receiver, etc. And specifically for the sale of the properties and for the attachment thereof. The interim relief of attachment was granted to it vide order dated 18-12-1998, however,, while passing the final order though the attachment was specifically confirmed, but no direction regarding any other relief was made, particularly the sale direction is conspicuously missing; section 39(9) of the IDBP Ordinance, provides that "on completion of the investigation under subsection (8) the District Judge shall pass as order (a) confirming the order of attachment or directing the sale of the attached property The word "or" in the noted provision is significant and means that the Court has the option and the authority to grant either or both the reliefs or otherwise. Therefore, the question which needs determination is, if such an order in which sale direction is not given is executable qua the sale as well, when the order dated 20-7-2002 provides the acceptance of the recovery petition in general terms and not such a direction. For the answer, it is expedient to make reference to section 39(10) of the Ordinance which provides "An order under this section for the attachment or sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908 (Act V of 1908) for the attachment or sale of property in execution of a decree as if the Bank was the decree holder". This provision clearly postulates that the order passed under section 39(9) is composite in the nature i,e, entailing the "judgment" and also a "decree", the judgment in the context of law is the statement given by the Judge of the grounds of decree, while the decree envisages the relief allowed and is the only instrument having relevance for the execution; the expression in the section "shall be carried into effect" connotes the execution of such a decree and obviously as per the command of section 39(10) in the manner as has been provided in the Civil Procedure Code. The important aspect, which is to be seen is, whether the order dated 20-7-2000 qualifies the test of a decree, which can be independently executed as required under the law. In this behalf, reference can be made to the provisions of Order XX, Rule 6, C.P.C. Which prescribes the contents of decree "(1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties, and particulars of the claim and shall specify clearly the relief granted or other determination of the suit." It is settled law that it is the decree that is to be executed and should clearly specify the relief granted or other determination of the suit, (See 1990 CLC 110 Muhammad Suleman v. Wilayatullah Khan and 2 others), it should be self contained and capable of execution without reference to any other document (See 1998 CLC 27 Kareem Bux v. P.O. Sindh and others 1985 CLC 1660 Muhammad Ilyas and others v. Muhammad Yasin and AIR 1944 Orissa 42). A decree and judgment are distinct and separate documents, though the decree should follow the judgment, but it must specifically contain as to what is the relief which has been allowed to the claimant/plaintiff so that through mechanism of execution (provided in Civil Procedure Code) the fruits thereof can be granted to the decree holder; as has been mentioned above, the order dated 20-7-2000 is a composite order which embodies both the judgment as also the decree, the latter part is the decree and if it (this part) does not specifically provide the relief granted, it shall not conform to the concept of the decree, which can be executed under the law and this is fundamental flaw in the order dated 20-7-2000. It may be pertinent to mention here that as the case was heard on few occasions and during the course of one of the hearing, the respondent/IDBP realizing the above fault has moved an application C.M.No,309-C of 2009 under section 152 read with section 107(2), C.P.C. Seeking direction from this Court to correct and amend the order dated 20-7-2000, suffice it to say that the present proceedings have arisen out of the execution and not on the original side, therefore, the provision of section 107(2) shall be inapplicable; the respondent/IDBP may, however, choose appropriate remedy if permissible under the law for seeking appropriate amendment of the order dated 20-7-2000 before the proper forum, so as to bring it in lines with section 39(9) of the Ordinance.
7. Now attending to the other proposition (keeping in view section 39(10)) if the notice under Order XXI, Rule 66, C.P.C. Has been issued in the case and the effect thereof. Learned counsel for respondent No,1 and also for respondent No,5 when particularly questioned, have conceded that the needful was not done. Obviously, the judgments reported as Messrs Ripple Jewellers (Pvt.) Ltd.
Through Chief Executive and another v. First Woman Bank through Officers/General Attorney/Principal Officers and 6 others 2003 CLD 1318 Brig. (Retd) Mazhaf-ulHaq and another v.
Messrs Muslim Commercial Bank Ltd Islamabad and another PLD 1993 Lah. 706, Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd through Branch Manager and 3 others 2003 CLD 1693, Mirza Munawar Baig and 5 others v. Bank Alfalah Limited and 2 others 2007 YLR 126, Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Ltd, and others 2001 CLC 126, and Mst. Zainab Bibi v. Allied Bank of Pakistan Ltd and others 2003 YLR 3274 are squarely applicable and therefore, the entire proceedings of the auction without complying with the above mandatory provision including the sale in favour of the respondent No,5 stands vitiated and annulled.
8. As far as the issue whether respondent No,5 could make the payment of 25% of the auction price through cheque; Order XXI, Rule 84, C.P.C. Provides "On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty five per cent, on the amount of his purchase money to the officer or other person conducting the sale and in default of such deposit, the property shall forthwith be re-sold.". Thus it is a mandatory provision because if the amount is not deposited with the Court auctioneer, he is bound to re-sell the property forthwith; this conforms to the spirit of the law that quite a steps and legal formalities are undertaken before the auction and if the successful bidder runs away and the auction remains unsuccessful on that account, again all the legal niceties have to be followed, which shall be an abuse of the process of law and the chance of re-sale there and then shall be gone and frustrated; it is in the above context that the law envisages a cash payment and even otherwise when the law (the Code of Civil Procedure, 1908) was enforced, the banking system as it is today, was not in place, therefore, the payment through cheque could not be conceived, however, because of the changed circumstances, nowadays it is a real risk and peril to carry huge money, thus, the payment through cheques can be received, this shall not militate against the spirit of Order XXI, rule 84, C.P.C. But the successful bidder along with the cheque should also establish by providing the latest bank statement to the Court auctioneer that he has the requisite funds in the account from where the cheque is issued and if it is otherwise, the officer in the light of the command of law should re-sell the property forthwith, otherwise the law for the resale shall be infringed. When asked on number of occasions, learned counsel for respondent No,5 has failed to provide any statement of accounts to establish the availability of such funds on 28-8-2004. It may be further stated that instead of allowing the same cheque encashed by the Court auctioneer, the appellants themselves, after three days i,e, 31-8-2004, asked the officer to return it and paid him the cash amount, this is so reported by the court auctioneer in his auction report, this clearly shows that respondent No,5 had no sufficient amount in the said account and this was subsequently replaced by the cash. It may also be relevant to mention here that on account of withholding of best evidence i,e, proof about the availability of the funds in the Bank account of respondent No,5 from which the cheque was issued, a presumption can be drawn against him in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984.
' In the light of above, this appeal is allowed.