1. ' ARSHAD NOOR KHAN, J.---By this appeal filed by appellants under section 22 of Financial Institutions (Recovery, of Finances) Ordinance, 2001 read with Order XLIII, Rule 1, C.P.C., the appellants have challenged the order dated 17-12.-2008 passed by the learned. Presiding Officer Banking Court No,1, Sukkur, whereby the application under Order XXI, rule 90, C.P.C. And another application under section 151, C.P.C. Filed by the appellants were dismissed.
2. ' The facts leading rise to the present appeal in brief are " that the respondent No,1 filed suit for recovery of Rs,1,58,39,621 against Messrs Indus Flour Mills i,e, respondent No,2 Nasrullah Siddiqui, Khalil . Ahmed Siddiqui, Sajidullah Siddiqui, Lutufullah, Muhammad Fazlullah, Ghulam Sarwar, Mst.
3. Zaibun-Nisa and Mst. Hidayat Khatoon, which was decreed on 23-10-1996. The judgment and decree passed by the learned Banking Court was challenged before this Court in appeal but the appeal was also dismissed in default which was not restored. The judgment-debtor filed application under section 12(2), C.P.C. For setting aside the judgment and decree on the ground that the same was obtained by committing fraud. The appellants also filed C.P. No,D-836 of 2001, against dismissal of his application under section 12(2), C.P.C. Which was dismissed on 25-7-2005.
4. The respondent No,1, therefore persuaded the execution application, wherein during the pendency of execution application the property which was subject-matter of the case was subsequently auctioned by the Bank on 30-6-2008 and the same was subsequently confirmed by the executing Court vide order dated 28-10-2008 and the sale certificate was issued vide order dated 1-11-2008 in Execution Application No,341 of 1999. After issuance of sale certificate, the appellants filed application under Order XXI, rule 90 read with section 151, C.P.C. Praying therein for recalling the order dated 30-6-2008 which application was dismissed by the executing Court on 28-10-2008, thereby confirming the sale in favour of respondent No,7. Another application under Order XXI, rule 90, C.P.C. Along with application under section 151, C.P.C. Was also filed which were also dismissed vide order dated 17-12-2008. Hence the present appeal.
5. ' We have heard Mr. Sarfraz Ahmed Akhund Advocate for the appellants. Mr. Haleem Siddiqui Advocate for respondent No,1, Mr. Ali Hyder Dareshani Advocate for respondent No,7, Mr. Zulfiqar All Naich Advocate for respondents Nos.4 and 6 and Mr. Mukesh Kumar Advocate for respondent No,5.
6. ' Mr. Sarfraz Ahmed Akhund Advocate for the appellants vehemently contended that the property was purchased by respondent No,7 who is Munshi of respondent No,5 as such fraud has been committed and such fraud, vitiated to whole auction proceedings. He further contended that the property has been auctioned on very low price of Rs,88,000,00 which was not in accordance with market value of the property in question which could fetch more than Rs, four crore. He further contended that the respondent No,7 who is auction purchaser, is the Munshi of respondent No,5, thereafter he has executed power of attorney in respect of same property in favour of respondent No,5 which shows that auction was in collusion with the relatives of the respondents therefore it could not be said that the auction by executing Court was according to market value of the property. He further states that he will not controvert the factual aspect of the matter. He therefore prays that the impugned order may be set aside and the sale proceedings may be recalled.
7. ' Mr. Haleem Siddiqui learned counsel for the respondent No,1 vehemently contended that the present appeal is hopelessly time barred and has been filed just to delay the execution proceedings before the learned Banking Court and the decree was passed in the year, 1996 and during the course of pendency of execution application, the appellants and respondents Nos.3 to 6 who are also brothers and relatives inter se on one or other pretext hurdled the execution of decree by filing the misc. Application and the present appeal is also filed against the order which is not revisable in appeal before this Court. According to him, auction has already been confirmed and sale certificate has been issued by the order of Banking Court on 1-11-2008 and after issuance of sale certificates any application for review on any other ground is not maintainable. In support of his contention he has relied upon the case of Muhammad Ikhlaq Memon v. Zakaria Ghani and others reported in PLD 2005 SC 819 and the case of Messrs Rasu Food Industries and another v.
8. Messrs Pakistan Industrial Leasing Cooperation Limited and others reported in 2005 SCM R 1643.
9. ' Mr. All Hyder Dareshani learned counsel for respondent No,7 vehemently contended that no fraud has been practised by _ the parties or by the learned executing Court in auction of property in question and the respondent No,7 was the highest bidder and the sale has been confirmed and such sale certificate has also been issued and the appellants have filed the present appeal against the auction proceedings, therefore the appeal is not maintainable. In support of his contention -he has also relied upon the case of Messrs Rasu Food Industries and another supra, relied upon by the learned counsel for respondent No, 1.
10. ' Mr. Zulfiqar All Naich learned counsel for the respondents Nos.4 and 6 as well as Mr. Mukesh Kumar learned counsel for respondent No,5 have supported the arguments advanced by learned counsel for the appellants and reiterated that property in question may be re-auctioned to secure its real market value.
11. ' We have considered the arguments advanced by the learned counsel for the parties and have gone through the material available before us.
12. 'The fact which could not be controverted by the learned counsel for the appellants are that the suit filed by respondent No,1 was decreed against which the appeal before this Court was also dismissed. Thereafter application under section 12(2), C.P.C. Filed by judgment debtor was also dismissed in C.P. No,D-821 of 2001 on 19-4-2004. It is not disputed that the appeal No,5 of 2007 filed by respondent No,5 Lutufullah before this Court was also pending adjudication which was dismissed as withdrawn, meanwhile the Banking Court ordered for the auction of suit property and the auction proceedings were held when respondent No,5, as well as some other judgment- debtors also participated and at the time of the fall of hammer, the respondent No,7 Abdul Ghaffar gave the highest bid to the tune of Rs,88,000,00 which was finally accepted by the learned executing Court on 28-10-2008 thereby confirming the auction and after payment of full price, sale certificate dated 1-11-2008 was also issued in favour of respondent No,7. The dispute cropped up after order dated 28-10-2008 when the respondent No,5 filed application under Order XXI, rule 90, C.P.C. Praying therein for setting aside the auction proceedings held on 3-6-2008 on the ground mentioned in the application. The ground urged by the' respondent No,5 in support of this application was that he will face hardship due to disposal of property in question because he is residing in the property in question and there is no other residential property to provide shelter to him. He by this application has not challenged the auction proceedings on the ground of fraud allegedly practised by respondent No,7 as such the said application was dismissed by the executing Court on 28-10-2008. The present appellants after disposal of this application on 28-10- 2008 filed another application under section 151, C.P.C. For review of the order dated 28-10-2008.
13. The said application filed by respondent No,5 Nasrullah Siddiqui was also dismissed on the ground that he failed to deposit 20% decreetal amount within 3 days from the date of passing of said order by executing Court vide order dated 17-12-2008. The said order has been impugned in the present appeal.
14. Perusal of application under section 151, C.P.C. For recalling of order dated 28-10-2008 filed by appellants shows that they have filed application for review of earlier order dated 30-6-2008 passed by the executing Court and the learned counsel for the appellant has failed to point out any provision of law to show that any appeal, against the dismissal of review application, is competent before this Court specially when the Banking Ordinance being special statute itself did not, provide any provision to empower the Banking Court to review its earlier order. The order, passed by the learned executing Court dated 28-10-2008 shows that executing Court had refused to review the order passed by it on 28-10-2008, as the said order passed by the executing Court attains finality. The learned counsel for the appellants as well as respondents Nos.4, 5 and 6 have not brought on record any document to show that any B fraud has been committed by respondent No,7 or respondent No,1 or even by learned executing Court whereby confirming the auction proceedings It is also settled principle of law that particular of fraud must be specified in the application with particularity and in absence of any particulars of fraud, plea of fraud could not be considered. Learned counsel for the appellants has also not produced any evidence before this Court or lower Court to show that auction price in the sum of Rs,88,000,00 was low price other than the market value and in absence of any evidence regarding the market value of the property it cannot be acceded that the property is valued to Rs, four crore as contended by the learned counsel for the judgment-debtor. In the case of Messrs Rasu Food Industries and another, it has been observed that the process of auction was completed and property had changed from three hands and the process of execution had gone ahead, as such the petition in that case was declined. The observation in the aforesaid case is reproduced herein under for the sake of convenience:-- "The contention so raised by the learned counsel has no substance. As a careful perusal of order of disposing of writ petition vide order dated 10th April, 2001, clearly indicates that it was conditional order as petitioners were required to deposit decretal amount before the Banking Court within a period of one month, but admittedly they failed to do so, with the result that sale of the house in favour of auction-purchaser was confirmed and certificate of sale was issued. It is important to note that by the time the property has changed three hands as respondent No,2 soled the house to respondent No,3 from whom respondent No,4 has purchased the same. As the process of selling the property to satisfy the decree has gone much ahead, therefore, no relief at this stage can be granted to, the petitioners."
15. ' The dictum laid down by the Supreme Court in the aforesaid case is fully applicable to the circumstances of the present case. The case of Muhammad Ikhlaq Memon, supra, is also applicable in the circumstances of the present case.
16. After going through the material available on record as well as the impugned order, we are of the opinion that no ground has been made out to interfere in the order passed by the learned executing Court. In view of aforesaid reasons and circumstances we do not find any merit in this appeal, which is hereby dismissed along with the listed-application, with cost.