' MUHAMMAD KHALID MEHMOOD KHAN, J.---The appellant has assailed order dated 19-4-2001 of learned Banking Court.
2. On 10-12-2009 Banking Court established under Financial Institutions (Recovery of Finances)
Ordinance, 2001 passed a decree for recovery of finance against appellant, execution of decree commenced, finally court-auctioneers were appointed to auction the mortgaged properties for realization of decreta1 amount, the court-auctioneers, issued proclamation as per approved terms and conditions of executing court and submitted their report on 1-1-2011, along with two offer letters of decree-holder. The appellant objected the report of court-auctioneers, claiming that no auction ever held, the court-auctioneers themselves have postponed the auction on 30-12-2010.
3. Learned executing court vide order dated 19-4-2011 repelled the appellant's objections and held that after perusing the court-auctioneers report it is established that court-auctioneers have conducted auction in consonance with law. The objectors have failed to point out any illegality or infirmity in execution proceedings.
4. Learned counsel for appellant submits that report of court-auctioneers show that no auction took place on 31-12-2010, the offer of Umer Shahzad Younas AVP of decree-holder bank was handed over to court-auctioneers after the postponement of auction proceedings, the decree- holder bank has not offered any price of, property and only requested for setting off the decree against reserved price of property put to auction, no amount was paid to court-auctioneers at the spot in terms of approved conditions of sale and as such the impugned order on the .Face of it suffers from misreading and non-reading of record. Lastly adds that, decree-holder has not obtained permission to participate in auction, hence the auction is void ab initio. He has relied on Brig. (Retd.) Mazhar ul Hag and another v. Messrs Muslim Commercial Bank Limited, Islamabad and.Another (PLD 1993 Lahore 706), Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd.
Through Branch Manager and 3 others (2003 CLD 1693), Muhammad Attiaue v. Jami Limited and others (PLD 2010 SC 993) and Liaqat All v. Bashiran Bibi and 9 others (2005 CLC 11).
5. Learned counsel for respondent submits that court-auctioneers conducted auction strictly in accordance with law, no doubt, no bidder turned up on 30-12-2010 but the decree-holder submitted their bid for the purchase of mortgaged property for adjustment of decree. He however is unable to controvert the fact of postponement of auction proceedings on 31-12-2010, Learned counsel submits that under section 19 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 (hereinafter referred to as the Ordinance 2001"), the decree-holder is not obliged to seek permission of executing court for offering its bid.
6. We have heard learned counsel of parties and perused the record.
7. In para 9 of the report of court-auctioneers it is mentioned as under:-- "9. That till 12-30 p.m. No bidders came there to participate in Auction. Therefore, we have no option to postpone the Auction proceedings at 12-30 p.m."
8. The court-auctioneers in para 11 of their report have reported the offer of decree-holder as under:- "11. That Mr. Umer Shahzad Younas, AVP decree Older bank handed over to us a copy of application for purchase of mortgaged property No,3 in which the decree-holder bank has prayed:- "In view of the above you are requested to accept the highest bid/ reserve price applicant/decree- holder bank for the purchase of the above mentioned mortgaged property and to set-off. The purchase money against the amount owed to the applicant/decree-holder bank under the judgment and decree dated 10-12-2009."
This application is enclosed with the original Auction proceedings as mark-C."
9. The proceedings of auction are available at page 54 of appeal which provide as under:- {{URDU TEXT}}
10. It seems that report of court-auctioneers skipped from the attention of learned banking court, while passing impugned order. No doubt, the decree-holder on 30-12-2010 submitted their offer, showing their intention to purchase property put to auction, against reserved price, by way of adjustment of decretal amount but the said offer as per record is subsequent to postponement of auction proceedings.
11. Under Order XXI, rule 72, Code of Civil Procedure, 1908, if decree-holder intend to participate in auction proceeding, the decree-holder has to obtain permission of executing court. It has to be seen why the said clog has been enacted against the decree-holder.
12. The perusal of Order XXI, rule 72, C.P.C. Shows that decree-holder will not be permitted to participate in auction proceedings, meaning thereby the law only binds the decree-holder for obtaining permission and it is silent for the permission of judgment-debtor, this clear distinction in law is intentional. The judgment-debtor if will purchase the property, he will offer maximum price as the maximum price will be in his benefit for discharging the liability under the decree, whereas the decree-holder may try to purchase land on lessor price, that is the reason the legislator has taken care of slightest possibility of unfairness which may cause loss to the judgment-debtor, hence the logical conclusion under the provision of Order XXI, rule 72, C.P.C. Is, if the decree-holder intends to participate in auction he is hound to obtain permission of court and any sale in favour of decree-holder without court permission will be voidable if not void in the absence of judgment- debtor's consent.
13. The facts of the case in hand require the following questions to be addressed by this Court:
(1) Whether the court can take cognizance for acceptance of offer of decree-holder after the postponement of auction in the absence of permission in terms of Order XXI, rule 72, C.P.C.?
(2) Whether once auction proceedings postponed, the court is bound to resettle the terms of sale?
(3) Whether once the Banking Court adopts procedure of C.P.C., the Court can travel beyond the provisions of C. P. C.?
14. Admittedly the decree-holder has not obtained permission as required by law and the court- auctioneers entertained the offer of decree-holder after postponement of auction proceedings, the court-auctioneers were acting on behalf of court and before entertaining the offer of decree- holder, they were bound under the law to demand the permission of court for decree-holder they entertained the offer of decree-holder without any objection and their irresponsible report misguided the Court, it seems that learned Banking Court while passing the impugned order thought that court-auctioneers have performed their legal duty according to law and confirmed the sale in favour of decree-holder against the reserved price holding that auction has been conducted in consonance of law. From the above E said discussion, in our humble opinion, the decree-holder was not competent to purchase the property of judgment-debtor in the absence of permission of the Court and confirmation of sale in their favour is not sustainable in the eye of law.
15. Under Order XXI, rule 69(2), C.P.C., if the court or court-auctioneer adjourned the sale for a longer period more than 7 days, a fresh proclamation under Order XXI, rule 67 has to be made unless a judgment-debtor waives his right, in the case in hand the sale was not adjourned rather it was postponed, meaning thereby, the sale has to be conducted again, so now for re-conducting the sale, the court has to issue notice Order XXI, rule 67, C.P.C. Which is lacking in this case, learned banking court has ignored this mandatory requirement of law while confirming the sale on a single offer of decree-holder that too against reserved price. It is an established, law that while confirming the sale, the court has to decide the validity of sale in the first instance and after coming to the conclusion that sale is valid, legal and is in accordance with law then the court may confirm the auction. In the present case, there was no sale and only an offer was submitted by the decree-holder that too without the permission of Court and as such the impugned order thus is not legally justified.
16. It is an admitted fact that decree against the appellant was passed under Ordinance 2001, which itself provides the mode of execution of decree. Under section 19(2) of the Ordinance, 2001, the decree of Banking Court is executable in accordance with the provisions of C.P.C., or any other mode under any law for the time being in force or in such a manner the Banking Court may consider appropriate, In this case the execution of decree commenced under C.P.C. And not under section 19 of the Ordinance, 2001. It is a settled law that once the court takes cognizance under one procedure, the proceedings commence under the said H procedure will be finalized under the same procedure, no pick and choose authority is available in law to court.
17. No doubt, the auction under section 19 of the Ordinance, 2001, could be conducted without intervention of court but even in that case the court alone is enjoying powers to confirm or reject the sale. In the present case, the procedure of section 19 of the Ordinance. 2001 has not been adopted and as such further discussion on this issue is not relevant.
18. As the impugned order suffers from misreading and non-reading of record and as such we have no hesitation to set aside the impugned order. The appeal is allowed, with no order as to costs.