' SADIQ HUSSAIN MATTI, J.--- The petitioner, feeling aggrieved by the judgment dated 30-8-2009 passed by the learned Banking Court No,1 in Suit No, 687 of 2008 whereby the suit filed by the respondent No,3 was decreed and the order dated 23-2-2012 passed by the learned Banking Court No,1 in 'Execution Application No,47 of 2009 whereby the application filed by the petitioner under Order XXI, rule 89, C.P.C. Read with section 12(2), C.P.C. Was dismissed has filed the present petition for assailing the above judgment and order.
2. Brief facts of the case are that Messrs Abdullah Travels, a partnership firm of the petitioner, approached the respondent No,3-Bank Al-Falah for grant of Current Finance Facility (hereinafter referred to as "CFF") and vide offer letter No,SFK/1146/05 dated 14-12-2005 sanctioned and advanced a sum of Rs,3.5 million valid upto 31-12-2006. In order to acknowledge and secure repayment of the CFF the petitioner executed various agreements, promissory notes, letters of arrangement, letters of continuity and letters of authority and also signed his personal guarantee.
The petitioner also mortgaged his property viz. Office bearing No,M-5. Mehran Residencies, Plot/Survey No,18/13, Survey Sheet No,CL-7, Plot No,18/13-8, Civil Lines. Quarters, Karachi by depositing: Agreement to Create Mortgage dated 19-12-2005, General Power of Attorney dated 8- 3-2006, Mortgage deed dated 8-3-2006, Conveyance deed dated 12-8-2003 and Indenture of sub-lease dated 26-5-1994. Before respective expiry of the CFF the petitioner approached the respondent No,3 for renewal of the facility which was renewed and finally on 19-4-2008 an amount of Rs,7,156.500 was due and payable by the petitioner to the respondent No,3 in respect of the CFF.
The respondent No,3 repeatedly requested the petitioner to adjust the outstanding liability but he failed to adjust the same. Having no other option left, the respondent No,3 filed Suit No, 687 of 2008 for recovery of the above amount as well as damages. The suit was decreed by the learned Banking Court No,1 vide judgment dated 3-8-2009. The respondent No,3 filed execution application No,47 of 2009 for execution of the decree passed in the above suit wherein, an application under Order XXI, rule 89, C.P.C. Read with section 12(2), C.P.C. Was filed by One Muhammad Waleed, claiming to the son of the petitioner, objecting to the sale of the mortgaged property very low price and that no notice of the execution application was served on the J/D No,1 who was stated to be out of country for the last two years. It was also stated that the J/D No,1 is ready to deposit the sale amount and hence the auction proceedings be cancelled. This application was also dismissed by the learned Banking Court No,1 vide order dated 23-2-2012. The present petition has been filed impugning the judgment and decree in the suit and the order dated 23-2-2012.
3. The main contention. Of the learned counsel appearing on behalf of the petitioner was that the Judgment Debtor was not served with a notice under Order XXI, rule 66, C.P.C. And thus a mandatory provision was not complied with which renders the sale of the mortgaged property illegal. He next contended that the Banking Court was not justified in dismissing the application under Order XXI, rule 89, C.P.C. Moved by the son of the petitioner as he was ready and willing' to deposit the bid amount of Rs,54,000;000. He also stated that at the time when the respondent- bank filed the suit for recovery against the petitioner, he was out of country and, therefore, was not served properly and, therefore, the suit was decreed in violation of, the rules of natural justice.
4. On the other hand. Mr. Abdul Shakoor, learned counsel for the respondent No,3, submitted that the petitioner wilfully and deliberately did not participate in the proceedings before the trial Court as he was aware of the fate of the suit. He stated that notices were issued to the defendant/petitioner through publication and an application for leave to defend' was also filed by them which was dismissed vide order, dated 1-4-2009, thereafter the suit was decreed vide judgment dated 30-8-2009. Thereafter the petitioner filed an application under section 12(2), C.P:C.
On 3-3-2012 which was also dismissed vide order dated 21-3-2012. If at all the petitioner was aggrieved he ought to have filed an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as "the Ordinance, 2001"). He further stated that since the petitioner did not challenge the judgment and decree, therefore, he cannot object to the sale of the mortgaged property. He stated since the adequate alternate remedy, available to the petitioner was not availed, therefore, this petition is not maintainable and is liable to be dismissed.
5. Mr. Ali Raza, learned counsel appearing on behalf of the auction-purchaser, who was added as respondent vide order dated 22-1-2013 passed on his application under Order I, Rule '10, C.P.C., submitted that it was too late in the day for the petitioner to come forward and pray for cancellation of the auction proceedings as the auction has been confirmed and sale' certificate has already been issued in favour of the auction- purchaser. He submitted that since the auction- purchaser was not a party to the suit, therefore, his rights are to be protected'. In support of his contentions he relied on the case of Mumtaz-ud-Din. Feroz v. Sheikh Iftikhar Adil and others (2009 'CLD 594) and Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993).
6. The record reveals that when the suit for recovery of Rs,7,156,500 was filed by the respondent bank, the petitioner filed leave to defend application which was dismissed and the suit was decreed vide judgment dated 30-8-2009. Thereafter, an application under section 12(2), C.P.C. Was filed which was also dismissed. Thereafter, the petitioner neither filed any civil petition for leave to appeal against the order dismissing his application under section 12(2), C.P.C. Nor any appeal was filed against the Judgment dated 30-8-2009. Thus, the petitioner failed to pursue his remedy under the law. Although a notice dated March 6, 2012. Addressed by the counsel for the petitioner to the respondent bank under section 22(2) of the Ordinance, 2001 is available at page 49 of the file (Annexure "E") but it is an admitted position that no appeal under section 22 of the Ordinance, 2001 was preferred to challenge the judgment and decree passed in the suit of the respondent bank. In view of these facts the judgment and decree passed in Suit No,687 of 2008 attained finality.
7. Learned counsel for the petitioner has placed a copy of the application under Order XXI, rule 89, C.P.C. On record during the course of his arguments. A perusal thereof reveals that the said application has been filed by the son of the petitioner as his attorney. As per averments made in, the affidavit in support of this application, the applicant i,e, son of the petitioner/J.D. No,1 came to know about the sale of the mortgaged property on 14-2-2012. The affidavit further reveals that the notices served upon the JD. No,1 were returned unserved as he was out of country 'for the last two years'. It further transpires from the affidavit that another property of the J.D. No,1 was also sold 'on account of liability of DH and was sold out on low price of Rs,20.00 lacs whereas the market value of said property was Rs,50.00 lacs with the connivance of the DH bank and as a result the JD suffered losses to the sum of Rs,30.00 lacs on account of improper valuation of property...."
8. As per subsection (5) of section of the Ordinance, 2001, on filing of a suit under the provisions of the Ordinance, 2001, notice on the defendent could be served in, any mode as enumerated therein.
Subsection (5) of section 9 of the Ordinance, 2001 reads as under:-- "(5) On a plaint being presented to the Banking Court, a summons in. Form No,4 in Appendix 'B' to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other form as may, from time to time, be prescribed by rules, shall be served on the defendant through the bailiff or process-server of the Banking Court, by registered post acknowledgement due, by courier and by publication in one English kinguage and one Urdu language daily newspaper, and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance. In the case of service of the summons through the bailiff or process-server, a copy of the plaint shall be attached - therewith and in all other cases the defendant shall be entitled to obtain a copy of the plaint from the office of the Banking Court without making a written application but against due acknowledgement. The Banking Court shall ensure that the publication of summons takes place in newspaper with a wide circulation within its territorial
9. All the above steps were duly taken by the respondent Bank and thereafter service was held good on the defendants. It is also not the case of the petitioner that before his departure for Saudi Arabia he has informed the bank about his address in Saudi Arabia. Even otherwise, there was no compulsion on the bank to have sent any notice to an address not known to it. The petitioner was well aware that he has obtained loan from the respondent bank and was under obligation to repay the same as per the agreed schedule/time period. Therefore, if he did not reschedule his outstanding liability he was to face the consequences. From the perusal of the application under Order XXI, rule 89, C.P.C. It transpires that another property of the JD/petitioner was also sold through auction and, according to the petitioner/JD's son, it was also sold for much lower price than the prevailing market value of the same. It is also alleged that it was done with the connivance of the bank officers. Same allegation is also made in respect of the property which is the subject-matter of this petition. This is a disputed question of fact which cannot be decided in this petition. However, it is not understood as to why the petitioner or his son, who is now acting as attorney of the petitioner, did not realize that his other property, which is also mortgaged with the bank, would also be sold through auction if the liability is not settled amicably.
10. The plain facts are that the petitioner/JD No,1 obtained CFF from the respondent bank and fully availed it after repeatedly renewing it from time to time. On 19-4-2008, the borrowed amount swelled to Rs,7,156,500 and the respondent bank repeatedly requested the petitioner/JD No,1 to adjust his outstanding liability. It seems that when the petitioner became aware that the respondent bank is to start recovery proceedings, the petitioner/JD No,1 disappeared from the scene. In case he was going to Saudi Arabia with bona fide intention, it was his duty to arrange for the repayment of the outstanding liability against him. He should have informed his son, who is now making hue and cry to delay the execution proceedings to get in touch with the respondent bank with regard to his outstanding liability and if the petitioner was aware of his weak financial status he should have contact the respondent bank in order to reach a private settlement whereby he should have sold his property for the value of his choice without causing the trouble to the bank of filing of the suit for recovery. However, nothing was done.
11. Now, coming to the merits of the present case, the application under Order XXI, rule 89, C.P.C.
Was filed mainly on three grounds that: (i) the mortgaged property was sold for a very low price with the connivance of the Bank, (ii) no notice was served on the petitioner/JD No,1, and (iii) the JD No,1 i,e, the petitioner, was deliberately kept away from the proceedings.
12. The first ground urged on behalf of the petitioner is hardly a ground on which any order in favour of the petitioner could be passed. It is very well known to a person of ordinary prudence that a property sold through auction will not fetch the market value and will always be sold for a price below the market value. In the case reported as East Yarn Trading Company and others v. United Bank Limited and others (2007 CLD 1555), a Division Bench of this Court has held that "merely raising objections as to inadequacies of sale price is not sufficient." We are, therefore, of the opinion that mere inadequacy of sale price in court sale, is no valid ground for setting aside the sale. A buyer is always 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.
13. The next ground that no notice was served on the JD of the execution is also of no help to the petitioner as the petitioner was making every effort to keep away from the proceedings. Even otherwise, when the execution application was filed within one year of the date of the decree no notice is required to be sent to the JD. Therefore, this objection is also misconceived and is repelled accordingly.
14. The third ground taken by the petitioner is that the petitioner/JD No,1 was deliberately kept from the proceedings. This, to say the least, is the most absurd ground as it is not the case of the petitioner that he was forcibly sent to the Saudi Arabia by the respondent. Rather it is the case of the petitioner himself that he was out of country for the last two years at his own. Furthermore, the notices as required under the law were issued and publications were made, in daily newspapers.
What else the respondent-bank could do to serve the petitioner about the pending proceedings.
15. In the present case, after complying with all the formalities, the sale was confirmed on 8-2-2012 and the present application was filed on 17-2-2012. Once the sale is confirmed the ownership right in the property will be deemed to have vested in the auction purchaser. Reliance in this regard may be placed on the case of Muhammad Attique (supra), wherein it was held as under:-- "36. Term 'sale' has also been defined in section 45 of the Transfer of Property Act, 1882 as "the transfer of ownership of immovable property for a price paid or promised". In an auction proceedings title in the property not transferred in favour of the highest bidder, at the time when auction was held and offer was forwarded to the Court for acceptance, the Court sale for immovable property under Order XXI, Rule 84 is subject to proceedings under Orders XXI, Rules 89, 90 and 91, as result of which sale may either be set aside or confirmed. Once the sale, is confirmed, section 65 C.P.C. Provides 'that ownership right in the immovable property will be deemed to have vested in the succeeding bidder retrospectively from the date when auction was held."
16. Furthermore, it is also to be seen that the auction-purchaser is not the decree-holder himself but is a third party and, therefore, his interest in the sale of auction has to be protected as there is a distinction between a decree-holder who purchases a property in auction under his decree and a bona fide purchaser who participated in the auction of a property in execution of a decree to which he is not a party. Reliance in this regard may be placed on the case of Mumtazud-Din (supra).
17. The petitioner, in the garb of challenging the order dated 23-2-2012, whereby the Banking Court dismissed the application under Order XXI, rule 89, C.P.C. Read with section 12(2), C.P.C., is attempting to challenge the judgment dated 30-8-2009 and decree dated 7-10-2009 passed in Suit No,687 of 2008. This he cannot do as the same could only be challenged by filing an appeal under section 22 of the Ordinance, 2001, to which resort was not made by the petitioner. An application under Order XXI, rule 89, C.P.C. Cannot be a substitute for an appeal provided under section 22 of Ordinance, 2001.
18. It is settled principle of law that in matters, "where the High Court itself is the repository of the ultimate appellate, revisional or referral power, conferred by the relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional petition and, to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time." The view is supported by the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCM R 1881).
19. In the case reported as Mir Zaman v. Mst. Sheda and others (2000 SCM R 1699), the Hon'ble apex Court held as under:-- "4. After hearing the ,learned counsel for the petitioner, we do not find any substance in his arguments and thus, are not inclined to grant leave. In this petition for leave to appeal, the order of the High Court passed in Writ Petition No,619 of 1999 has been assailed whereby the writ petition was held to be not maintainable and was dismissed in limine. Learned High Court has rightly observed that after dismissal of their civil suit, they had the remedies of appeal/revision under the Code of Civil Procedure; which were not availed, thus writ petition being not maintainable was dismissed. The plea that the procedure given in the C.P.C. Was lengthy, therefore, the petitioner deemed it proper to avail Constitutional remedy for early disposal of the matter, has no substance at all, for it is not at the choice and discretion of the party to invoke the Constitutional jurisdiction as an alternate remedy when adequate recourse under the law was available. Writ jurisdiction cannot be resorted to when grievance is rectifiable in appellate hierarchy. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 begins with the words "subject, to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- --(a) on the application of any aggrieved party, make an order---The opening words of the Article make it clear that Constitutional jurisdiction of the High Court can only be invoked when no other adequate remedy is provided by law. In the instant case, the petitioners along with others had gone to the Civil Court challenging the order of the Collector, dated 21-8-1998, and after dismissal of their suit, he left it half way and instead of availing the right of appeal/revision as provided by the Code of Civil Procedure, the legal remedies available to the petitioner under the law, invoked the extraordinary jurisdiction of the High Court, which rendered his Constitutional ' petition incompetent and unmaintainable."
20. In the present case, the suit filed by the respondent bank was decreed vide judgment dated 30- 8-2009 against which no appeal, as provided under section 22 of the Ordinance, 2001, was filed.
Accordingly the judgment attained finality. The petitioner had the opportunity to invoke the alternate adequate remedy provided under the Ordinance, 2001 itself but he did not do so at his own peril. Even when his application under section 12(2), C.P.C. Was also dismissed vide order dated 2'1-3-2012 against which no petition for leave to appeal was filed before the Hon'ble apex Court. Now, the petitioner cannot be allowed to circumvent the law.
21. The upshot of the above discussion is that this petition is not maintainable and is, accordingly, dismissed.