1. MAQBOOL BAQAR, J. - The appellant, through this appeal has challenged orders dated 26.6.2012 and 8.10.2012, passed by Banking Court-I at Karachi in execution proceedings bearing No. 120 of 2011.
2. Through order dated 26.9.2012 the Banking Court was pleased to dismiss an application filed by the appellant under the provisions of Order 21, Rules 19 & 20 read with rule 26, CPC, whereas, through order dated 8.10.2012 the applications dismissed by the said Banking Court were filed by Standard Chartered Bank under the provisions of Order 1, Rule 10, CPC and under Order 21, Rule 58, CPC, respectively.
3. The relevant facts of the case, in brief, are that the aforesaid execution application was filed by the respondent No. 1 bank for enforcement of decree dated 17.10.2011, whereby the respondent bank's suit filed against the appellant for recovery of finance amount which became due and payable by the appellant to the bank in respect of a banking transaction, was granted, In terms of the decree, the appellant's property bearing Bungalow No. 30-B, Khayaban- e-Shamsheer, Phase-V, DHA, Karachi, which was mortgaged by the appellant with the respondent bank was also ordered to be sold. Before filing the afore-noted application, the appellant filed two other applications; one under Order 21, Rule 19, CPC and the other under Order 21, Rule 17, CPC, the said two earlier appellant's applications were dismissed by the Banking Court on 7.6,2012. In his application under Order 21, Rule 58, CPC, dismissed through the impugned order dated 8.10.2012 the appellant, as noted in the impugned order itself, raised the following objections:-
(i) No notice of auction of the property was issued to the appellant;
(ii) No revenue assessm ent was obtained from the Provincial Government;
(iii) The market price mentioned in the sale proclamation is presumptive and far less than the market value of the property.
4. It was claimed that the market price of the said property is not less then Rs. 7 Crore. It is further contended that the auction notice does not contain complete terms of sale.
5. Whereas, applications dismissed through order dated 8.10.2012, were filed by Soneri Bank Ltd. For payment of the amount of sale proceedings in respect of the subject property to the said bank towards the satisfaction of a decree obtained by them against the appellant.
6. However, the grounds urged by Mr. Faiz H. Shah, the learned counsel for the appellant before us are; firstly that the price, as mentioned in the sale proclamation has not been fixed by the Court itself and secondly that the Nazir of the Banking Court has sold the property for less than the market value as mentioned in the sale proclamation. Admittedly, the appellant has on 10.5.2011, filed objection to the proposed sale proclamation, whereby he raised several objections pertaining to the amounts claimed by respondent bank and decreed by the Banking Court. However, absolutely no objection was raised in respect of the values/prices, as mentioned in the sale proclamation and therefore it was too late in the day to have raised objection in that regard after the sale was conducted.
7. As to the objection that the property should not have been sold at a price of Rs. 4,60,00,000/- mentioned in the sale proclamation as market value of the property. It may be noted that the sale proclamation, in addition to the above market value, also mentions the forced sale value, being Rs.
8. 3.68.0. 000/-. Reliance of Mr. Faiz H. Shah on a judgment rendered by a Division Bench of the Lahore High Court in the case of NOOR BADSHAH v. HOUSE BUILDING FINANCE CORPORATION (2006 CLD 1451), where the Court auctioneer has sold the property for less than the reserved price is wholly misplaced as in the present case the subject property has been sold for an amount of Rs. 4.15.0.
9. 000/-, which certainly is higher than the forced sale value of Rs. 3,68,00,000/-, as mentioned in the sale proclamation. Contention of Mr. Shah that the market price as mentioned in the sale proclamation should be treated as reserved price and the forced sale value should not be treated as a benchmark, we may respectfully, say is not correct, as the value assessed in case of a forced sale is in fact the relevant value was the sale in question was certainly a forced sale, and it is a matter of common knowledge that the properties .Sold through Courts normally do not, for various reasons, fetch a price that otherwise such proper may fetch, one such reason being, the apprehension that the buyer may, even after the sale is confirmed, have to face the rigours of litigation, as has happened in present case.
10. As regards the other objection that the two values were not determined by the Court itself, we may refer to annexure-E, at page 59 of the file, which is a statement under Order 21, Rule 66, CPC, containing the above two values/prices, from the perusal whereof it can be seen that the same was signed by the learned Judge of the Banking Court himself and therefore it cannot be said that such value was not approved by the Court itself.
11. By order dated 18.12.2012, this Court, upon insistence of the counsel for the appellant that the subject property is worth more than Rs. 65,000,000/-, and in order to provide an opportunity to the appellant to procure a buyer of the property just even for Rs. 50,000,000/-, granted two weeks' time to the appellant with direction to deposit the entire decretal amount and also 5% of the amount at which the property has been sold and also Rs. 25,00,000/- towards the expenses incurred by the auction purchaser towards registration of the relevant sale-deed and misc. Expenses in respect of the subject property, within one week. However, neither did the appellant, till date has brought any offer before this Court nor has he deposited the decretal amount and or any other amount, as directed, in fact as a result of the above non-compliance, the appeal ought to have been treated as dismissed as mentioned in order dated 18.12.2012 itself, however, the Court by way of sheer indulgence adjourned the hearing on 16.1.2013 to 28.1.2013 on which date also the hearing was, at the request of the learned counsel for the appellant, adjourned to 29.1.2013 when the counsel for the parties were heard, however, again by way of indulgence the matter was adjourned to 1.2.2013 i. e.
12. For today, to enable the appellant to endeavour, to reach an amicable settlement with the auction purchaser. However, since no settlement has been arrived between the appellant and the auction purchaser, we have, in the circumstances of the case, as noted above, absolutely no option but to dismiss the appeal. The appeals thus dismissed.
13. At this point, Mr. Faiz H. Shah, the learned counsel for the appellant requests for suspension of the instant order for 10 days, to enable the appellant to file a petition before the Hon'ble Supreme Court.
14. We would, therefore suspend the operation of the instant order upto 11.2.2013.