' EJAZ AFZAL KHAN, J. (TARIQ PARVEZ, J. Agreeing)--This petition for leave to appeal has arisen out of the judgment dated 20.11.2002 of a Division Bench of Sindh High Court whereby it ,dismissed the appeal filed by the petitioner and maintained the order dated 5.6.2002 of the Judge Banking Court-II, Karachi.
2. Brief facts of the case as described in pare 2 of the impugned judgment read as under:-- , "The brief facts leading to this appeal are that respondent No, 2 Habib Bank Limited filed a suit against the appellant and one Yaqoob Habib for recovery of Rs, 1.55,00,000/- which was decreed on 29.5.2000. Execution application No, 154 of 2000 was filed on 28.7.2000 for recovery of the decretal amount by sale of. Mortgaged property under Order XXI. Rule 66, CPC and by arrest and detention of judgment-debtors under Order XXI, Rule 37, CPC. On the above application the Court issued sole proclamation, in consequence whereof the property was ordered to be sold to respondent No, 4 Muhammad Ashraf being the highest bidder in the sum of Rs, 1,35,00,000/-. The appellant tiled an application under section 151, CPC on 9.3.2002 wherein he offered enhanced price of Rs, 1,55.00,000/- for the property in question and prayed for the order that the property be ordered to be sold to him. However, the Banking Court dismissed the said application vide order dated 4.5.2002. Appellant subsequently tiled a fresh application under section 151. CPC wherein he increased his previous offer from Rs, 1,55,00,000/- to Rs, 1,67,02,106/- being the amount in satisfaction of the decree and prayed that the property in question be ordered to. Be sold to him as he was offering Rs, 32,00,000/- more than the bid of respondent No, 4 in whose favour the property was ordered to be sold. Appellant had also deposited a pay order equivalent to the amount of bid in the Banking Court. This application was vehemently resisted by respondent No, 4 on the ground that he had deposited the entire sale price in Court. Sale had been confirmed in his favour, sale confirmation certificate had been issued, original title documents had been handed over to him, and therefore, the Court had no jurisdiction to set aside the sale in his favour and to order the sale of the property in question to the appellant.
' The Banking Court vide impugned order dated 5,6.2002 dismissed the application on the ground that a similar application filed earlier had been dismissed by Judicial Order dated 4.5.2002 after taking into consideration all the issues and Objections raised by the appellant and the relevant Provisions of law and there was no justification for filing a fresh application. The Cqurt further observed that the appellant had failed to establish his right or title in respect of the property in question and the locus standi/capacity in which he had moved the application under section 151, CPC praying for an order Of sale of property in his favour on offering higher price than the price offered by respondent No,
4. Feeling aggrieved and dissatisfied with the impugned order the appellant has assailed the same by way of this appeal".
3. Learned counsel appearing on behalf of the petitioner contended' that neither the salutary provisions of Rules 64, 65 and 66 of Order XXI, Code of Civil Procedure have been complied with nor the proceedings leading to the auction of the property have been held in a transparent manner which has not only resulted in miscarriage of justice but has also reduced the whole process to a farce. Though, the learned counsel added, the writ of attachment has been recorded to have been issued in as many as six orders of the learned Banking Court but the order dated 3.9.2001 would show that it had never been done. It could not be maintained the learned counsel, when the terms of sale -were not settled, therefore. The auction thus conducted could not be vested with any sanctity. The High Court. The learned counsel argued, could have undone the illegality and consequent injustice but it proceeded to decide the appeal on absolutely irrelevant premises, Absence of reserve price, the learned counsel submitted, yet another serious lacuna which would robe the sale and its confirmation of its worth if at all it had any. The learned counsel by winding up his arguments submitted that where the basic order is void. Entire superstructure raised thereon would , fall to the ground. The learned ,counsel to support his contention placed reliance on the cases of "Messrs Majid and Sons and another I) National Bank of Pakistan through Manager and another" (2004 CLD 1616), " Messrs Magi Chemicals Industries v, Habib Bank" (2103 CLD 571), "Appu alias Subramanig Patter v, O. Achuta Menon and others" (AIR 1926 Madras 755), "Mir Wall Khan and another v. Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another" (PLD 2003 S.C. 500).
4. As against that learned counsel appearing on behalf of the respondents contended that the entire proceedings from the point of commencement to the point of confirmation of sale are in line with the letter and spirit of the law, and that any insignificant procedural lapse creeping in at one stage or another cannot be blown out or proportion to make out a case for interference that too when no objection in this behalf has been raised in the fora below within the time prescribed by Article 166 of the Limitation Act or even thereafter. The learned -counsel next contended that once, an application tiled by respondent No, 3 under Section 151 was dismissed, another application on the same grounds could not have been entertained, Though, the learned counsel added, the question of limitation has not been urged by the respondent, nor discussed in any part of the impugned judgment, yet this Court on the strength of Section.3 of the Limitation Act can dismiss a lis on such ground.. The entire affair, the learned counsel argued, appears to be a handicraft of Younis respondent No 3 herein, who being a brother of the petitioner is dead-set to circumvent the process of the Court and thereby protect his own fraud. Rule 66 of Order XXI of the Code, the learned counsel contended, nowhere requires the mention of reserve price, therefore, the 'proceedings culminating in auction of the property cannot be held to be faulty on account of its omission. The 'learned Counsel next contended that though an adjustment was arrived at between the decree-holders and the judgment-debtors but it .Cannot dilute the validity of the sate which has since been confirmed. Learned counsel to support his contention placed reliance on the cases of -Alanhelai and another v. Umrao Singh" (AIR '1931 Privy Council 33) and Hudaybia Textile Mills Ltd.
And otheri v. Allied Ban/ of Pakistan. Ltd: and others" (PLD 1987 S.C. 512). Even otherwise, the learned' counsel submitted, sale effected cannot be challenged through an application under Section 151 of the Code nor could it be challenged on the ground of non-compliance with the provisions of Code regulating proclamation. Publication and conduct of sale in execution. Proceedings under Rule 66 of Order XXI of the Code. The learned counsel on the strength of the judgment rendered in the case of "Mst. Manzoor Johan Beguin v. Haji Hussain Bakhsh" (PLD 1966 SC 375), submitted are ministerial rather than judicial, therefore, the petitioner cannot be allowed to draw any premium if at any stage of the proceedings it has beer-. By-passed. The auction-purchaser. Learned counsel went on to argue, cannot be punished for any of the lapses having its origin to the act of the Court, especially when the prices of the property have gone to a dizzying height. It was, in this context, the learned counsel submitted, that the Supreme Court of India in the case of "Janak Raj v Gurdial Singh and another" (AIR 1967 S.C. 608) declined to undo a sale even if the decree under which it was ordered was reversed. Even otherwise, stressed the learned counsel, strict compliance With Rule 66 of Order XXI of the Code cannot be insisted when the Banking Court in view of Section .18, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has a discretion to adopt a mode. Other than the one prescribed by the Code, for execution of decree.
5. The learned counsel appearing on behalf of respondent No, a submitted that he would not have any L objection to the re-auction of the property as the price fetched by the impugned auction is far less to satisfy the decree passed against the petitioner.
6. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
7. Before we proceed to discuss the merits of the case, it would be worthwhile to refer to Rule 66 of Order XXI which reads as under:-- "66. Proclamation of sales by public auction:-
(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment- debtor and shall state the time and place of sale, and specify as fairly and accurately as possible:- -
(a) the property to be sold;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of winch the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.
(3) Every application for an order for sale under this :rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power .Relating thereto".
8. A look at the above-quoted provision would reveal that it has provided an exhaustive procedure for the proclamation of sales by public auction. How the proclamation of the intended sale shall be caused to be made; how shall it be drawn up after notice to the decree-holders and the judgment-debtors and how would it state the time and place of sale and specify, as fairly and accurately as possible (a) the property to be sold. (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government, (c) any encumbrance to which the property is liable, (d) the amount for the recovery of which the sale is ordered, and (e) every other thing which the Court considers material for a purchaser to know in order' to judge the nature and value of the property.
In the absence of any of the particulars, listed above, the purpose of sale cannot be achieved.
Once these particulars are ignored or overlooked, wild and wayward, would rule the roost. If, in this state of things, it is also ignored who suffers and who gains whether lawfully or otherwise, God knows what would become of the administration of justice. Yes, this provision which was ministerial before ,1908. Does not unnecessarily become judicial, according to the observations made by his lordship Mr. Justice B. Z. Kaikus, as he then was, in the judgment rendered in the case of "Mst.
Manzoor Johan Beguin v. Haji Hussain Bakhslt" (supra), but the failure to comply therewith cannot be defended under any cannons of law and propriety, when it tends to damage the rights of tile decree-holders or those of judgment-debtors, simply because a sale has been effected in favour of a third party. Agreed that proceedings under the aforesaid rule do. Not involve any judicial determination, but at the same time it cannot be disputed that they lay a sure foundation for judicious and judicial determination of the rights and liabilities of the parties. A balance, therefore, has to be struck to protect the rights and liabilities of the parties which could either be imperiled or even extinguished by not complying with the provision which has been inserted by the legislature with design and purpose.
9: . The argument, that strict compliance with Rule 66 of Order XXI of the ,Code cannot be insisted when the Banking Court in view of Section 18 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has a discretion to adopt any mode for the execution of decree has left us unmoved firstly because the Court has no. Discretion to switch over to another mode once it has chosen to proceed under. The Code. And secondly because no other mode ensures that degree of transparency at least in sale as does the provision mentioned above. In no case, such matters can be left to an unfettered exercise of discretion, which tends to shroud transparency when it is needed more in these days than ever before.
10. Getting down to the brass tacks of the case, it would be seen that it was not a single lapse which flashed by without causing harm to any. It was rather a series of plays which appears to have been employed to harm one and benefit another. A look at the orders passed from 7th December, 2000 to 21st January, 2001 would show that things were done in a casual and cursory manner without due application of mind. When writ of attachment was issued; when was it received after being duly executed; if at all it was duly executed what was the fun to issue it again; how and when the terms of the sale were settled. And when and what the Court considered material for purchaser to' know in order to judge the nature and value of the property are the questions which have neither been answered by the record nor by the learned counsel for respondent No,
4. Answers to these questions, according to the learned counsel; are not necessary, notwithstanding their absence goes to. The root of the case and brings the whole proceedings under a thick cloud of doubt. 'What was that extraordinary which necessitated the passing of such orders at the back of the parties is yet another question which has not been, answered. Though this illegality alone, in our view, is sufficient to vitiate the whole Proceedings ending in the auction of the property. Refuge is sought in the judgment rendered in the cases of -Natilidal and another v. Untrao Sindh" and -Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd, and others" (supra) notwithstanding both the judgments are distinguishable on legal as well as factual grounds. It an argument or interpretation of this nature is accepted, we are afraid no sale under the Sun could be questioned even if it caused prejudice or worked havoc to either of the stake-holders. We would have accepted even this argument or interpretation had the price fetched through the sale so-called, matched atleast the decretal amount.
11. Yes, the prices have gone to a dizzying height ever since the sale..Was confirmed in favour of the respondent but this will not deter the Court from undoing the sale when the proceedings leading thereto were marred by serious lapses causing serious prejudice to the decree-holders as well as the judgment-debtors whose amount, which is much greater than that of the auction purchaser, also lay in a static repose till date. The Division Bench of the High Court hearing the appeal could have rectified the wrong by taking timely measures, but strange and surprising part of the episode is that even the Bench disposed of the appeal without due application of mind on the premise that the petitioners do not have the locus standi to file an appeal before it, notwithstanding it was absolutely Incorrect, Agreed that the expression "reserve price" does not find mention in the relevant rule but the words used in the rule pointedly hint thereto. A sale, in its absence, is apt to give a walkover to manoeuvrers to fix any price of their. Choice. A sale thus effected is no sale in the eye of law especially when the number of bidders is meager,, which, indeed is close to nill. A superstructure of sale built on such a shaky infrastructure cannot sustain itself Neither the buttress o f limitation nor the ministerial nature of the rule can prevent it from a fall. We therefore, are constrained to hold that the whole proceedings from inception to the end have not been held in accordance with law and thus cannot be blessed with any sanctity, In the case of "Mir Wali Khan and another v. Manager Agricultural Development Bank of Pakistan, Muzaffargarh and another"
(supra). This Court while dealing with an almost identical proposition focused more on substance rather than form and thus held as under:-- "The remaining grounds on which the objection petition was turned down travel beyond the scope of Rule 90 and as such are not pertinent. A judgment debtoris well within his right to seek annulment of a sale through an application under Rule 89 or an application under Rule 90 which nave different connotations and parameters, if he elects to file an application under Rule 90 it has to be decided within the parameters thereof and not on the basis of his refusal to deposit the decretal amount or accept the offer to purchase the property over and above the price at which it was auctioned or procure a buyer who could offer an amount over and above the auction price.
Similarly, no adverse inference can be drawn with regard to his credentials and conduct. Even otherwise the objection petition filed by the judgment-debtors cannot be said to be tainted with mala fide in the face of the huge amount deposited by them in compliance with the orders of this Court and the High Court. As regards the contention with regard to the locus standi of the appellant, suffice it to say that he is admittedly one of the judgment-debtors and there is no tangible proof on record that he has transferred his share to a third person".
12. Crux of what has been discussed above is that clever manoeuvring forcing way for disposal of a property in execution of a decree for a paltry sum has to be guarded against and jealously so with all the care and circumspection so that it may go for a sum it deserves. The judgments rendered in case of "Messrs Majid and Sons and another v. National Bank of Pakistan through Manager and another", "Messrs Magi Chemicals Industries v. Habib Bank", "App. u alias Subramania Patter v. O.
Achuta Menon and others", "Mir Wall Khan and another v. Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another" (supra) may well be referred to in this behalf. The learned counsel wfien faced with this situation also sought to invoke the application of Section 99 of the Code by submitting that no decree or order could be reversed or modified for an error or irregularity not affecting the merits or jurisdiction but we are afraid the argument addressed on the strength of the aforesaid provision could not be of any help to him when it is rather incontestably clear on the record that such errors and irregularities have affected the merits of the case.
13.- The arguments that none of the objections urged before this Court has been urged in any of the fora below is not based on correct perception as all these have been urged in a few, if not, in high sounding words, in the respective applications as well as memorandum of appeal and revision. The argument that another application could not have been moved when the one moved earlier by respondent No, 3 was dismissed is also without substance when the subsequent application was moved by the petitioners on the grounds which are legally valid and viable. In this background, the judgments cited by the learned counsel for the respondent would appear to be distinguishable and thus cannot support the case sought to be canvassed at the bar.
14. As a sequel, to what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned judgment of the High Court and orders of the Banking Court and send the case back thereto for proceeding de nova in accordance with law.
' ANWAR ZAHEER JAMALI, J. (dissenting).---15. I have had the opportunity of going through the judgment authored by my learned brother Ejaz Afzal Khan, J., and agreed to by my learned brother.
Tariq Parvez, J., which is proposed to be delivered in this petition. Although for both of my learned brother Judges, I have high regard and respect for their legal acumen and competency, however, after going through the proposed judgment, I have not been able to persuade myself with the line of reasoning and the conclusion recorded in it by them.
16. In my opinion, it is a fit case where leave is to be refused and the petition is to be dismissed.
Therefore, by this short order. I dismiss this petition and refuse l'eave to appeal for the reasons to be recorded by me later on separately.
MINQRITY JUDGMENT ' ANWAR ZAHEER JAMALI, J. (dissenting).---With the majority of two to one, the above titled petition was converted into appeal and allowed vide judgment dated 13.2.2013 as. With due respect and reverence to my two other learned brother Judges on the Bench, I have disagreed with their view and opted to record my separate reasons. Following are the reasons for my disagreement in the instant petition:- ' Briefly stated, the facts germane to the controversy are as follows:--
19. On 7.12.1999, Habib Bank Limited (hereinafter referred to as "respondent No, 2"), filed suit No, 1774/1999 before the High Court of Sindh, Karachi on its Banking side (original jurisdiction) against the appellant, which is a sole proprietary concern owned by Mst. Zaibunissa, and one Yaqoob Habib for recovery of Rs, 58,165,053.47. This suit was decreed on 29.5.2000 in the sum of Rs,16702105.84 with the "noobjection", of the appellant and such decree was also not challenged in appeal. Since this judgment attained finality, on 28.7.2000, respondent No, 2 filed execution application No, 154/2000. Before the High Court of Sindh for the execution of decree, which, inter alia, contained prayer for attachment and sale of mortgaged property, Plot No, 211, Industrial Trading Estate Lyari Quarters, Karachi, for the satisfaction of the decree. In December 2000, this execution application, due to change in the pecuniary jurisdiction, was transferred to the Banking Court No, 1, Karachi, wherefrom on 7.12.2000 for the first time notices were ordered to be issued to the appellant/judgment-debtor (in short "J.D") by all modes for 20.12.2000. Which were repeated for 1.2.2001. All the relevant record regarding service of notice upon the J.D's by all modes is available in the R&Ps of execution No, 154 of 2000. In the form of publication of notices in daily "Jang" (Urdu)
Karachi dated 8.1.2001, daily "Dawn" Karachi dated 8.1.2001 courier receipts Nos. 0003387 & 0Q03388 and registered post notices vide receipts Nos. 1535 & 1531, dated 6.1.2001. When on L2.2001 the matter came up before the Banking Court No 1 for proceedings, none of the two J.D's' bothered to appear. However, service on both J.D's was held good, and writ of attachment was accordingly issued against the mortgaged property for 21.2.2011. Finally, the writ of attachment was issued and returned duly executed on 22.5.2001. On which date, further order for issue of sale proclamation was accordingly passed by the Banking Court. In response to it for the first time Nazir of the Banking Court, duly authorized by the Banking Court for this purpose, fixed the auction of attached property in dispute on 31.8.2001 and the case was adjourned to 3.9.2001. For holding such, open public auction for sale of mortgaged property, the sale proclamation was issued by the Banking Court on 24.7.2001, which was got published in one urdu daily newspaper "Jang" Karachi, and one English daily newspaper "Dawn" Karachi on 28.7.2001 and 27.7.2001 respectively. However, the .Nazir of the Court submitted his first report before the Banking Court, disclosing therein that in response to such exercise no bid was received. The Banking Court. Therefore, deterred any further Order due to non- availability of details of dues against the mortgaged property, and also .Directed the decree- holder to produce the original documents of the Mortgaged property, alongwith two sets of verification from concerned department to show whether the property was in the name of mortgagee or not. The Banking Court further enquired from the concerned department to report to the Court, whether there was any other liability against the mortgaged property. The decree-holder was further directed to tile his statement under Order XXI, Rule 66 of the Code for settling the terms of sale, which they complied in the, form of a statement and by tiling all the relevant title documents of the mortgaged property. Thereafter for the second time auction for sale of mortgaged property was fixed by the Nazir on 19.1.2002, for which fresh sale proclamation was issued by the Nazir of the Banking Court on 10.11.2001 in the following terms:- "PUBLIC AUCTION (BEFORE: MS. RUBINA KHAN, JUDGE) IN THE BANKING COURT NO. II.
3rd Floor, State Life Building No,4, Shahrah-e-Liaquat, New Challi, Karachi.
SUIT NO, 1774 OF 1999, EXECUTION NO. 154 OF 2000.
Habib Bank Limited Foreign Exchange Branch Karachi.
DECREE HOLDER
(1) M/s. Lanvin Traders. a proprietorship concern of M/s. Zaibunnisa D/o. A. Aziz carrying on business at 5/37 Arkay Square, Shahra-e-Liaquat, Karachi and R/o. 204 Khayaban-e-Arcade, Block-9, Clifton Karachi.
(2) Yaqoob Habib S/o. Habib Haji Habib, Both Rio. 204 Khayaban-e-Arcade, Block-9, Clifton Karachi.
Judgment Debtors ' Notice is hereby given that under Order 21, Rule '64, C.P.C. 1908, an order has been passed by the Banking Court for sale of the attached property mentioned in the Schedule hereunder in satisfaction of the claim of Rs,.L67,02,105.84 with future mark-up and costs. The undersigned will sell by way of public auction the below mentioned immovable property of Judgment-Debtor on 19.1.2002 at Banking Court No, II at 4:00 p.m.
SCHEDULE OF THE M RTGAGED IMMOVABLE PROPERTY ' All that piece and parcel of land bearing Pot No F-211, Site Survey Sheet No, 20 Survey Sheet No, 35.P/1-35- L/13, admeasuring one acre or thereabout situated in the area of the Industrial Trading Estate, Trans Lyari Quarters. Karachi together with the building, shops walls fittings and fixtures and sheds, appliances and appurtenances affixed installed constructed thereon and bounded as under On the North by Plot No,F/211-A, On the South by 100' Wide Road, On the East by 100' Wide Road, On the West by Plot No,H/9.
SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. Property will be auctioned on condition, as is where is basis.
2. The person declared to be purchaser shall deposit immediately 25 % cash or Pay Order of the amount of this purchase price with the undersigned. No cheque of 25% will be accepted.
3. The balance of the purchase money shall be paid by the purchaser before the Court closes on 15th Day from the date of auction.
4. Thee Sale shall be subject to confirmation by the Court.
5. The undersigned reserves the right to cancel the auction or not to accept any bid even if its is the highest and to cancel the auction at any time.
' Given under my hand and the seal of the Banking Court No, II, this 10th day of November, 2001.
BY ORDER Sd/- ACTING NAZIR BANKING COURT NO. II, KARACHI."
' The above reproduced sale proclamation was again duly published in one Urdu daily newspaper "Jang" Karachi dated 21.11.2001 and one English daily newspaper "Dawn" dated 19.
11. 2001.
20. It is pertinent to mention here that on 19.1.2001 at 1:00 p.m., when the auction of mortgaged property was in progress, the having full knowledge about it, moved an application for stay of auction before the Banking Court, on the sole ground that she intends to file appeal, which was disposed of by the Banking Court on the same day. After these auction proceedings, report .Was submitted by the Nair on the same day, but thereafter there was no further progress in the matter at least for fifteen dates of hearing, when the case was adjourned for one or the other reason without any Order as to confirmation or otherwise of auction proceedings, except filing of one application -under section 151, CPC by a stranger Younus Habib on 9 3,2002, which was dismissed on 4.5,2002. On 22.5.2002, for the first time another application under section 151, CPC, was moved by the 1,D. With the supporting affidavit of Younus Habib, which too was dismissed on 5.6.2002, whereas the auction proceedings held on 19.1.2002 were accordingly confirmed in favour of respondent No, 4 on 17 , 5 , 20D2
21. The last referred order passed on the application of the appellant was challenged by the, J.D.
Before the High Court through First Appeal No, 31 of 2002, which was dismissed by the learned Division Bench of the High Court, vide its short order dated 20.. `11.20025 followed by its detailed reasons recorded later on
22. To sum up, the respective claim of litigating parties before the executing Court/Banking Court was that the decree. Holder was seeking recovery of decretal amount through sale of mortgaged property of the judgment-debtor; the judgment-debtor 'despite service of notice in the execution proceedings remained negligent, reckless and disinterested in contesting the matter: in the background that the decree passed against her was a consent decree, which had attained finality.
The auction purchaser participated in the open public auction of the-mortgaged property owned by the judgment-debtor, held on 19.1.2002 and being highest bidder in the sum of Rs, 1,35,00,000/-; upon payment of total sum got the sale confirmed by the Banking Court on 17.5.2002.
Consequently, after the issuance of sale certificate and transfer of mortgaged property in his favour, being bona fide purchaser, as last limb of transaction he wants session of the auctioned property; and, Yawns Habib, who was is a stranger to the execution proceedings, filed repeated applications before the executing Court to delay, /derail execution proceedings on the sole pretext/plea that he was willing to pay more sum for the mortgaged property then the one. Offered by the auction purchaser in the open public auction held on 19,1.2002.
23. Having clear background of all the relevant facts and the proceedings to decide the fate of this case, the foremost thing for consideration before me is' to find out the answers of following three questions:--
(a) Whether the 'Banking Court, a special Tribunal, established under, section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 20u1 (hereinafter referred to as "the Ordinance of 2001"); having exclusive jurisdiction in the matters specified therein, its own procedure for regulating proceedings, in the .Suits in terms of section 9; its. Own mechanism for execution of its decree, provided under section 19 of the Ordinance of 2001, committed any material irregularity during the auction proceedings, by not mentioning the "Reserve Price" of auctioned property, thereby , causing any legal prejudice to the J.Ds., 'which could justify vitiating the whole proceedings of auction through Court. Mores, when it had already culminated in the form of confirmation of sale on 17.5.2002 in favour of the auction ,purchaser after full payment-of sale consideration and Completion of, all other legal formalities more than than a decade ago?
(b) Whether the auction purchaser (Respondent No, 4f who had purchased the mortgaged property in open public auction as a bona fide purchaser for valuable consideration, and against whom there are no allegations of any nature, after the compliance of full terms of such auction; payment of full sale consideration; confirmation of sale in his favour by the Banking Court; issuance of sale certificate; receipt of original title documents and transfer .Of property in his name, was not entitled for protection of his legal rights in the 'light of case-law as discussed hereinafter?
(c) Whether the two applications under section 151, CPC dated 9.3.2002 and .22.5.2002, later one forming basis of these proceedings and the impugned judgment 'of the High Court, were not hopelessly time-barred in terms of section 24 of the Ordinance of 2001, read with Article 166 of the lirritation Act, 1908?
24. Since the relevant facts of the case have already . Been recorded in the majority judgment dated 7.2.2013, and also" partly recapitulated above, therefore, now, in order to find out the answer of above noted questions, in the 1st place, it will be apt to reproduce hereunder the relevant section 19 of the Ordinance of 2001 about the powers of the Banking Court in execution proceedings, Which reads as follows:- "Section 19. Execution of decree and sale with or without intervention of Banking Court:--
(1) Upon pronouncement of judgment and decree by a Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment-debtor in this regard. Particulars of the mortgaged, pledged or hypothecated property and other assets of the judgment-debtor shall be tiled by the decree-holder for consideration of the Banking Court and the case will, be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of judgment and decree: ' Provided that if the record of the suit is summoned at any stage by the High Court for purposes of hearing an appeal under section 22 or otherwise, copies of the decree and other property documents shall be retained by the Banking Court for purposes of continuing the execution proceedings.
(2) The decree of the Banking Court shall bee executed in accordance with the provisions of the Code of Civil Procedure. 1908 (Act V of 1908) or any other law for the time being in three or in such manner as the Banking Court may at the request of the decree-holder consider appropriate, including recovery as arrears of land revenue.
Explanatron. ---The term assets or properties in sub section (2) shall include any assets and properties acquired benami in the name of 'an ostensible owner.
' In cases of mortgaged, pledged or hypothecated property, the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction of the decree. The decree passed by a Banking Court shall constitute and confer sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose.
(4) Where a financial institution wishes to sell mortgaged, pledged or hypothecated property by inviting sealed tenders, it shall invite offers through advertisement in one English and one Urdu newspaper which are circulated widely in the city in which the sale is to take place giving not less than thirty days' time for submitting offers. The sealed tenders shall be opened in the presence of the tenderers or their representatives or such of them as attend:.
' Provided that the financial' institution shall be entitled in its discretion, t6 purchase the property at the highest bid received.
' The provisions of sub-sections (5), (6), (7), (8), (9), (10), (11) and ..(12) of section 15 shall, nzutatis mutandis, apply to sales of mortgaged, pledged or hypothecated property by a financial institution .In exercise of its powers conferred by sub-section (3).
(6) The Banking. Court and the financial institution shall be 'entitled to seek the services and assistance of the police or security agency in the exercise of powers conferred by this section.
(7) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (Act V of 1908), or any other law for the time being in three:-
(a) the Banking. Court shall follow the summary procedure for purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged,' pledged or hypothecated, and shall complete such investigation within 30 days of filing of the claims or objections;
(b) if the claims or objections are found by the Banking Court to be mala fide or filed merely to delay the sale of the property, it shall impose a penalty upto twenty percent of the sale price of the property.
(c) the Banking Court may, in its discretion, proceed with the sale of the mortgaged, or pledged or hypothecated property if, in its opinion the interest of justice so require: ' Provided that the financial institution gives a written undertaking that in the event the objections are found to be valid, or are sustained, it shall in addition to compensating the aggrieved party by the' payment payment of such amount as may be adjudged by the Banking Court also pay a penalty upto twenty percent of the sale proceeds and such amounts shall be recoverable from the financial institution in the same manner as in execution of decrees passed hereunder."
25. A careful reading of above reproduced provision of law from the Ordinance of 2001 reveals that in the first place, soon after pronouncement of judgment and decree by the Banking Court, without any need to tile a separate application or to issue fresh notices to the judgment-debtor in this regard, the suit is automatically converted into, execution proceedings. It is unlike the procedure prescribed under the earlier repealed Act of 1997, which, by virtue of its section 18 contemplated a written execution application in accordance with the provisions of Code of Civil Procedure, 1908 (the Code), All this seems to have been done by the legislature in its wisdom to ensure that after the decree is passed in the suit, the execution proceedings are not delayed or entangled in the technicalities of service of 'fresh notice etc, to the judgment-debtor, who will be, in most of the cases, definitely interested in delaying such proceedings. It is also mentioned in the sub-section (1)
(ibid) that at the stage of execution, the decree-holder is required to provide the particulars of mortgaged, pledged and hypothecated properties and other assets of the judgment-debtor for consideration of the Banking Court as the matter is to be proceeded for execution of decree soon after the expiry of 30 days (appeal period) from the date of pronouncement of judgment and decree. The proviso to sub-section (1) (ibid) further provides that even in a situation when upon tiling of appeal under section 22 or otherwise, the record of the suit is summoned by the Appellate Court/High Court for the purpose of hearing the appeal, the Banking Court is bound to retain the copies of decree and other property documents with it for continuing with the execution proceedings without any further delay. The sub-section (2) (ibid), also regulates the procedure of the Banking Court for the purpose of execution of decree, and in this regard provides that the Banking Court can proceed with the execution of decree in accordance with the provisions of Code of Civil Procedure, 1908 or any other law for the time being in force or in such manner as move at the request of the decreeholder, consider appropriate, including the mode of recovery as arreas of land revenue (underlined is mine supplied for emphasil. The explanation to this proviso further widens the scope of the Banking Court by giving the meaning of terms assets' and 'properties' mentioned in sub-section (2) that it shall include any asset and property acquired by the J.D. As benami or ostensible owner. Thus, the scheme and the procedure for execution provided under sub-section (2) envisages that the Banking Court is not required/bound to follow the procedure of execution of decree prescribed under the Code or any other law tor the time being in force, but in such manner, as the Banking Court may at the request of decree-holder consider appropriate, including the recovery of decretal amount from the judgment-debtor as arrears of the land revenue. Moreover, a plain reading of sub-section (2) gives a clear impression that use of word "OR" twice has made the application of different procedures of -execution disjunctive, so much so that the Banking Court has been empowered to adopt any appropriate procedure and that too at the request; of the decree-holder. The wisdom behind the framing of sub-section (2) with such wide powers to the Banking Court seems to be to ensure that the executable decrees are saved from the unwarranted and uncalled for technicalities of law. Particularly as prescribed under the Code, which,' as the past experience has shown, made it so 'difficult for the decree-holders that they are seen running pillar to post, before the executing Courts for decades and decades and in a good number of such cases unfortunately their legal heirs have to enter appearance.
26. To continue, reading of sub-section (3) (ibid) further provides that in the cases of mortgaged, pledged or hypothecated properties, the financial. Institutions have been empowered to sell or cause the same to be sold with or Without intervention of the Banking Court, either by public auction or by inviting sealed tenders and appropriate the sale proceeds towards the total or partial satisfaction of their decree. These powers are over and above the powers conferred to the financial institutions for sale of mortgaged property in terms of section 15 of the Ordinance of 2001, wherein even a decree or intervention of the Court is not required for this purpose. This sub-section further lays down that the decree in favour of the financial institutions, as in the instant case, >passed by the Banking Court in itself constitutes and confers sufficient powers and authority in their favour to sell or cause the sale of mortgaged, pledged or hypothecated property together with transfer of marketable title and that no further order of the Banking Court is required for this purpose. The above analyses of section 19 (ibid), therefore, leave no doubt in my mind _about the scheme of execution under the Ordinance of 2001 that a financial institution is not even required to wait for any further direction or order of Banking Court, but has the option of selling the mortgaged property at their own either by public auction or by inviting the sealed tenders. This obviously shows, that the procedure for auction of property contemplated under the Code has absolutely no material bearing in this regard.
27. Moreover, reading of sub-section (4) (ibid) gives guidelines to the financial institutions, who wish to sell mortgaged, pledged or hypothecated property by inviting sealed tenders, that for inviting such offers they shall make advertisement in one English and one Urdu newspapers having wide circulation in the city, in which the sale is to take place, providing therein not less than 30 days' time for submitting the offers and such tenders shall be opened in presence of the tenderers or their representatives. The proviso to this 'sub section further gives discretion to the financial institution to purchase the mortgaged, pledged or hypgthecated property itself at the highest bid received. Sub-section (5) (ibid) simply makes the suh-sections (5) to (12), of section 15 applicable, mutatis mutandis, to sales of mortgaged, pledged and hypothecated property by the financial institutions in terms of sub-section (3). Sub-section '(6) empowers not only the Banking Court but the financial institutions also to seek services and assistance of the police or security agency for implementation and execution of the, decree. Apart from the above, sub-section (7) (ibid) starting with non-obstante clause "notwithstanding" says that leaving apart anything contained in the Code or any other law for the time being in force (underlining supplied for emphasis), the Banking Court has to follow the summary procedure for the purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated and shall complete such investigation within 30 days of tiling of the claims or objections and in case such claim or objections are found by the Banking Court to be mala fide or filed merely to delay the sale of the property, it shall impose a penalty upto twenty percent of the sale price of the property. Besides, the: Banking Court in its discretion can proceed with the sale of the mortgaged, or pledged or hypothecated property during the pendency of such claim or objection, if it forms an opinion that it will be in the interest of justice to do so. However, in such situation, in terms of the proviso to sub-section (7) (ibis/), the financial institution has to give a written undertaking that in the event objections are found to be valid, or are sustained, it shall, in addition to compensating, the aggrieved party by the payment of . Such amount as may be adjudged by the Banking Court, also pay a penalty upto twenty percent of the sale proceeds and such amount all 'be recoverable from the financial institution in the same manner as in the execution of decrees passed hereunder.
28. It is worthwhile to mention here that in the instant case, the execution proceedings were initiated by the respondent No, 2 by filing a written execution application on 29.5.2000, in the prescribed form, as it was the requirement of law under section 18 of the repealed Act of 1997, which stood repealed on 29.8.2001 in terms of section 29 of the Ordinance of 2001. However, after the promulgation of the Ordinance of 2001, in terms of its section 7(b), all pending proceedings under the repealed enactment were deemed to be pending and proceeded further under the new Ordinance of 2001, therefore, by operation of law, filing of earlier execution application under the old statute became totally irrelevant for the purpose of regulating further execution proceedings, under the Ordinance of 2001.
29. The above analyses of section 19 of the Ordinance of 2001 relating to the mode and procedure of execution of decree by the Banking. Court, leave no doubt in my mind about the scheme of the law-makers to ensure sale of mortgaged, pledged or hypothecated property in a most effective manner and at the earliest, with or without intervention of the Court, even during the pendency of objections under sub-section (7) (ibid), in any manner or form as prescribed, what to speak of some irregularity of the nature not even agitated by the J.D. Before the Banking Court, which could be shown to have caused any prejudice to the interest of the J.D. In the present proceedings.
Indeed, conferment/delegation of such wide powers to the Banking Court and the financial institutions for sale of mortgaged, pledged or hypothecated property of the judgment- debtor/guarantor are not aimed to make such sales through any suitable mode prescribed by law, a farce or mockery, so as to cause prejudice to the interest of its owner/judgment-debtor or guarantor as the case may be, but at the same time in order to maintain public confidence and sanctity, such transactions of sale, particularly, with the intervention of the Court, are to be saved and protected from uncalled for technicalities of law prescribed under the Code, which, as the past experience has shown, have backfired in many such situations in favour of the judgment debtors/objectors and in a good number of cases led to the disaster of auction purchaser, who, having purchased the property through Court, enjoy even higher status then a bona fide purchaser for valuable consideration due to the assurance of transfer of clear title in his favour.
30. I am mindful of the fact that fraud, manipulation, collusion, misrepresentation, mala fide etc. On the part of Banking Court, financial institution or the auction purchaser, if proved, would be fatal to any purported solemn transaction of sale. Either through public auction, through negotiation, inviting of renders or by any other mode, but such situation will only arise when this fact is brought to the notice of the Court by the aggrieved party at the earliest in accordance with law and is substantiated/proved to the satisfaction, of the Court,. Conversely, any whimsical attribution to this effect will not prejudice the rights of the, auction purchaser, as the .Principle "Actus Curiae Neminem Gravabit" (an act of the Court shall prejudice no man), will be squarely attracted in his favour in line with the principle of protection of rights of a bona fide purchaser for valuable consideration.
31. Before further dilating upon some other factual aspects of the controversy involved in the matter, I deem it appropriate to observe here that the Courts, while proceeding with any lis, have to clear their mind from any predetermined notions and have to examine the case of the parties before it in a fair and equitable manner, giving due consideration to the case of all the litigating parties by plaeing it in juxtaposition and evaluating their respective claim in line with applicable law. Keeping in mind this elementary principle of fair dispensation of justice; when we look at the relevant facts of the present case, we find that the first application under section 151, CPC, not questioning the legitimacy of auction of mortgaged property in favour of respondent No, 4, but only offering higher bid of Rs, 1,55,00,0001- was moved by one stranger (Muhammad Younus Habib), on 9.3.2002, which was. Seriously resisted by the decree-holder/Bank on the point of its maintainability and legal character of the applicant. To see the exact claim made in this application, it will be useful to reproduce its contents hereunder, which read thus:-- "APPLICATION OS. 151 OF C.P.C. ON BEHALF OF APPLICANT/OBJECTOR - ' It is respectfully submitted by Muhammad Younus Habib, Plaintiff No, 2 in Spl. HCA No, 297/2001 Muhammad Ryas & Muhammad Younus Habib v. Habib. Bank Ltd. Cending before the D.B. Of the Honourable High Court of Sindh at Karachi in respect of 21 accounts mentioned in the Suit and Execution, wherein Interim Order of Stay by the Division Bench of the Honourable High Court of Sindh at Karachi continues.
' That the valuation of auction-in the above sui whose confirmation is being requested by tl-- bidder in auction is much less than the market value of the suit property.
' That the highest recorded bid of the property is shown to be Rs, 1,35,00,000/- whereas the applicant/objector (Muhammad Younus Habib) has a nice offer available with him for the suit property valued.At Rs, 1,55,00,000/- ' If this Honourable Court desires to sell the suit property inspite of pendency and progress in Spl.
HCA No, 297/2001, the offer of Rs, 1,55;00,000/- may be accrued and the applicant/objector may be allowed to deposit the specified amount and in a specified period by the proposed buyer in the Honourable Court.
' The necessary orders for the approval of higher amount of 'Rs, l,55,30,000/- may kindly approved and the tenure and manner of payment may kindly be determined and may kindly be intimated.
To the applicant/objector."
32. A plain reading of the contents of above application reveals that the applicant Younus Habib, had nut uttered anything worth mentioning as to the proceedings of sale conducted by the Nazir of the Banking Court in favour of the auction purchaser in the sum of Rs, 1,35.00,000/-, but simply stated that he has a nice offer available with him for the saie of mortgaged property at Rs, 1,55,00,000/-. This application, after taking. Into consideration all the relevant assertions made therein, was dismissed by the Banking Court vide its order dated 4.5.2002, which remained unchallenged and thus attained finality. The relevant portion of the said order reads as under:-- "The, applicant filed counter-objections and did not refute legal objections raised by decree holder nor replied the objections regarding his locus standi to file the present application neither any explanation or defence with regard to objections ,that the applicant did not placed his better offer for the suit property at the appropriate time.
' It would not be out of context that the J.D. Filed an application to stay the auction proceedings on 19.1.2002 at 1 p.m. When the auction had already been started although proclamation regarding the auction was issued on 20.11.2001 and 19.11.2001 through publication in daily Jung and the daily. News respectively. The application was filed on the ground that J. D's have tiled appeal before the Hon'ble' High Court and the same is fixed for Katcha Peshi on.
22.1.2002. The said application was disposed of on the same day, however, in view of the said application a letter was sent to, learned Deputy Attorney Qeneral with the request to pursue the matter before the Hon'ble High Court on 22.1.2002 for Katcha Peshi a copy of the auction report conducted by this Court as well as case file was also sent to the learned D.A.G. In response to this Court letter, the Standing Counsel for Federal Govt. Of Pakistan sent a letter No, Dy.No, 189-K/2002- DAG, dated 6.2.2002. In the said letter learned Standing Counsel inter linked the order passed by the Hon'ble Division Bench in Spl. High Court Appeal No, 297/2001 with the present execution, for reasons best known to him, as the parties in the H.C.A. And in the present execution application are entirely different. The order referred by the learned Standing Counsel is regarding properties mentioned in Schedule filed by the appellant in the appeal and according to him the property in the present case is mentioned in the said schedule the certified copy of schedule has been produced before this Court and its perusal shows that no property is mentioned in the said schedule, however, suit No, 1774/99 and parties name Lanvin traders is mentioned at, serial No, 7 of the schedule. The learned Standing Counsel in his letter mentioned that "Incidentally the stay granted continued on 6.2.2002 also" the certified copy of order dated 11.12.2001 passed by Hon'ble Division Bench produced by the 1.D., clearly established that the plaintiff Bank was restrained for the interim period, not to dispose of the properties of the appellant without notice to J.D ' The admitted position is that the applicant/objector Younus Habib neither a party to the pretent execution not property auctioned belongs to him, therefore, he has no locus standi to file objection at this stage. As far as better offer proposed by the applicant is concerned, the decree holder rejected the same. Furthermore. I am also of the opinion that the procedure and mechanism laid down by the law is to be adopted by the Court and nothing should be left on the sweet will Of any individual to by pass such legal procedure on the pretext that he is ready to offer or pay more money then the highest bid made during the auction, after following all legal procedure and time frame provided by the law and proclaimed by the Court hence, in view of the above application is dismissed with no order as to costs."
33. Subsequently, on 22.5.2002, another application under section 151. CPC, was jointly filed by the judgment-debtor No, 1, Zaib-un-Nisa, and Younus Habib with a better offer of Rs, 16,707,106/- for sale of mortgaged property in favour of Younus Habib, who did not bother to participate in open public auction held on 19.1.2002. In this application too, no mala fide, fraud or, misrepresentation of any nature was attributed either to the Nazir of the Court, who conducted the auction proceedings on 19.1.2002. In favour of respondent No, 4, being the highest bidder, or against the Bank whose representative fully matched such proceeds to ensure its transparency and , to safeguard the interest of his Bank. The only grievance agitated in this time-barred application was that the mortgaged property so sold through Court auction, could have earned Rs, 32,00,000/- more. And for this reason, the Court shall accept their offer. For ease of reference, the contents of this, application are also reproduced as under:- " APPLICATION UNDER SECTION 151, CPC.
' The above-named Objector and Judgment-Debtor respectfully submit as under:
(1) That after trial, the Honourable Court has been pleased to decree the suit including costs and markup in the sum of Rs, 16,700,300/- for the recovery of which sale of the Cold Storage factory named as Lanvin Traders, Judgment-Debtor was ordered and consequently the property was sold in favour of highest bidder for a sun of Rs: 13,500,000/- but possession of the said property is still with the decree-holder and sale is yet to be finalized.
(2) That Younus Habib S/o Habib who had been previous Chief of Habib Bank Limited took upon himself to settle the entire dispute in respect of liabilities created during his tenure as Provincial Chief of Habib Bank Limited and finally filed Civil Suit No, B-87 of 2001, before Honourable High Court of Sindh at Kaiachi and appeal insuing therefrom bearing Special High Court Appeal "No, 297 of 2001, is pending for adjudication. Mr. Younus Habib in that case has accepted the liability of Civil Suit No, 1774 of 1999 and Execution No, 154 of 2000.
(3) That Mr. Younus Habib is negotiating with higher-ups of Habib Bank Limited and concerned financial institutions and to show his intention to settle the matter, he is submitting Pay Order No, 385928, dated 22.5.2002 for Rs, 16,702,106/-towards the payment of entire decretal liability of Habib Bank Limited in this case. He is further prepared to pay further amount towards the expenses Incurred by the bank towards the sale of the property.
(4) That in the circumstances on receipt of entire existing liability in this case by the Habib Bank Limited by way of Pay-Order of Rs, 16,702,106/-.Dated 22.5.2002 the property be released to the Judgment-Debtor, forthwith.
(5) That it is also pertinent to note that Mr. Younus Habib is paying Rs, 3,200,000/- more than the highest bid of amount, so that entire liability could be satisfied and property be released to the Judgment-Debtor.
' It is, therefore, humbly prayed that in view of payment of entire decretal amount, the suit property be released to the Judgment-Debtor, forthwith."
34. The above application was dismissed by the Banking Court 'vide its order dated 5.6.2002, by assigning therein valid and cogent reasons for its dismissal. It is pertinent to mention here that Younus Habib, though having no locus standi in the execution proceedings, as held by the Banking Court in its earlier order dated 4.5.2002, had also submitted yet another application on 16.5.2002 for re-auction of the mortgaged property, which was dismissed as not pressed vide order dated 22.5.2002, in view of such statement in writing submitted by his counsel before the Banking Court.
This fact alone, in my humble opinion, had put last nail in the , coffin of the claim of Younus Habib/objector, who was none other than President of another commercial Bank, and about whom the auction purchaser has also placed sufficient material in the form of some documents on record, exposing his bad name and reputation as regards his credibility, particularly, in Banking sector and business community.
35. It was after the dismissal of second application under section 151, CPC vide order dated 5.6.2002, that present petitioner ventured to file first appeal No 31/2002, before the High Court of Sindh at Karachi against the order dated 17.5.2002, regarding confirmation of sale in favour of respondent No, 4/auction purchaser and the other order. Dated 5.6.2002. The learned Division Bench in the High Court, while passing its impugned judgment dated 20.11.20021 22.11.2002.
Examined in detail the whole background of this litigation. Particularly the attempts made by a stranger and the judgment-debtor for derailing the execution proceedings through different modes, and finally by a comprehensive and well-reasoned order, dismissed the said appeal in limine, inte alia, for the following reasons: "The first question which' requires to determined is the capacity llocus standi of th appellant to move an application under Order XXI Rule 89, C.P.C. Syed Zaki Muhammad, learn counsel for appellant, submitted that the applicatio under section 151, C.P.C. Could be treated as application under. Order XXI, Rule 89, C.P.0 relying on the pronouncement made in the cases o (1) PAKISTAN FISHERIES LTD., KARACHI AN OTHERS v. UNITED BANK LTD. Reported P.L.D. 1993 S.C. 109 AND (2) CH. AKBAR AL v. SECRETARY, MINISTRY OF DEFENC RAWALPINDI AND ANOTHER reported in 199 S.C.M.R. 2114 to the effect that the Court required lo see the contents and substance of th application 'and not the title or the reference to th provisions of law. The contention advanced by M S. Zaki Muhammad would have been required to considered only after. He was able to give satisfactory explanation with > regard to capacity/locus standi of the appellant to move application under Order XXI, Rule 89, C.P.I Admittedly the appellant was not a party in the suit. He had moved an application under section 151, C, P: C. At the stage of execution offering higher bid for the property in question and praying that it be ordered to be sold to him instead of respondent No, 4/auction purchaser. The reasori given by. Him for moving the application was that Mst. Zaibunnisa, the sole proprietor of M/s.. Lavin Traders, who owned the property in question, was his sister-in-law and he wanted to safeguard her interest by offering higher bid to respondent No, 2 M/s. Habib Bank Limited so that.
Mst. Zaibunnisa was not deprived of her valuable property at a throw away price of Rs, 1,35,00,000/- which would result in .a loss of more than Rs, 32,00,000/-Mr. S. Zaki Muhammad tried to justify, that being a relative of Mst. Zaibunnisa the appellant would be considered to be an interested party having right/interest in the property in question to the extent of having locus standi, or be competent to move the application under Order XXI, rule 89, C.P.C. The contention advanced by Mr. S. Zaki Muhammad was vehemently controverted by Mr. Khalid Anwar who submitted that the language of Order XXI, rule 89, C.P C. Was very 'clear and unambiguous for determining the capacity/locus standi of a party/person to move an application under Order XXI, rule 89, C.P.C. And in view of the said language/wording the appellant did not come up to and fulfill the requisite conditions so as to be entitled to move an application thereunder.
' In order to resolve this controversy it will be appropriate to reproduce sub-rule (1) of Rule 89 of Order XXI, C.P.C. Which is as under:- "89. Application to set aside sale on deposit. 01 Where immovable property has been sold in execution of a decree, any person, either owning 'such property or holding an interest therein by virtue of a title' acquired before such Sale, may apply to have the sale set aside on his depositing in Court."
' From a bare perusal of above sub-rule (1) it is to be noted that a person who would have the right or locus standi to move an application under Order XXI, Rule 89, C.P.C. For setting aside the sale must be either the owner of the property in question or must be holding interest therein by virtue of title acquired before the sale.
' Admittedly the appellant is not the owner of the property in question. The issue as to whether he holds an interest therein also cannot be decided in his favour as being the brother of the husband of Mst. Zaibunnisa he neither had any right or interest in the property in question nor had acquired any interest, right or title therein before the sale of the property as per order of the Court. The contention that he was a 'close relative of the owner of the property and was acting for safeguarding the interest 'of the said owner Mst. Zaibunnisa would not confer any right or interest in the nature as envisaged by Order XXI, Rule 89(1), C.P.C. On appellant to move the application for' setting aside the sale. It is also pertinent to note that the Pay Order deposited by the appellant in Court was also in the name of the appellant and not on behalf of Mst. Zaibunnisa, the real owner of the property in question.
' The appellant had already submitted an application under section 151, C.P,C. On 9.3.2002 for setting aside the sale which was dismissed vide order dated 4.5.2002. Assuming for the sake of arguments the, contention of Mr. ' Z. Zaki Muhammad that the application under section 151, C.P.C.Ought to have been treated as an application under Order XXI, Rule 89, C.P.C. In view of the pronouncement made in the afore-cited two cases then the maintainability of 'the application under section 151, C.P.C. Filed by the appellant on 22.5.2002 would be highly doubtful in view of the fact; firstly that similar application filed by him on 9.3.2002 had been dismissed vide order dated 4.5.2002 and there is no provision in Civil Procedure Code for filing repeated applications under a particular provision. Proper course for the appellant was to have assailed the order dated, 4.5.2002 by way of an appeal under Order XLIII ' Rule 1, C.P.C. If it could establish that the first application under section 151, C.P.C. Dated 9.3.2002 was actually an application under Order XXI, Rule 89, C.P.C. As was submitted by Mr. S. Zaki Muhammad. The appellant did not resort to the appropriate legal remedy available to him for challenging the order dated 4.5.2002 and the same attained finality in view of the pronouncement made by this Court in the case of M/s. DADABHOY CEMENT INDUSTRIES LTD. & OTHERS v. M/S. NATIONAL DEVELOPMENT FINANCE CORPORATION r ported in SBLR .2002 Sindh 435 by placing reliance on the observations made by the Supreme Court in the cases of (i) BOLAN . BANK LIMITED v CAPRICORN ENTERPRISE (PVT.) LTD. (1998 S.C.M.R. 1961) and (ii) MUHAMMAD KHAN AND ANOTHER v MASSAN AND OTHERS (1999 S. C. M. R. 2464). "
36. The language and tenor of above-reproduced order of the High Court makes one important aspect of the case more conspicuous that in reality the petitioners were not at all objecting to the auction of mortgaged property in favour of respondent No, 4 in the sum of Rs, 1.35,00,000/-, held on 19.1.2002 on any factual or legal ground having nexus to any irregularity or fraud within the meaning of Order XXI, Rule 90 of the Code, Nit in appeal they had themselves requested before the High Court for treating and considering their application under section 151, CPC dated 22.5.2002, as an application under Order XXI, Rule 89 of the Code, but without fulfilment of its prerequisite conditions. This aspect of the case has not been even questioned before us by the learned ASC for the petitioner, though it cuts the very root of the present proceedings that they had any grievance of any nature about the auction proceedings instead they simply wanted to buy back 'the mortgaged property at a higher price.
37. Leaving apart what has been discussed above, it is also pertinent to mention here that under the provisions of the Code Order XXI, Rule 66) issuance of proclamation of sale is a ministerial work, to be approved by the Court, for which the decree-holder as well as the judgment-debtor are at liberty to object or to participate. However, it is not the mandatory requirement of this rule that each proclamation of sale must contain the "reserve price" of the mortgaged property under sale.
The wisdom behind this deliberate omission by the law, makers, as visible from the language of Order XXI, rule 66 of the Code, seems to be, not to open another pandora's box at the stage of execution about the exact valuation of the property under sale before being put to auction, which may be exploited by the decree-holder, judgment-debtor or the auction purchaser to their advantage by disputing the valuation factor of auctioned property, and invoking further remedy of appeal by making it an issue to distract further auction proceedings from its normal course. All this is in the background that when the officer of the Court is appointed under rule 65 of Order XXI of the Code, to conduct sale in terms of Court order, after, doing so, he is required to submit his report before the Banking Court for approval, which the Court is not bound to accept or confirm in favour of auction purchaser, and for this purpose each party to such proceedings in appropriate cases, depending upon the nature of his allegations, even an unsuccessful bidder has full right to object, which the executing Court is bound to decide before acceptance/rejection or confirmation of bid, but for cogent reasons and strictly in accordance with law.
38. It will be seen that the Ordinance of 2001 is a special statute, which, as regards procedure (section 19), has provided its own mechanism with vast discretion to the Banking Court and to some extent to the financial institutions regarding the procedure to be adopted for the sale of mortgaged property etc. Thus, in my opinion, from no angle, adherence to any technical' procedure prescribed under the Code can be enforced merely to defeat the process of such sale.
In the instant case, yet another interesting aspect of the case is that the first application under section 151, CPC dated 9.3.2002, which too was time-barred, was not even moved by the judgment- debtor. But by a stranger, and, thus, liable to be rejected out rightly on this ground alone. Again in the second application, the judgment-debtor had offered no explanation whatsoever, about not objecting to the process of auction held on 19.1.2001, within the prescribed period of limitation, when J.D. Was well aware about the holding of auction as per the contents, of her own application for stay of auction dated 19.1.2001, which was dismissed by the Banking Court on the same day.
39. It is a matter of day to day common experience in the dealings of real estate business that it is the actual market value of the property under sale which matters for the buyer to give his offer and not its mere asking price quoted by the owner/seller or the Court officer. In other words, what matters more during the process of sale of mortgaged property, with or without intervention of the Court. Is the transparency and fairness in dealing and conducting such transaction, rather mere quoting of reserved price. Moreso, when it is not the mandatory requirement of procedural law even in terms of Order XXI. Rule 66 or, any other provisions of the Code. At the cost of repetition, it is reiterated here that first application dated 9.3.2002, without entering into the merits of the claim of the judgment-debtor, was found not maintainable by the Banking Court on two counts, being barred by limitation and moved by a stranger, having no locus standi in the matter, which order of the Banking Court dated 4.5.2002 remained unchallenged and, thus, attained finality. Again in the second application under section 151, CPC, dated 22.5.2002, there was no plea raised by the judgment-debtor for non-fixation of reserved price regarding auction or sale of mortgaged property or any prejudice, caused to their interest as a result of such irregularity. The only thing disclosed in both the applications was that the Banking Court was informed about two higher offers of Rs, 1,55,00,000/- and Rs, 16,702,106/-, instead of Rs, 1,35,00,000/- offered by respondent No, 2, auction purchaser, which had on both occasions come from one stranger Younus Habib on 9.3.2002 and 22.5,2002 respectively. There is hardly any need to mention here that a mere increased offer made by some stranger after more than one month and fifteen days to the fall of hammer during auction proceedings could not be accepted by the executing Court as a valid ground for setting aside a valid sale through open auction with intervention of the Court, unless the proceedings of auction were shown to be collusive, fraudulent or lacking transparency. Even some mutual understanding, consent or compromise between the decree-holder and the judgment- debtor or any third party will not effect the rights of the auction purchaser, which the Court is bound to honour and protect in order to maintain the sanctity of such transaction, as per its order.
If any case-law is needed to fortify this view, here a detailed reference to the case of Hudaybid Textile Mills Ltd. v. A.B.P.L. (PLD 1987'SC 512), will be useful which, inter cilia, lays down as under:-- "14.Therefore, the question is whether even if the technicalities of Order XXI; Rule 89 were not attracted, the CoUrt was justified in refusing to confirm the sale on the ground that the decree was satisfied after the sale and before the confirmation of the sale; or even if the provisions of rule 92 of Order XXI, C.P.C. Were not directly applicable, the Court rightly, refused confirmation on the aforesaid ground. In Natzhelal and another v. Umrao Singh AIR 1931 PC 33, the question of law had arisen whether on adjustment between the decree holder and the judgment-debtor come to at any time before the confirmation of an execution sale, would 'nullify the decree taking away the very foundation of the Court's power to execute the decree, viz., the existence of the decree capable of execution. Their Lordship resolved this question in the following manner:-: "In the first .Place, Order XXI, rule 2, which provides for certification of an adjustment come to out of Court, clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected, a third party's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in rule 89 viz. By depositing in Court the amount for the recovery of which the property was sold, together with 5 per . Cent on the purchase money which goes to the purchaser , as statutory compensation, and this remedy can only be pursued within 30 days of the sale; see Article 166, Sch., Lim. Act; 1908. That this is so is, in their Lordships opinion, clear under the wording of rule 92, which provides that in such a case (i.e, where the sale has been duly carried out), if no application is made under rule 99: "The Court shall make an order confirming the sale and thereupon the sale shall become absolute."
' Although the aforesaid decision turns on the provisions of The C.P.C. The general principle laid down therein that once a sale has been effected a third party interest intervenes which cannot. Be disregarded would be applicable in the present case, it cannot,- therefore, be argued that the auction purchaser had no interest whatsoever before confirmation of the sale and the Court could disregard the same by merely looking at the arrangement made between the decree-holder and the judgment-debtor about the satisfaction of the decree, in Mian Muhammad Abdul Khaliq . v. M.
Abdul. Jabbar Khan and others PLD 1953 Lah. 147, similar view was taken and it was held that confirmation of sale cannot be withheld merely on the ground that the decree was wiped out or reversed before confirmation of the sale.
15. But apart from the above another vital principle is involved.. In the American Jurisprudence (2nd Edition) Volume 47, Article 178 at page 440, the general principles governing the discretion to grant or refuse confirmation of a judicial sale are discussed. It has been observed:-- "Although in some jurisdictions a more restrictive rule is followed in cases where it is urged that confirmation should be refused on the sole ground that an advance or upset bid has been received, the confirmation of, or refusal to confirm, judicial sales, as a general rule, rests largely within the discretion of the Trial Court, and such determinations ordinarily will not be reviewed except for manifest abuse of such discretion. The discretion to be exercised is not arbitrary, however, but should be one which is sound and equitable in view of all the circumstances. The Court must act in the interest of fairness and prudence, and with a just regard to the rights of all concerned, and the stability of judicial sales. Thus, if the sale was fairly conducted and the property sold for a reasonable and fair value under the circumstances, . The Court is ordinarily required in the exercise of its judicial discretion to confirm the sale."
' In Article 179 on page 441 further observations as regards the policy of law in .Respect of judicial sales have been made as under:- "Nevertheless, the policy of the law does not require Courts to scrutinize the proceedings of a judicial sale with a view to defeat them, but on the contrary, every reasonable intendment will be made in their favour, so as to secure, if it can be done consistently with legal rules, the object which they are intended to accomplish. As a consequence, in order to maintain confidence in the stability of judicial sales, Courts have adopted the wise policy that confirmation will not be refused except for substantial reasons, and that in the absence of fraud or misconduct, the highest bidder will ordinarily be accepted as the purchaser of the property offered for sale."
' The above passages from the American Jurisprudence clearly point out the dominant principle of law in such cases, namely, the stability of judicial sales. In' this context the argument that since the Court was vested with the wide discretion to choose any mode of execution of the decree, it can likewise refuse confirmation of sale on any ground it chooses is without substance. Judicial discretion vested by statutory provisions cannot be construed in such a manner as it will arm the Court with arbitrary powers and would inevitably destroy the public confidence in the stability of the judicial saleris pointed out by the American Jurisprudence. Therefore, on facts as well as on principle the learned Single Judge went wrong in refusing confirmation on the ground that after the sale the decree had been satisfied. Even otherwise once the Court had made up its mind to execute the decree by attachment and sale by public auction, as long as die order So ' directing was in the ' field, the discretion vesting in it under section 8(3) of the Ordinance stood exhausted and a particular course of proceedings was brought into motion which had to culminate in a result contemplated by legal principles, and this course could not be diverted on the assumption that the executing Court had discretion to choose any mode of execution. In the premises the question of confirmation was to be regulated either by the C.P.C., or equitable principles under the provisions thereof or on general principles as, pointed out ,above. From any angle the refusal of confirmation by the learned Single Judge is unsustainable, and the auction purchaser was entitled, in the circumstances of the case to the confirmation of the auction sale: It was urged that the discretion was properly exercised because the purchaser ,himself was present when the negotiations between the decree-holder and the judgment-debtor were taking place in Court and had Applied at one stage for withdrawal of deposit. This argument is without substance because purchaser bas not been shown to be a consenting party to the arrangement between the decree-holder and the judgment-debtor. He had no doubt at one stage applied for withdrawal of the amount deposited oy him on the ground that there was some clog on the title of the judgment-debtor in the property subjected to Court sale but, before any I orders were passed on this application it was withdrawn stating that the same was made under wrong advice and the Court dismissed the application. It is well-recognized that a proceeding withdrawn with the permission of the Court is wiped off from the record as non-existent."
' Further, as regards the procedure to be followed by the Courts, here a reference to the case of Narsing Das v. Mangal Dubev [(1883) 5 All 163] is also useful, which lays down the following guidelines for this purpose:- "Courts are not to act upon the principle that every .Procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown. To be prohibited by the law. As, a matter of general principle prohibition cannot be presumed."
40. It goes without saying that in a situation where under the statute a financial institution is empowered to sell the mortgaged property on its own, without intervention of the Court (see section 15 of the Ordinance of 2001) or as a second 'option to sell the mortgaged property through intervention of the Court, as in the instant case, such transaction of sale is to be regarded at a much higher pedestal, insofar as its sanctity, genuineness and transparency is concerned. Even in an ordinary transaction of sale between two parties, the rights of bona fide purchaser for valuable consideration are protected under section 41 of the Transfer of Property Act, 1882. Therefore, in a situation, where transaction of sale had taken place through Court under some statutory provisions, the rights of the auction purchaser as bona fide purchaser for valuable consideration would stand on much higher footing, which cannot be disturbed or done away for mere irregularity or any other fanciful reason, particularly, when auction purchaser is not shown to be party to any such irregularity. In the present case, the contents of the two applications, as reproduced above, reveal that in none of the two, any grievance of fraud, collusion, misrepresentation, manipulation or mala fide was attributed either by the judgment-debtor/petitioner or by objector Younus Habib, though .It is an elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and details in that context are to be unfolded in the application/pleadings, and any balled or vague statement to this effect is of no legal consequence. In addition to it, perusal of the contents of the two applications under section 151 of the Code dated 9.3.2002 and 22.5.2002 also reveal that the judgment-debtor as well as objector Younus Habib had approached the Banking Court to challenge the auction proceedings on the sole plea of availability of higher offer of the mortgage, property; in the first instance at Rs, 1,55,00,000/- and thereafter at Rs, 1,67,02406/-, which tact alone obviously could not be considered as a valid ground for striking down a valid process of sale by auction of mortgaged property through Court, or to negate the claim of the auction purchaser for any other technical lapse, though in the instant case there seems to be none.
41. While examining the controversy that whether non-mentioning of reserved price of auctioned property in the proclamation of sale was a material irregularity, which would justify upsetting the concurrent findings of the two Courts below regarding confirmation of sale in favour of respondent No 4 in more detail, it will be useful to reproduce hereunder some other relevant provisions of the Code, which read thus:-- 'Order XXI, Rule 66:
66. Proclamation of sales by public auction.--
(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn, up after notice to the decree-holder and the judgment- debtor and shall state the time and place of sale, and specify as fairly and accurately as possible:-
(a) the property to be sold.;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an , interest in an estate or in part, of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount-for .The recovery of which the sale is ordered; and-
(e) every other thing which the Court considers 'material for a purchaser to know in order to judge the nature and value of the property.
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings Sand containing, so far as they are known to or can be ascertained by the person naming the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto."
42, , A plain reading of the above iule clearly goes to show that where a property is ordered to be sold by Court in the execution of decree through public auction, the proclamation of intended sale is to be drawn up in Court language. Sub-rule *"(2) (ibid), further provides that such proclamation is to be drawn after notice' to the decree-holder and the judgment-debtor, which shall state the time and place of the sale and specify as and possible (underlining supplied for emphasis) with the detailed description of the property to be sold and other material things shown in Sequence at
(a) to (e) of the above rule; sub-rule (3) further provides that an application for 'an order of sale under this rule shall be signed and verified in the prescribed manner as required for signing and verification of the pleadings and contain all details known to the person making such verification relating to the matters specified in sub-rule (2) (ibid). Sub-rule (4) (ibid) further empowers the Court to summon any person whom he thinks necessary for the purpose of ascertaining the matter specified in the proclamation and require him to produce any document in his possession or power relating thereto.
43. The use of guarded language in Rule 66 (ibid), without touching the issue of "estimated price/reserve price" makes it abundantly clear that while postulating certain requirements for sale of property through public auction, the law-makers in their wisdom have refrained from placing any condition for declaration/tixation of reserved price of the property which is to be sold through public auction. Here it is also to borne in mind that the process of public auction in terms of Order XXI, Rule 66 of the. Code is not merely confined to the sale of immovable properties, as normally misunderstood in many cases, but it also include sale of any other property, which may not be an immovable property, but to be sold through public auction in execution of decree by the Court.
Assuming, but not conceding, in case declaration of valuation of the property in the proclamation of sale was so material then there was no hurdle in the way of the law-makers to incorporate such additional clause/condition under Rule 66 (ibid), but they had deliberately not provided any provis3n in this regard in the well-thought and well articulated Rule 66 (ibid) framed by them more than hundred years ago and since then no necessity of any such amendment is felt as yet, except that to elucidate the concept of estimated value of the property, in this context Lahore High Court and Peshawar High Court have amended the rule and added the following words to clause (e) of sub-rule (2): "Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties:"
' Whereas, in the instant proceedings it is nobody's case that any such estimated value of the property was ever furnished before the executing Court, which was not incorporated in the proclamatoin of sale approved by the Banking Court and published in two daily newspapers of wide circulation as req ired by law. To say the least, from the reading of above reproduced rule, it can be safely concluded drat at best, non-mentioning of some particular fact (estimated value or reserved price), was a mere irregularity which was not liable worth consideration (in the present proceedings suo motu), unless it could be shown that it had caused any material prejudice to the interest of judgment-debtor, which element is totally lacking in the present case.
44. Independent of what has been discussed earlier, here a 'reference to the provisions of Order XXI, Rules 89 and 90, of the Code is also pertinent, which have been incorporated by the law makers with the object of further safeguarding the interest of the judgment-debtor against any objectionable sale of his property or otherwise and for limiting the scope of setting aside sale only on the ground of irregularity or fraud, respectively. For ease of reference,' the said provisions of the Code are reproduced as under:- "89. Application to set aside sale on deposit. ---(1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court,--
(a) for payment to the purchaser a sum equal to five per cent of the purchase money; and
(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
(2) Where a person applied under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale."
90. Application to set aside sale on ground of irregularity or fraud. ---Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground, of a material irregularity or fraud in publishing or conducting it: ' Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud: ' Provided also that no such application shall be entertained unless the applicant deposits such amount: not exceeding twenty per cent of the sum realized at the sale, or furnishes such security, as the Court may direct.
' A careful reading of the above provisions of law in sequence would show that Rule 89 is in one sense a double check in order to protect the interest of the owner regarding the sale of his property, inter alia, by fraudulent means or at a throw away price, while Rule 90 is meant to restrict/curtail the powers of the executing Court in the matter of setting aside sales by limiting it to the grounds of material irregularity causing substantial injury to the judgment-debtor/owner of the auctioned property or fraud (underlining supplied for emphasis) and further bracketing it with the condition of depositing an amount not exceeding twenty percent of the sum realized at the sale, so as to discourage and avoid the risk of frivolous applications of such nature. Under Rule-89 (ibid), any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may seek to set aside sale and consequent restoration of his property by depositing in Court for payment to the purchaser a sum equal to five percent of purchase money and for payment to the decree-holder the decretal amount specified in the proclamation. Thus, it is clear that in a situation where the property was under-valued for the purpose of sale, sold at a lesser price then its market value or otherwise, by availing the benefit of this rule, the judgment- debtor or any other person holding interest in the property could get rid of such sale and retrieve the property from the purchaser upon further payment of five percent of the sale price to the purchaser (which in the instant case would have been less than Rs, 700,000/-), and Payment of decretal sum to the decree-holder, while in the instant proceedings neither the judgment-debtor nor any other person came forward to avail this opportunity in time. Howeyer, later on the judgment-debtor came forward after more than four months to offer Rs, 32,00,000/- more than the auction sale price of Rs, 1,35,00,000/, All these facts reaffirm the position that there was no irregularity or fraud what to speak of any other legal impediment which could justify striking down confirmed. Sale through Court in favour of respondent No, 4: It may also be added here that since in substance and form second application under section 151, CPC dated 22.5.2002, which was a joint application on behalf of the judgment-debtor and Younus Habib, was similar to the earlier application under section 151, CPC dated 9.3.2002, it was also barred on the principle of constructive res juclicata, as'the earlier application dated 9.3.2002, was already dismissed by the executing Court vide its order dated 4.5.2002, which order, admittedly, remained unchallenged and thus remained operative in the field.
45. A review of some case-law on this point from Indian jurisdiction goes to show that in the case of Saadatmand Khan v. Phul Kaur [ILR 20 All 412 (P.C)], the Privy Council, while examining the issue regarding contents of proclamation of sale, held that if the valuation was stated, but stated inaccurately, it was a material irregularity and nobody would dispute that proposition. However, they also expressed their view that the Court, itself is under no obligation to fix in the proclamation of sale, its own valuation of the property to be sold. In the case of Md. Said Khan v. Md. Abdus Saati (AIR 1932 All 664), the Allahabad High Court disagreed with the contention of the petitioner that it was necessary to put down the estimated value of the property in the sale proclamation. They held that Rule 66, Order 21, does not make it a necessary requirement for the reason that the value of a property is already very difficult in most cases to ascertain and unless the parties were agreed as to the value to be put in the sale proclamation, such an insertion of the value by the Court would always give rise to later disputes. Again in the case of Dwarka Dass v. Bhawani Prasad and others (AIR 1960 Allahabad 510), the Court held that the language of Order 21, Rule 66, CPC shows that the Court is not required to specify the value of the property in the sale proclamation but only such material facts have to be specified, which enable the prospective purchaser to make his own estimate of its value. In fact, this clause impliedly suggests that it would not be proper for the Court to, influence the mind of any prospective purchaser by their own estimated value. Hence the omission to state the value of the property does not invalidate the sale. To fortify this view, they relied on the case of Md. Said Khan (supra) as well as the Privy Council decision in Saadatmand Khan (supra), where they observed, that while the Privy Council (PC) had stated that it was a material fact if the property was undervalued and this would amount to a material misrepresentation, at the same time it was noted by the PC that the estimate of the value had been made by the decree-holder and the Court , has inserted it in the sale proclamation "gratuitously". The use of this word in their view demonstrated that there was no rule requiring publication of the value in proclamation.
46. The above discussion as regards the scope and interpretation of. Order XXI, Rule-66 of the Code, leaves me in no doubt to hold that firstly nothing could be added or read in a provision of law which is not provided therein by` the legislature; secondly, in the present proceedings no objection as to the form of proclamation of sale was ever raised by the judgment-debtor throughout auction proceedings, so after the successful completion of auction process such objection (no such objection ever raised in the present case), being malafide, cannot be entertained; thirdly, in view of the clear language of section 19 of the Ordinance of 2001, giving vast discretion to the executing Court as regards procedure to be followed by it; Banking Court could not be compelled to adhere to the provisions of the Code for issuing proclamation for sale. Of mortgaged property through public auction.
47. Apart from the above, a review of some more case-law from Pakistani jurisdiction reveals that in the case of Ghulam Abbas v. Zohra Bibi (PLD 1972 SC 337), while dealing with the issue of non- publication of proclamation of sale by beat of drum, the Court held that for the purpose of execution of decree under the provisions of CPC, Order XXI, Rules 67 and 54(2), were not mandatory in nature, therefore, substantial compliance regarding the issue of proclamation of sale was sufficient. In the case of Asma Zafarul Hassan v. United Bank Ltd. (1981 SCMR 108), while examining the scope of Order XXI, Rules 65 & 90, relating to proclamation of sale, this Court held that regarding mode of disposal of property, provisions of law do not prohibit any other mode than by public auction. The Court can, therefore, under its inherent power adopt a different mode to advance the cause of justice. Mere allegation of violation in publication of proclamation of sale, showing no substantial loss to the judgment-debtor, will not thus justify an order to set aside the sale. In the case of Rashad Ehsan v. Bashir Ahmad (PLD 1989 SC 146), with reference to the provisions of Order XXI, Rule 85, qua maxim "Actus curiae neminem gravabir (an act of the Court shall prejudice no man), was discussed and it was held that the technicalities of law shall not be allowed to defeat the ends of justice. In the case of Muhammad lkhlaq Memon v. Zakaria Ghani (PLD 2005 SC 819), the scope of section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was viewed in conjunction with the provisions of Order XXI, Rules 84, 85, 92 and 65 of the Code and it was reiterated that Banking Court is not bound to follow the procedure laid down in the Code, therefore, in appropriate cases, while executing decree, it can depart from the provisions of the Code. It was further held that even where the Court had failed to pass an order for confirmation of sale that would not lead to deprivation of right of auction- purchaser or cause prejudice to him and in such a ease, it would be deemed that the sale stood confirmed and purchaser would be deemed to have become absolute in his title by virtue of S.65, C.P.C. Which would relate back to the date of sale. In the case of Mumtaz-ud-Din Feroze v. Lftikhar Adil (PLD 2009 SC 207), the provisions of section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, qua Order XXI, Rule 66, CPC were considered and it was held that non-compliance of the provisions of Code with regard to proclamation of sale, its publication and conduct of sale in execution are mere irregularities, which cannot be termed as illegalities, thereby rendering the sale as nullity. As regards the rights of auction purchaser, it was further held that after completion of sale, objections as regards irregularity are not to be allowed except on limited ground like fraud etc, as auction purchaser was a bona fide purchaser for valuable consideration, therefore, his interest in sale by auction has to be protected.
48. Independent of what has been discussed earlier, when I look at the case of respondent No, 4 (auction purchaser) in the light of above discussed facts qua his legal status, from another angle, I find that if by undoing his legal rights, an order for re-auction of mortgaged property is passed, it will be grave injustice to him as his investment of Rs, 1,35,00,000/- made for purchasing the mortgaged property in open public auction as bona fide purchaser, which sum is now either with respondent No, 2/decree-holder Bank for adjustment towards decretal amount or lying with the Banking Court, will go down the drain for no fault on his part or any proof of misrepresentation or fraud in the said sale through Court, which stood confirmed on 17.5.2002 In such circumstances, the principle of "Actus Curiae Neminem Gravabit" (an act of the Court shall prejudice no man) will also be attracted to his case as during the intervening period of over eleven years, Pakistani currency has lost minimum 12 to 15 percent per annum of its purchasing power. To sum up, in such type of proceedings, keeping in view the nature of allegations, if any, and the whole material available on record, the case of the auction purchaser is to be examined with the presumption that the transaction of sale through Court in his favour is lawful and bona fide, unless otherwise proved from the record, which element seems to be lacking in the present case.
49. The above discussion of relevant facts, applicable law, coupled with the ratio of some cases from the Indian and Pakistani jurisdiction, in my opinion; furnish complete answer of questions No,
(a) and (b) posed in paragraph-6 above in favour of respondent No,4, the auction purchaser.
50. Lastly, In order to find out the answer of the above framed question No, (c), relating to limitation, it will be useful to reproduce hereunder section 24 of the Ordinance of 2001 and .Applicable Article 166 from Schedule-1 to Limitation Act, 1908, which respectively read as under:- 'Section 24 of Ordinance of 2001.
"24. Application of the Limitation Act, 1908 (Act IX of 1908). ---(1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of 1908) shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Ordinance. .(2) 'A suit under section 9 may be entertained by a Banking Court after the period of limitation prescribed therefor, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period."
Article 166 from the First Schedule to the Limitation Act, 1908. {{TABLE}} Description of suit Period of limitation Time from which period begins to run
166. Under the same Code to set aside a sale in execution of a decree including any such application by a judgment-debtor. Thirty days The date of the sale. {{TABLE}}
51. A combined reading of above reproduced two provisions of law makes it abundantly clear that firstly at the dint of section 24 (ibid), the provisions of Limitation Act, 1908 shall apply to all cases instituted or filed in the Banking Court after the coming into force of the Ordinance of 2001, which, in the terms of its section 7(6) also, include the pending proceedings, while Article 166 (ibid) further provides 30 days period of limitation from the date of sale for filing of application to set aside a sale in execution of a decree, including any such application by the judgment-debtor.
52: Now, reverting to the facts of the present case, it will be seen that the auction proceedings for sale of mortgaged property were held on 19.1.2002, while for challenging such auction proceedings/sale, first application under section 151, CPC, that too by a stranger, was moved before the Banking Court on 9.3.2002 i.e, after 48 days, and the other application under section 151, CPC with similar prayer was moved on 22.5.2002 after more than four months. Thus, both these applications were barred by time and not maintainable. It will be pertinent to mention here that it was the substance rather than the form or caption of two above-referred applications, which was material for determining their nature and the relief sought therein qua the period of limitation, Thus, in the instant case mere captioning of two applications under section 151, CPC has not made any difference for this purpose. It will be seen that invoking of remedy by some aggrieved party 'beyond the prescribed period of limitation creates valuable legal rights in favour of the opposite party, therefore, in such cases delay of each day is to be explained by the defaulting party to the satisfaction of the Court, which cannot be condoned lightly or as of routine, as such arbitrary exercise of discretion will cause serious prejudice to the interest of the opposite party. In the present proceedings, while moving both the above-referred applications after the expiry of prescribed period of limitation, the judgment-debtor and Younus Habib, had not even bothered to file any applicafion for condonation of delay to explain inaction on their part in time,' though they had full knowledge about the holding of auction proceedings on 19.1.2002, as evident from the contents of another application of judgment- debtor for stay of auction proceedings moved before the Banking Court on 19.1.2002.
53. As a sequel of above discussion, leave to appeal is refused, this petition is dismissed and consequently the impugned order of the High Court is maintained, The R&Ps of the case called from the Banking Court be returned immediately.
ORDER OF THE COURT ' By majority of two to one (Justice Anwar Zaheer Jamali disagreeing with the majority view), this petition is converted into appeal and allowed in term of para 14 (supra).
Leave Petition Converted into Appeal//High Court Judgment Set Aside.