' M. SOHAIL IQBAL BHAITI, J.---Through this appeal, the appellant has challenged the order dated 9-9-2002 passed by learned Judge Banking Court-I, Faisalabad through which the application filed under section 12(2), C.P.C. By the appellant as well as the applications filed under Sections 12 and 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 respectively, filed by one Raheem Bibi (deceased mother of the appellant) were dismissed.
2. Precise facts of the case are that the predecessor-in-interest of the appellant, namely Abdul Hameed, and respondent No,4 (namely Ghulam Murtaza) obtained a finance facility from respondent No,1 bank. Since Abdul Hameed son of Din Muhammad could not repay the availed amount, respondent No,1 filed a suit on 29-3-1993 under the provision of Banking Companies (Recovery of Loans) Ordinance, 1979 for recovery of Rs,2,29,558 along with interest. In response to summons, the said Abdul Hameed appeared and filed an application for leave to defend the suit which was apparently barred by time as is revealed from the order dated 13-10-1993 of the learned Banking Court. After filing an application for leave to defend the suit Abdul Hameed absented himself from appearing before the learned trial Court and resultantly a preliminary decree was passed against Abdul Hameed on 6-3-1995. Respondent No, 1 filed an application for passing of final decree on 23-7-1998 which was accepted and the final decree was passed on 26-7-1999. In pursuance to the decree passed the execution proceedings were initiated against Abdul Hameed; auction was held on 29-9-2001; respondent No,2 was declared a successful bidder; sale was confirmed on 30-11-2001 and sale certificate was issued in favour of respondent No,2 on 1-12-2001.
The present appellant filed an application under section 12(2), C.P.C. For setting aside the ex parte judgment and decree dated 26-7-1999 on 16-5-2002 whereas one Raheem Bibi (mother of the deceased appellant) filed two separate applications under sections 19 and 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on 16-4-2002 respectively. In the application under section 12(2), C.P.C. Filed by the present appellant the date of knowledge of passing of the decree has been mentioned as 25-4-2002 through his mother and in an application filed by Raheem Bibi under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the date of knowledge has been mentioned as 14-4-2002 and the source of her knowledge is Ghulam Murtaza (presently respondent No,4). The learned Judge Banking Court through impugned order dated 9-9-2002 dismissed all the applications filed by present appellant as well as Raheem Bibi. Hence, this appeal.
3. The learned counsel for the appellant, at the very outset, mentioned that on 17-12-2012, thirteen points were formulated by this Court which were as under;-
(1) Whether any lawful sale took place;
(2) What is the effect of non-deposit of 75% of the purchase price within fifteen days of the auction;
(3) Did the court approve any schedule of auction;
(4) Did the court auctioneer appear before the court of approval of the schedule or submission of the auction report;
(5) Can nine properties be sold simultaneously through consolidated auction without determining independent reserve price of each such property;
(6) Can a preliminary decree be passed on a date fixed by the Reader of the Court;
(7) What is the limitation for filing an application for passing a final decree;
(8) Were notices under Order XX, Rule 66 issued to the deceased at his address;
(9) Were notices for final decree issued to the deceased at his address;
(10) Can legal proceedings be initiated against a dead person;
(11) What is the effect of applications moved by Ghulam Murtaza respondent No,4 son of the deceased;
(12) Was any finding recorded regarding order dated 9-9-2012 in the application of Raheem Bibi under section 19 of the F.1.0.;
(13) Whether the decree and auction were void ab initio and a nullity.
4. The learned counsel for the appellant argued that no lawful sale took place. It was further argued that respondent No,2 neither deposited 25% of the bid amount at the time of fall of hammer on 29- 9-2001 nor the remaining 75% deposited by the auction purchaser within 15 days as was provided in schedule of the auction. It has been further argued that nine different properties of Abdul Hameed were sold. Moreover, the preliminary decree was passed by the learned Judge Banking Court on a date fixed by the Reader of the Court. It has been further argued that the application for passing of the final decree was filed after a period of three years. No notices were issued under Order XXI, rule 66, C.P.C. It has been further argued that at the time of passing of final decree Abdul Hameed had died and the notices should have been issued to the legal heirs of the said Abdul Hameed. Learned counsel further argued that while passing the impugned order dated 9-9-2002 no findings have been given upon the application under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 filed by Raheem Bibi and finally the learned counsel concluded that the sale was void ab initio.
5. On the other hand, learned counsel for the auction purchaser/respondent No,2 has not only advanced his arguments on the points formulated by this Court but has also drawn the attention of this Court to establish the fact that the application under section 12(2), C.P.C. Filed by the present appellant, the objection petition filed by Raheem Bibi under section 19 of the Financial Institutions (Recovery of Finances Ordinance, 2001 and the application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were collusive. Initially respondent No,4/Ghulam Murtaza, who is real brother of the present appellant, initiated the proceedings for setting aside the final decree prior to sale, which was conducted on 29-9-2001, which was dismissed for non- prosecution on 30-11-2001. Ghulam Murtaza/ respondent No,4 filed an application for restoration of the application on 30-11-2001. Thereafter Ghulam Murtaza/respondent No,4 filed Writ Petition No,22236 of 2001 which was disposed of by this Court through order dated 17-12-2001 while allowing the said Ghulam Murtaza/respondent No,4 to file an appropriate objection petition as there was no impediment in filing such application under Order XXI, rule 89 and Order XXI, rule 90, C.P.C. And it was expected by this Court that in case such application is filed, the same would be decided after hearing the parties in accordance with law but subject to the question of limitation. Thereafter, said Ghulam Murtaza/respondent No,4 filed an application under Order XXI, rule 90 read with sections 47 and 151, C.P.C. On 1-1-2002 for setting aside the final decree and sale certificate which was against the spirit of the order passed in Writ Petition No,22236 of 2001. However on 4-3-2002, as is established from lower court record (Page-338), an offer was made by Ghulam Murtaza/respondent No,4 to pay 5% of the purchase money to the auction purchaser and the decretal amount to the decree holder bank but Ghulam Murtaza/respondent No,4 wriggled out of the undertaking and the objection filed by Ghulam Murtaza/respondent No,4 was dismissed on 1- 4-2002. Learned counsel for the auction purchaser/respondent No,2 went on to argue that the entire proceedings conducted after 1-4-2002 by present appellant and Raheem Bibi were collusive as both the appellant as well as Raheem Bibi have mentioned in their applications that their source of knowledge was Ghulam Murtaza/respondent No,4, which could be inferred to be 29-9-2001.
6. Legal heir of respondent No,4 has already been proceeded against ex parte vide order dated 13- 10-2014.
7. We have considered the arguments advanced by learned counsel for the parties and gone through the record with their able assistance.
8. It is an admitted fact that the sale was confirmed on 30-11-2001 in favour of respondent No,2 when the application filed by Ghulam Muitaza/respondent No,4 under section 12(2), C.P.C. Was dismissed and the sale certificate was issued Subsequently Ghulam Murtaza/respondent No,4, in pursuant to order passed by this Court, filed an application under Order XXI, rule 90 read with sections 47 and 151, C.P.C. For setting aside the decree and sale certificate on 1-1-2002. Although filing of this application by respondent No,4/Ghulam Murtaza was a misconceived exercise as the order passed by this Court in Writ Petition No,22236 of 2001 was only to the extent of filing of objection petition under Order XXI, rules 89 and 90, C.P.C. Which was subject to limitation and subsequently when an offer was made by Ghulam Murtaza/respondent No,4 to pay 5% of the auction money to the auction purchaser and remaining decretal amount to the decree holder bank; Ghulam Murtaza/respondent No,4 had given up his claim for setting aside the judgment and decree as well as the objection to the sale under Order XXI, Rule 90, C.P.C. It must be kept in view that the present appellant as well as Raheem Bibi filed different petitions under section 12(2), C.P.C.
(filed by the appellant) under section 19 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 and under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (filed by Raheem Bibi) which shows collusion amongst respondent No,4/Ghulam Murtaza, the appellant and Raheem Bibi deceased as both have mentioned in their applications that their source of knowledge of passing of decree and the sale was Ghulam Murtaza/respondent No,4; who had filed application under section 12(2), C.P.C. For the first time prior to 29-9-2001.
9. As far the question as to whether the lawful sale took place it is established from the record that proclamation of sale was published in the newspaper; auction took place at the appointed day and time; six bidders participated in the auction and respondent No,2 was declared a successful bidder by offering an amount of Rs,9,50,000. It is established from the record that 25% of the bid amount was deposited with the court auctioneer which was deposited by the court auctioneer in the bank on 1-10-2001 and the remaining 75% amount was deposited on 13-10-2001. (As is established from pages 217 and 329 of the lower court record). It is also established from the record that schedule of auction was approved on 16-10-2000 by the court and Rai Nazeer Ahmed Shibli, Advocate was appointed as court auctioneer and thereafter publication was made in the newspaper and the auction took place according to the terms and conditions of the schedule approved by the Banking Court.
10. As far the contention that nine different properties were sold through a consolidated auction we have observed that this is an erroneous argument. In fact, there was only one property/agricultural land specified by different khewet and khatooni numbers. Even otherwise lumping sale is permissible under the law. The term "lumping sale" has been defined in Black's Law Dictionary as under:- "As applied to judicial sales, this term means a sale in mass, as where several distinct parcels of real estate, or several articles of personal property, are sold together for a 'lump' or single gross sum."
11. As far the arguments raised that no preliminary decree could have been passed on a date fixed by the Reader of the court, we have observed that this point has never been raised in any of the applications filed before the Banking Court by the appellant or Raheem Bibi. However it would be useful to reproduce Order XVII, rule 5, C.P.C. As under:-- "Appearance of parties on the day when the presiding officer is absent. When on any day the presiding officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the presiding officer would be absent) shall appear in the Court in the Court-house on that day and the ministerial officer or the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him."
' It is established from the record that the case was fixed for the arguments by learned Judge Banking Court on 29-6-1994 where after it was adjourned, to 24-8-1994 and then to 4-10-1994 for arguments on application for leave to defend the suit; on which date the learned Judge had been transferred and the Reader of the court adjourned case to 24-11-1994 for arguments on application for leave to defend the suit and then to 10-1-1995. On which date the case was adjourned to 6-3- 1995 for arguments on application for leave to defend the suit but on the said date no one was present on behalf of the defendant and the learned Judge Banking Court passed preliminary decree. At this stage it would be expedient to reproduce Para-5 of a judgment reported as Imtiaz v.
Mst. Shagufta (2002 CLC 1272);- "As regards the objection that the case was adjourned to 5-5-2001 on Note Reader, reference may be made to Order XVII, rule 5, C.P.C., which provides that when a Presiding Officer is absent on a date in the proceedings of a suit and the ministerial officer of the Court hands over to the parties slips of papers specifying the date for the proceedings in the suit, the Court shall then conduct the same proceedings on the adjourned date as schedule on the day the Presiding Officer was absent. In the order of 14-4-2001, the Reader had specifically stated "parties along with their counsel present. Presiding Officer is on casual leave. So, put up on 5-5-2001 for previous proceedings". Thus, on 5-5-2001, the court had conducted the same proceedings for which the case was adjourned on 3-3-2001, that is, depositing of the court-fee. The second objection of the learned counsel for the petitioner is to, therefore, of no substance."
12. In the context of proceedings in a civil suit, the word "proceed" would mean the taking of steps for further progress of the suit. In view of the word "proceed" with the suit on such date or fixed some other date thereafter means the conduct of same proceedings by the court on the date fixed by its ministerial officer which was scheduled to be conducted by the court on the date when the Presiding Officer was absent, was on leave or otherwise. It would mean the date to which the case is adjourned under rule 5 of Order XVII, C.P.C. Will be for the same purpose for which the case was fixed by the Presiding Officer for the date on which he did not hold the court. The Hon'ble Supreme Court of Pakistan in a judgment reported as Nowsheri Khan v. Said Ahmad Shah (1983 SCM R 1092) has observed as under:- "The Reader of the Court before the amendment in the Civil Procedure Code, referred to above, was not authorized to fix a date for proceeding with the suit in the absence of the Presiding Officer of the Court but could fix a date for purposes of enabling the Court to fix another date for the future conduct of the proceedings. It was only as a result of the new rule 5 inserted in Order XVII, that this has become possible."
13. As far the arguments which had been formulated by this Court as to the limitation for filing an application for passing a final decree there is no cavil to this proposition that the application for passing a final decree can be filed within 3 years as is held by Hon'ble Supreme Court of Pakistan in Habib Bank Limited v. Muhammad Abbas and 2 others (PLD 2001 SC 489) but to our mind the present case has different and peculiar circumstances. The preliminary decree was passed on 6- 3-1995 and under the law laid down by the Hon'ble Supreme Court of Pakistan the time for filing of an application for passing of final decree was available till 5-3-1998 but during this period Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was promulgated on 2- 2-1997. Section 22 of the Act, 1997 which relates to the application of Limitation Act is reproduced as under;- "22. Application of the Limitation Act, 1908, Act IX of 1908. (1) Subject to subsection (2), the provisions of the Limitation Act, 1908 (Act IX of 1908),, shall not apply to any suit, application or other proceedings filed or transferred to a Banking Court under this Act.
(2) 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 coining into force of this Act: ' Provided that in relation to past transactions a fresh cause of action will be deemed to arise, for purpose of limitation only, on the date on which this Act comes into force."
' The proviso to section 22 of the Act, 1997 gave a fresh cause of action and this view has been given in N.D.F.C. v. Anwar Zaib White Cement Ltd. And others (1999 MLD 1888) and further affirmed by the Hon'ble Supreme Court of Pakistan in Khalid Qureshi and 5 others v. United Bank Limited 1.1.
Chundrigar Road, Karachi (2001 SCMR 103).
14. As far the contention of learned counsel for the appellant that proceedings could not have been initiated against a dead person, we are of the view, that when the suit was filed on 29-3-1993 Abdul Hameed was alive who appeared and filed an application for leave to defend the suit when the preliminary decree was passed Abdul Hameed was still alive. Under Order VIII, rule 13, C.P.C. Abdul Hameed, when appeared before the Banking Court, was under obligation to provide the list of representatives. The effect of non-providing the list of legal representatives has been discussed by the Hon'ble Supreme Court of Pakistan in a judgment reported as Mst. Lalan Bibi and others v.
Muhammad Khan and others (2007 SCM R 1193). In view of the dictum laid down by the Hon'ble Supreme Court of Pakistan Abdul Hameed was under legal obligation to file the list of legal representatives and to nominate a person to intimate the court of the fact of the death of the defendant and to furnish court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of Order VIII, rule 13, C.P.C.
Non-compliance of Order VIII, rule 13, C.P.C. Authorizes the court to proceed with the suit notwithstanding the death of such defendant. Even if legal representatives of dead arty are not impleaded, the same would not be fatal to the proceedings; In the present case suit had not been filed against a dead person and this objection cannot be raised by the present appellant, to non- suit respondent No,1 or respondent No,2. Even otherwise in view of Order XXII, rule 4(3), C.P.C.
Proceedings before the Banking Court while passing the final decree were competent notwithstanding the subsequent death of Abdul Hameed.
15. At this stage we would like to observe that the present appellant and Raheem Bibi in their respective applications admitted that they acquired knowledge of the passing of the decree as well as of the auction through Ghulam Murtaza/respondent No,4 but in their applications they have not pointed out any conflict of interest with Ghulam Murtaza. As has been discussed in the earlier part of this judgment that Ghulam Murtaza/respondent No,4 initially filed an application for setting aside the ex parte judgment and decree dated 26-7-1999 which was dismissed on 30-11-2001 and then the respondent No,4/Ghulam Murtaza filed Writ Petition No,22236/2001 which was disposed of by this Court on 17-12-2001 allowing Ghulam Murtaza/respondent No,4 to file objection petition to the sale and Ghulam Murtaza/respondent No,4 initially filed an application under Order XXI, rule 90 read with sections 47 and 151, C.P.C. But subsequently Ghulam Murtaza/ respondent No,4 gave up all the objections to the decree as well as sale when he undertook to deposit 5% to be paid to the auction purchaser and the decretal amount to be paid to the decree holder bank but he did not fulfill the undertaking made on 4-3-2002 and his objection petition was dismissed. Thus, the Estate of Abdul Hameed is bound by the action of Ghulam Murtaza/respondent No,4. This proposition has been discussed by the Hon'ble Supreme Court of Pakistan in a judgment reported as Mst. Afzal Begum and others v. Y.M. C.A. Through its General Secretary (PLD 1979 SC 18) in the following words;- "In Kunhi Kalanda Boari v. Kunhipakki and others (1) Preliminary decree was passed in a suit brought to enforce a mortgage and one of the defendants had died. He left three heirs, one of them being a minor son, and the other two were his grandfather and mother. They were not brought on record as legal representatives before the final decree was passed, though two of them who were adults were already on record. In these circumstances the Court held that the grandfather and mother sufficiently represented the estate and the final decree that was passed and the sale that was held in execution were binding upon the entire estate, including that of the infant son."
' Following the dictum laid down by the Hon'ble Supreme Court of Pakistan we are of the considered view that appellants being the legal representatives of Abdul Hameed could not take different positions and after passing of orders dated 30-11-2001 and 1-4-2002 upon the applications filed by Ghulam Murtaza/respondent No,4 were estopped to raise any objection to the decree or the sale.
16. At this stage it would also be useful to refer to the fact that objection to the sale can be raised within 30 days under Article 166 of the Limitation Act, 1908. Mst. Raheem Bibi in her application under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has mentioned that she acquired knowledge of the alleged sale from Ghulam Murtaza/respondent No,4 who had been filing applications prior to 29-9-2001 when the auction took place meaning thereby that the objection petition filed by Raheem Bibi was barred by time. It is also worth mentioning that after passing of the impugned order Raheem Bibi did not challenge the impugned order dated 9-9- 2002 without prejudice to this fact that her objection petition was time barred and she remained alive, according to the learned counsel for the appellant, till 11-5-2003. It is interesting to note that the present appellant has filed this appeal for setting aside the order passed upon an application under section 12(2), C.P.C. But during the arguments the appellant has raised all the objections to the sale which were raised by Raheem Bibi deceased in her application under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which was otherwise time barred as has been observed by us, and the arguments have been advanced upon the objection petition which had been filed by Raheem Bibi; as the appeal upon an order passed on application under section 12(2), C.P.C. Has been declared to be barred in a judgment reported as Javaid Tan veer Mughal v. Agricultural Development Bank of Pakistan through Branch Manager and 3 others (2004 CLD 748) the Hon'ble Division Bench of this Court while discussing the scope of appeal, upon application filed under section 12(2), C.P.C. Has observed as under;- "Coming to the question about competency of the appeal, suffice it to say that even under the provisions of C.P.C., an order passed on an application under section 12(2), C.P.C. Which provision has been made applicable before the Banking Court under the principles of legislation by reference, no appeal is provided. It is inconceivable that legislation in the special laws by making the final order of the Banking Court, appealable, has provided a remedy of appeal to a person, whose application under section 12(2) has been dismissed. Therefore, the present appeal is incompetent."
' It is pertinent to mention here that no request in writing or verbal has been made by the learned counsel for the appellant for treating this appeal as a constitutional petition.
17. As far the argument that notices for final decree were not issued to the deceased Abdul Hameed at his address i,e, Chak No,267/R.B Jalandar Tehsil and District Faisalabad, we have observed that upon filing a suit Abdul Hameed appeared and filed an application for leave to defend the suit and no address of Abdul Hameed has been mentioned upon the application filed for passing of final decree and it would be presumed that the notices were sent at the same address which was provided in the head note of the plaint. Both the appellant and Raheem Bibi in their respective applications mentioned their addresses as Chak No,267/R.B Tehsil and District Faisalabad.
18. As far the argument that auction is void on account of some irregularities we are of the opinion that the property sold in auction though not as valuable as alleged but could nevertheless fetch more price in the market, but it is a common knowledge that properties sold through courts do not fetch the market price for a number of reasons the foremost amongst them being the reluctance on the part of the purchasers to involve themselves in transactions which entail proceedings before the court and the present case is a classical example as to why the purchasers shy away from participating in judicial sales. This Court in a judgment reported as Messrs Ashraf Agro and others v. H.B.L. (2008 CLD 449) has discussed the scope of inadequacy of the sale price as under;- "Mere inadequacy of sale price in court sale is no valid ground for setting aside the sale. Moreso, when every possible effort is made to fetch maximum price. A buyer is always reluctant to purchase a property in Court sale as it involves litigation, it is time consuming and has the element of uncertainty. The Court sales do not fetch market price for the reason and sale through auction cannot be set aside on this score alone."
19. It would also be useful to refer to a judgment reported as Hudaybia Textile Mills Ltd. And others v.
Allied Bank of Pakistan Ltd. And others (PLD 1987 SC 512). The Hon'ble Supreme Court of Pakistan while discussing the principles of confirmation of judicial sale and making reference to American Jurisprudence has observed as under;- "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."
20. At this stage, at the cost of repetition, we observe that Mst. Raheem Bibi acquired knowledge of sale conducted on 29-9-2001 from Ghulam Murtaza/respondent No, 4 who had filed an application for setting aside the judgment and decree dated 26-7-1999 prior to 29-9-2001. The objection was filed by Mst. Raheem Bibi after Ghulam Murtaza/respondent No,4 exhausted all his remedies i,e, filing of application under section 12(2), C.P.C., Writ Petition No,22236 of 2001 before this Court and application under Order XXI, rule 90 read with sections 47 and 151, C.P.C. And lastly made an offer on 4-3-2002 and when that application was dismissed on 1-4-2002 the present appellant and Mst.
Raheem Bibi came on the scene which fact establishes the connivance and collusion amongst the present appellant, Ghulam Murtaza/respondent No,4 and Mst. Raheem Bibi without prejudice to the fact as has been observed by this Court that the objection petition and application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 filed by Mst. Raheem Bibi were barred by time and the present appeal against the order passed upon the application under section 12(2), C.P.C., filed by the present appellant, is also barred in view of the law laid down by this Court in Javaid Tanveer Mughal v. Agricultural Development Bank of Pakistan through Branch Manager and 3 others (2004 CLD 748).
31. For what has been discussed above and keeping in view the conduct of the appellant, respondent No,4/Ghulam Murtaza (brother of the appellant) and Raheem Bibi this appeal stands dismissed.