M. Sohail Iqbal Bhatti, J.--Through this appeal, the appellant has challenged the order dated 26.8.2011 passed by learned Judge Banking Court-IV, Lahore through which the sale certificate issued in favor of the appellant on 25.7.2000 was Cancelled on the ground that Respondent No, 1 had paid the settled amount of Rs, 13,50,000/- to the decree holder/Respondent No, 2.
2. The facts of the case are that Respondent No, 2 obtained a decree against Respondent No, 1, during the execution proceedings the house of Respondent No, 1 was put to auction on 6.5.2000 the property bearing No, 32-D Muslim Block, Allama Iqbal Town, Lahore measuring ten marlas which was purchased by the present appellant, the sale was confirmed on 19.7.2000 and the sale certificate under Order XXI Rule 94, CPC was issued in favor of the appellant on 25.7.2000 in pursuance to the auction held on 6.5.2000. The Respondent No, 1 filed an application for review of the order dated 19.7.2000 under\ Order XXI rule 67, 73 and 90 read with Section 1.51, CPC which was dismissed through order dated 1.9.2000 by Judge Banking Court-IV,' Lahore while observing as under: "The review is not available to the judgment debtor/petitioner. The right to file objections was there available to him but he has not availed the same. It is too late to consider this petition. The petition is accordingly dismissed."
3. Against the order dated 1.9.2000 W.P.No, 19495/2000 was filed before this Court which was dismissed on 26.9.2000. Thereafter Respondent No, 1 again filed an application under Order XXI Rule 89, CPC before the Banking Court on 19.4.2001 with a prayer to set aside the sale certificate. This application was dismissed on 23.4.2001.
Aggrieved by the order dated 23.4.2001 Respondent No, 1 filed F.A.O. No, 110/2001 before this Court which was dismissed. On 13.7.2004. Aggrieved by the order dated 13.7.2004 passed by this Court in F.A.O. No, 110/2001, C.P.No, 1756/2004 was filed before the august Supreme Court of Pakistan which was dismissed on 14.6.2005. Thereafter Respondent No, 1 filed Review Petition No, 165/2005 which was dismissed for non-prosecution on 11.6.2009 and again C.M.A. No, 4837/2009 was filed in Review Petition No, 165/2005 which was also dismissed on 5.1.2010. It would be not out of place to mention here that in the parallel round of litigation arising out of the dismissal of the application filed under Section 12(2), CPC for setting aside the judgment and decree dated 22.5.1997 regarding the liability of Respondent No, 1 may went up to the Supreme Court of Pakistan and the liability of the respondent was reduced from Rs, 18,03,781/- to Rs, 13,50,000/- in Civil Appeal No, 1226/2001 but it was specifically observed in the order dated 25.10.2001 by the Hon'ble Supreme Court of Pakistan in Para No, 13 as under: "It is mentioned here that for realizing the decretal amount the house of the appellant was sold through auction proceedings and the same was purchased by one Mst. Balqees Abbas, who is present in Court and states that entire auction price was paid by her to the concerned authorities and the possession of the house was also delivered to her. This judgment would have no, bearing whatsoever en said auction proceedings. If any proceedings in that regard are pending before any Court or fresh proceedings are initiated in respect of said house, the same would be decided on merits according to law, without being influenced by any observations made herein above."
4. In pursuance to the judgment dated 25.10.2001 an application was filed by Respondent No, 1 on 20.11.2001 for return of the original documents but this application was dismissed by learned Judge Banking Court on 11.12.2001 while reproducing Para No, 13 of the judgment of the august Supreme Court of Pakistan and observing that the judgment passed by the Hon'ble Supreme Court of Pakistan in no way confers any title upon Respondent No, 1 as the auction conducted on 6.5.2000 had been confirmed and sale certificate has been issued in favor of the present appellant who has resultantly acquired proprietary rights over the property and Respondent No, 2 no longer retains any interest in the said property. Against the order dated 11.12.2001, F.A.O. No, 14/2002 was filed before this Court which was dismissed in limine on 21.1.2002 and the learned Division Bench of this Court made the following observations in Para No, 3 of its order while dismissing the appeal:- "We have gone through the judgment dated 25.10.2001 of the Hon'ble Supreme Court in C.A.No, 1226/2001 with the assistance of the learned counsel. We find that Hon'ble Supreme Court did take notice of the fact that house has been sold in execution and auction purchaser has paid the price and possession has been delivered. Was specifically observed that the said judgment would not have any bearing on the said auction proceedings. This being so, the learned Judge Banking Court has not committed any error in refusing to return the documents particularly when the sale in favor of the auction purchaser is still intact and has not been set aside in any manner prescribed by law.
FAO is without any force and is accordingly dismissed in limine."
5. The Respondent No, 1 had also filed Crl. Original No, 1019W/2000 which was decided on 12.4.2007.
The execution petition filed by Respondent No, 2 was consigned to record room on 19.3.2008.
Respondent No, 1 filed an application on 11.11.2010 for clarification of the order dated 19.3.2008 and again another application was filed on 31.5.2011 for clarification of the order dated 19.3.2008 and cancellation of the sale certificate. Upon the said application there is a report that present appellant had not been served as she was not available at the address mentioned in the application; the learned Judge Banking Court upon the said application filed by Respondent No, 1 passed the impugned order on 26.8.2011 directing the appellant to surrender the sale certificate before Banking Court for its cancellation. Hence, this appeal.
6. Learned counsel for the appellant has argued that the impugned order passed by the learned Judge Bankin Court is against law. It has been further argued that the matter regarding the sale in favor of the appellant had been finally decided in C.P.No, 1756/2004 by the august Supreme Court of Pakistan. The learned counsel went on to argue that in Civil Appeal No, 1226/2001 specific observation had been made in Para No, 13 which did not affect the rights of the present appellant in whose favor the sale certificate had been issued on, 25.7.2000 after the confirmation of sale dated 19.7.2000. The learned counsel further argued that the impugned order had been passed in violation to the order passed by this Court in F.A.O. No, 110/2001 and F.A.O. No, 14/2002. It has been further argued that the order passed in F.A.O. No, 110/2001 dated 13.7.2004 had been upheld by the Honourable Supreme Court of Pakistan in CP No, 1756 of 2004 through judgment dated 14.06.2005.
The learned counsel argued that impugned order was void ab initio.
7. On the other hand, learned counsel for the Respondent No, 1 argued that since a settlement had been effected between Respondents No 1 and 2 and Respondent No, 1 had paid the entire settled liability of Rs, 13,50,000/-. The Respondent No, 1 was entitled to the cancellation of sale certificate and supported the impugned order dated 26.8.2011,
8. No one is present today on behalf of the Respondent No, 2- Citi Bank N.A. Although Respondent No, 2-Citi Bank N.A.Was represented. Therefore, Respondent No, 2-Citi Bank N.A. Is preceded against ex-parte.
9. We have considered the arguments advanced by the learned counsel for the parties and have also gone through the record.
10. It is an admitted fact that Respondent No, 2 filed a Suit for Recovery of Rs, 18, 03,781/- which was decreed on 22.5.1997. The auction was held on 6:5.2000 but Respondent No, 1 did not file any objection petition and it was only after the confirmation of sale on 19.7.2000 and issuance of sale certificate on 25.7.2000 the Respondent No, 1 filed an objection petition which was dismissed by the learned Judge Banking Court on 1.9.2000. Thereafter, the Respondent No, 1 filed another application under Order XXI Rule 89, CPC with the prayer to cancel the sale certificate which was dismissed on 23.4.2001 by the learned Judge Banking Court. We are of the considered view that under Article 166 of the Limitation Act, 1908 the objection petition under Order XXI Rule 90 or Rule 89, CPC could only have been filed Within 30 days from the date of sale but Respondent No, 1 never challenged the sale held on 6.5.2000 and it was only after confirmation of the sale on 19:7.2000 and issuance of sale certificate on 25.7.2000. The Respondent No, 1 filed an application for review which being time barred was dismissed. Similarly, another application filed by the Respondent No, 1 under Order XXI Rule 89, CPC had rightly been dismissed on 23.4.2001. It is correct that the liability of the Respondent No, 1 had been fixed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No, 1226/2001 but while going through Para No, 13 of the judgment passed by the august Supreme Court of Pakistan it becomes crystal clear that the august Supreme Court did take notice of the fact that the house has been sold in execution and appellant being an auction purchaser had paid the entire price and possession had been delivered to her, therefore, the august Supreme Court of Pakistan observed that the judgment of Hon'ble Supreme Court would have no bearing whatsoever on the auction proceedings.
11. At this stage, it would be beneficial to refer to the decision made by this Court in F.A.O. No, 110/2001 the question of settlement between Respondent No, 1 and Respondent No, 2 was discussed by this Court and reference has also been made to the decision made by the Honourable Supreme Court of Pakistan dated 25.10.2001 passed in Civil Appeal No, 1226/2001. In Para 5 of the judgment passed in F.A.O. No, 110/2001, the learned Division Bench of this Court has reproduced Para 13 of the judgment passed in Civil Appeal No, 1226/2001. We are of the considered view that merely for the reason that Hon'ble Supreme Court in Civil Appeal No, 1226/2001 had determined the liability of Respondent No, 1 at sum of Rs, 13,50,000/- such amount having been paid itself does not render the purchase in favor of the appellant as illegal and void; and the Hon'ble Supreme Court was conscious of the above fact, therefore, a specific observation was made by the Hon'ble Supreme Court in Para No, 13 of the judgment passed in Civil Appeal No, 1226/2001 which is reproduced as under:-- "It is mentioned here that for realizing the decretal amount the house of the appellant was sold through auction proceedings and the same was purchased by one Mst. Balqees Abbas, who is present in Court and states that entire auction price was paid by her to the concerned authorities and the possession of the house was also delivered to her. This judgment would have no bearing whatsoever on said auction proceedings. If any proceedings in that regard are pending before any Court or fresh proceedings are initiated in respect of said house, the same would be decided on merits according to law, without being influenced by any observations made herein above."
Even otherwise in light of the dictum laid down by the Hon'ble Supreme Court of Pakistan in Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others (PLD 1987 Supreme Court 512) we are of the view that Court cannot disregard the interest of auction purchaser by merely looking at the arrangement between decree holder and the judgment debtor.
12. We are of the considered view that any arrangement made between Respondents No, 1 and 2 or any payment by Respondent No, 1 to the decree holder/Respondent No, 2 based upon compromise, would not affect the right of the appellant/auction purchaser when it is established that the appellant had purchased the property and the sale had been confirmed in her favor and sale certificate as well as possession had been delivered to her.
13. At this stage, it would not be out of place to mention here that the Respondent No, 1 had also filed an application on 20.11.2001 for return of original documents which application was dismissed by the Banking Court on 11.12.2001 and F.A.O. No, 14/2002 filed against the order dated 11.12.2001 was dismissed in limine by this Court and the learned Division Bench of this Court while dismissing F.A.O.
No, 14/2002 observed in Para 3 of the judgment dated 21.01.2002 while making reference to the decision made by the Honourable Supreme Court of Pakistan in C.A. No, 1226/2001 observed as under:- "We have gone through the judgment dated 25.10.2001 of the Honourable Supreme Court in C.A. No, 1226/2001 with the assistance of the learned counsel. We find that Honourable Supreme Court did take notice of the fact that house has been sold in execution and auction purchaser has paid the price and possession has been delivered. It was specifically observed that the said judgment would not have any bearing on the said auction proceedings. This being so, the learned Judge Banking Court has not committed any error in refusing to return the documents particularly when the sale in favor of the auction purchaser is still intact and has not been set aside in any manner prescribed by law. FAO is without any force and is accordingly dismissed in limine."
14. We are constrained to observe that When no objection petition had been filed against the sale held on 6.5.2000 and resultantly sale was confirmed and sale certificate was issued and thereafter the possession was delivered to the appellant/auction purchaser on 24.04.2001; the executing Court had become functus officio. It is correct that if the sale has been confirmed through fraud, objection can be raised even after confirmation and confirmation could not be used as a shield for the fraud by which the sale has been effected. But, in the present case, the Respondent No, 1 objected to the sale after its confirmation which matter went up to the Honourable Supreme Court of Pakistan and was finally decided in Civil Petition No, 1756 of 2004 on 14.06.2005 and the sale was upheld. Similarly, an application was filed under Section 12(2) which matter also went up to the Honourable Supreme Court of Pakistan and was decided in Civil Appeal No, 1226 of 2001; which decision has been discussed by this Court in F.A.O. No, 110/2001 decided on 13.07.2004 and F.A.O. No, 14 of 2002 dismissed in limine on 21.01.2002. Yet there is another aspect of the case that the execution petition had been consigned to the I. Record room initially on 28.04.2001 and thereafter on 19.3.2008 and no proceedings were pending before the Banking Court when an application for clarification of order dated 19.3.2008 and cancellation of sale certificate was filed and the learned Banking Court while entertaining the application and passing the impugned order had acted without jurisdiction and the same had been passed in complete oblivion to the orders passed by this Court as well as by the august Supreme Court of Pakistan. We are astonished to note that after determination of the matter by the Honourable Supreme Court of Pakistan as well as by this Court in different rounds of litigations, where the sale dated 06.05.2000 was upheld what were the considerations which made the Judge Banking Court to pass the impugned order dated 26.08.2011.
It is a sorry state of affairs to observe that while passing the impugned order the learned Judge Banking Court has not considered the judgments passed by this Court in F.A.O. No, 110/2001 and F.A.O. No, 14/2002 as well as Civil Petition No 1756/2004 and Civil Appeal No, 1226/2001 which protected the sale in favor of the appellant/auction purchaser.
15. We are constrained to ensure that the justice is only done, the Judicial Officer must avoid all possibilities of his opinion or action in any case being swayed by any consideration other than the law. The order/judgment must be of a nature from which a reasonable man would think it rightly or probable that the Judicial Officer has not acted in a manner to favor one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favor one side but it would be sufficient where the reasonable people might think that he did. Justice must be rooted in confidence; and this confidence is destroyed with right minded people go away thinking "the Judge was biased". In the present case we have observed that upon application filed by Respondent No, 1 there is a noting upon the application that the appellant could not be served as the proper address had not been provided meaning thereby that the impugned order has been passed by the learned trial Court without giving an opportunity of hearing to the appellant and the impugned order is violative of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 as the same has been passed against the appellant in disregard to the right of having a fair trial and is also offensive to the "Due process of law" clause as enshrined in the Constitution of Islamic Republic of Pakistan, 1973.
16. For what has been discussed above, we accept this appeal and set aside the impugned order dated 26.8.2011 having been passed in complete disregard to the judgments of this Court as well as august Supreme Court of Pakistan. Before parting with this judgment, we have been informed that Respondent No, 1 while concealing the material fact that sale in favor of the appellant has been upheld up till the Honourable Supreme Court of Pakistan and possession had been delivered to the appellant on 24.04.2001; Respondent No, 1 has again obtained the possession of the house. Be that as it may, the appellant is at liberty to file an application with the Banking Court to obtain the possession of the disputed property, with the direction to the Banking Court to act strictly in accordance with this judgment and the judgments passed in F.A.O. No, 110/2001, C.P. No, 1756/2004, F.A.O. No, 14/2002 and Civil Appeal No, 1226/2001 while deciding the application filed by the appellant.