' AMIN-UD-DIN KHAN, J.--- Through this single judgment we intend to decide instant F.A.O. As well as F.A.O. No,102 of 2010 (Messrs Asif Brothers and another v. MCB Limited and others) as both the appeals contain common question of law and facts.
2. In execution of a decree dated 18-12-2000 for Rs,2,99,434.07 with cost and mark up @ 64 paisa per thousand per day from the date of filing of the suit i.e, 9-6-2000, till its payment respondent No,3/MCB decree-holder filed an execution petition on 28-5-2001 for recovery of Rs,3,86,007.07.
Record shows that along with execution petition a Fard Talika having detail of two properties of Judgment Debtor was filed (hereinafter to be referred as property No,1 and property No,2) and order shows that notice under Order XXI, Rule 66 of the C.P.C. Was ordered to be issued for 28-6- 2001. On the next date of hearing order shows that no one appeared on behalf of the respondent, therefore, the case was adjourned for submission of conditions of auction. Then it was adjourned for 10-7-2001 and thereafter for 17-10-2001. On 17-10-2001 the learned Executing Court appointed Rana Muhammad Zulfiqar, Advocate Faisalabad and Ch. Abdul Majeed, Advocate, Faisalabad as Court Auctioneer. Order dated 24-4-2002 shows that report of auction allegedly conducted on 30- 3-2002 was submitted. Auction report shows that auction of Property No,1 was conducted at 11:00 a.m whereas auction of Property No,2 was conducted at 1:00 p.m on 30-3-2002 and Property No,1 was auctioned for amount of Rs,4,80,000 in favour of the present appellant Zahid Saeed and Property No,2 was auctioned for an amount of Rs,3,10,000 in favour of Muhammad Altaf. As per appellant, said Muhammad Altaf subsequently surrendered his right with regard to property No,2 in favour of the appellant. The objection petition filed under Order XXI, Rule 90 read with section 151 of C.P.C. With regard to Property No,1 was dismissed on 16-4-2003 and on the same date the auction of the said property was confirmed and auction of Property No,2 was confirmed on 20-11-2003 and as per counsel for the appellant sale certificate was issued. On 22-5-2001 an application was moved by the judgment-debtor with a prayer to receive the Demand Draft equivalent to the claimed amount in the execution i.e, Rs,3,86,007 and for setting aside the auction proceedings.
Against the order dated 16-4-2003 of dismissal of objection petition, FAO.No,115 of 2003 titled "Asif Brothers v. MCB" was filed by the Judgment Debtor/Objector, which was accepted vide order dated 10-11-2004 and matter was remanded to the learned executing court observing that application dated 22-5-2002 has not been decided and directed that both the applications be decided afresh in accordance with law. The remand order was challenged through CPLA.No,3279-L of 2004, leave was refused on 6-2-2006. After remand the learned Judge Banking Court on 11-10-2005 set aside both the sales and the purchasers filed FAO.No,263 of 2005 whereas the decree holder bank filed FAO.No,279 of 2005. Both the appeals were accepted vide order dated 4-5-2009 and once again the matter was remanded to the learned trial court with some observations. After that vide impugned order dated 14-1-2010 the learned Judge Banking Court has decided the objections as well as the application filed by the judgment-debtor on 22-5-2002, presuming it under Order XXI, Rule 89, C.P.C., and held that petitioner has already deposited the amount along with 5% of the purchase money in Court to the extent of property No,1, therefore, set aside the auction of property No,1 where against FAO. No,47 of 2010 has been filed by the auction purchaser. Learned executing court observed that to the extent of Property No,2 the Judgment-Debtor had already withdrew his objections, therefore, judgment debtor has filed FAO.No,102 of 2010 to challenge the order of executing court with regard to property No,2.
3. We have heard learned counsel for the parties at length and gone through the record as well as case law referred by the learned counsel for the parties.
4. As there is a chequered and lengthy history of this case, at least twice the appeals were filed before this Court and the matter was remanded to the learned trial court, the matter went up to august Supreme Court of Pakistan, therefore, we want to thoroughly examine the record and take benefit from the findings earlier recorded by this Court.
5. We have noticed, the first order for submission of conditions of auction was passed on 28-5- 2001, the order also shows issuance of notice under Order XXI, Rule 66 of the C.P.C. First we take this point as it remained in issue that whether actually a notice under Order XXI, Rule 66 of the C.P.C.
Was issued or there is only an order of issuance of the said notice. This matter was disputed between the parties, therefore, on the application of Zahid Saeed/Auction Purchaser a separate inquiry was conducted by the learned executing court which was concluded vide order dated 27- 4-2005 finding that the application has been filed after the decision of the FAO. No,115 of 2003 on 10-11-2004 dishonestly, as the Division Bench of the High Court has referred in the judgment after perusal of record about the notice the learned executing court quoted the paragraph from the judgment of the High Court that "neither there is any copy of the notice on the record nor there was any postal receipt on the record". We have noticed that this sentence has been taken from paragraph No 7 of the said judgment. Certainly, complete record was before the Court when FAO.No,115 of 2003 was decided and the Hon'ble great Judges of this Court decided that FAO by holding that notice under Order XXI, Rule 66 of the C.P.C. Was not actually issued, the same fact has been confirmed by the learned executing court vide its order dated 27-4-2005. We have also gone through the record, at Page 47 there is a photocopy of the printed pro forma semi filled by blue ink without having date, signature and seal of the court. We have the privilege to quote here the observations of the Division Bench of this Court in its judgment referred supra while deciding FAO.
No,115 of 2003 decided on 10-11-2004, which is reported as 2005 CLD 236 "Messrs Asif Brothers, Jhang Saddar through Sole Proprietor and another v. Muslim Commercial Bank Limited through Manager and 3 others" . For ready reference Para 7 is reproduced as under:- "As far as the objection petition under rule 90, filed by the appellants is concerned, we have carefully examined the record. Vide order dated 28-5-2001, a notice was directed to the appellants under rule 66 of the Order XXI of the Code of Civil Procedure and according to the order dated 28-6-2001, the notice had been issued through registered post and the postal receipts were on the file. Neither there is any copy of the notice on the record nor there was any postal receipt on the record. No proclamation was drawn up by the Court as required under rule 66 of the Code of Civil Procedure. There is an unsigned paper at page 47 of the record of the learned trial court describing the conditions of the auction. It is a printed pro forma and blanks have been filled in, in ink. This is not signed by the learned Judge. Therefore, we do not find that the provisions of rule 66 of Order XXI of the Code of Civil Procedure, had been complied with. We have also taken note of the fact that if at all the Court auctioneers had chosen to issue a public notice in a newspaper, it should have been issued in any newspaper being published from Jhang, where the property was situated. We could not find any justification for publication of notice of sale in a weekly newspaper being published from Faisalabad. Besides error in the description of the property which may not be material, the amount to be recovered by the sale of the two properties was not indicated in the said public notice."
' In these circumstances it stood established that provisions of Order XXI, Rule 66 have not been complied with.
6. So far as issuance of publication in the newspaper is concerned, as observed in the above referred paragraphs that properties are situated in Jhang whereas the publication was made from Faisalabad and further there is no mention of reserve price in the said photocopy of the pro forma allegedly submitted for schedule of auction. The order sheet does not show that the said schedule of auction has been incorporated in the order of the court. The argument of learned counsel for the auction purchaser that reserve price is mentioned in the publication, suffice it to say that if there is any mention of reserve price in the publication that is without any authority and without fixation of the same by the court and mentioning of reserve price in the publication has no value as the same has not been mentioned in the pro forma (schedule of auction), photocopy of which has been referred and available at Page 47 of the original file. We are further fortified by the judgment of this court reported as PLD 1993 Lahore 706 "Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another". Para 26 of which is reproduced for ready reference:--- "We now proceed to examine the effect of omission to issue the proclamation under Order XXI, Rule 66, from the point of view that there was no disclosure to the prospective buyers of the approximate value of the property. The purpose of fixing the reserve price, under the proclamation is that the Court safeguards the rights of the judgment-debtor and the bid starts from that figure.
Such price has to be fixed after objective consideration of the relevant material which the Court can procure by holding a summary inquiry and summoning and examining any person possessed of necessary information as provided by clause (4) of Rule 66. The omission to issue a proclamation resulting in non-disclosure of the reserve price of the property, has a very strong bearing on the appellants' allegation as to the commission of the fraud; inasmuch as a very valuable commercial property situate in the heart of Islamabad, was shown to have been auctioned away at a throw away price. As no notice was issued to the judgment-debtors, they had no intimation regarding the sale of their property and thus could not protect their rights."
' Further we take light from the judgment of the august Supreme Court of Pakistan reported as PLD 2014 SC 283 "National Bank of Pakistan and 117 others v. SAF Textile Mills Limited and others", in which following dictum has been referred:--- "It is now well-settled law that even where the sale is conducted by the Court a "reserve price" is essential and the absence thereof may be fatal"
' Another important aspect of the case is that this court while accepting FAO. No,115 of 2003 vide remand order dated 10-11-2004 made some specific findings about non-fixation of reserve price by the executing court, non-confirmation of schedule of sale, non-mentioning of place of sale in the alleged schedule of sale, these findings stood final, when against the remand order petition for leave to appeal filed by the auction purchaser was refused on 6-2-2006 by the august Supreme Court of Pakistan.
' It is established that compliance of order of issuance of notice under Order XXI, Rule 66 was not made. No reserve price was fixed by the court and proclamation issued was also not in compliance of the requirement of law.
7. We have gone through the alleged conditions of auction referred supra wherein no place of auction has been mentioned. We have gone I through the proceedings allegedly conducted by the Court Auctioneers. Out of the total five persons, allegedly participated in the auction proceedings including the purchaser, Muhammad Ramzan is his father and Abid Saleem is his real brother. We have further noted that in the proceedings at the spot, which is available at Page 57 and Page 65 of the original file, the Judgment-Debtor Muhammad Akbar Sheikh has been marked present and his alleged signatures in English are also shown against his name. We have compared the signatures available on the affidavit filed with the petition in FAO No,102 of 2010 as well as his signatures upon various applications moved before the executing court which are entirely different.
This difference has been observed by the Division Bench of this Court in the previous judgment. All the proceedings in which manner the same have been conducted by the learned executing court as well as the Court Auctioneers lead us to consider the matter of fraud in these proceedings. We, are unable to understand that when the execution was filed for the recovery of Rs,3,86,007 and allegedly the Judgment-Debtor was available at the time of auction of first property at 11:00 a.m. At the spot and property was auctioned for Rs,4,80,000 and he remained mum and raised no objection at the spot and simultaneously when at 1:00 p.m on the same day property No,2 was also auctioned for Rs,3,10,000 and even then he raised no objection and let both the properties auctioned.
8. In the above circumstances the main stress of learned counsel for the auction purchaser was on the point of limitation in filing application as per his version under Order XXI, rule 89 of C.P.C. But as we have observed supra that all the proceedings conducted by the learned Executing Court were not only against the settled principles of law but violative of the basic provisions of law. In these circumstances while relying upon 2007 CLD 466 "Rana Muhammad Naseeb Khan v. Zarai. Tarukiyati Bank of Pakistan and 2 others", we are also of the view that the learned executing court was having not only the jurisdiction under Order XXI, Rule 89 of C.P.C. But was also having jurisdiction under Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as the inherent jurisdiction to scrutinize the process of sale of properties through auction and to unearth the fraud and save the party against whom fraud has been committed. Specially, we have noted that the alleged auction purchaser is an Advocate and Court Auctioneers are also Advocates, therefore, more care in scrutiny of the process of sale through auction was required. We are further fortified by the judgment of the Division Bench of this Court reported as 1996 CLC 192 "Messrs National Electric Company of Pakistan v. Allied Bank of Pakistan Limited and 2 others". We quote Para Nos. 8 & 9 of the same for ready reference:-- "There was a Full Bench ruling of the Privy Council in which their Lordships held that misstatement as to the value of the property by the decree-holder in sale proclamation was a fraud on Court by the decree-holder and as such deserves to be set aside. Reliance is placed on "Maru Danayagam Pillai v. Manichavasakam Chettiar" (AIR (32) 1945 PC 67). A similar dispute arose between Sardar Bhagwan Singh and Lala Barkat Ram. Applying the rule of ejusdem generis their Lordships in a Full Bench held that such objections where petitions under section 47, whatever be given the name and Article 181 of Limitation Act, 1908 applied. Reliance is placed on "Barkat Ram v. Srdar Bhagwan Singh" (AIR (30) 1943 Lah.140).
'In "Punjab Province v. Kh. Feroze Din Butt and another" (PLD 1960 West Pakistan Lah. 791). The following were laid down the conditions essential for the acceptance of such application:---
(i) That there has been material irregularity or fraud in publishing or conducting the auction sale,
(ii) that the applicant has sustained substantial injury, and
(iii) that the injury is the direct result of the proved irregularity or fraud.
' In the present case as observed earlier material irregularity has been committed by the Court auctioneer and fraud had been played in publishing the wrong particulars, less valuing of the property and the conduct of auction which was not sold at site. The applicant sustained substantial injury by mentioning of the property having meager value as against the market price and also by stating the name of the day on which 8-3-1992 was to fall and the injury to the present appellant was not only substantial but was also the direct result of the patent fraud played by the decree-holder in collusion with the Court auctioneer."
9. With regard to validity of the application moved on 22-5-2002 we quote for guidance findings of the august Supreme Court of Pakistan from Paragraph No,11 of the judgment reported as 2013 SCMR 1419 "Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No, 2, Karachi and others", which are as under:- "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 walkover to maneuverers 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 of 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."
' And also quote for guidance following findings from paragraph No, 13 of the same judgment:--- "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. "
' It is on the record that before withdrawal of application filed under Order XXI, Rule 90 of C.P.C., an application was earlier filed on 22-5-2002.
10. Now we dilate upon question of limitation whether Article 166 of the Limitation Act, 1908 is applicable or Article 181 of the Limitation Act, 1908 is applicable. We take guidance from the judgment of the august Supreme Court of Pakistan reported as PLD 2014 Supreme Court 283 "National Bank of Pakistan and 117 others v. SAF Textile Mills Limited and others"and quote below Para 35 of the judgment:--- "Such objections can be filed under Order XXI Rule 90, C. P.C., and even with respect to the sales of mortgaged property, which are effected under the provisions of the Ordinance of 2001 by the Court in execution, in addition to the above, objections application under section 19(7) of the Ordinance of 2001, can be filed. It may be noted with interest that the sale does not attain finality, until such objections are decided. Even otherwise, in the absence of any such objections, under the law, the Court is vested with the inherent jurisdiction to examine the record and so as to ensure that the sale has been lawfully conducted. It is only then all rights in the mortgaged property are finally extinguished."
' Further PLD 1966 SC 375 "Mst. Manzoor Jahan Begum and others v. Haji Hussain Bakhsh" and PLD 2010 Supreme Court 993 "Muhammad Attique v. Jami Limited and others" are also helpful for us with regard to the limitation in such like cases. We quote Para 31 of the judgment reported as PLD 2010 Supreme Court 993 "Muhammad Attique v. Jami Limited and others" for ready reference:- "Now coming to the question of Article 166 of the Limitation Act, as we have come to the conclusion that sale appears to be the outcome of the collusion between the Court Auctioneers and the appellant and further mandatory provisions of Order XXI, Rules 66, 67 and 68, C. P.C. And section 19(4) of the Ordinance 2001, have not been complied with. In the circumstances, Article 181 of the Limitation Act is attracted and the application to set aside the sale as void, was filed in time."
' We can further take light from the Division Bench's judgment of this Court reported as 1996 CLC 192 "M/s. National Electric Company of Pakistan versus Allied Bank of Pakistan Limited and 2 others", wherein it has been decided that if there is any irregularity and fraud in conducting the sale, Article 181 of the Limitation Act applies. For further guidance we can rely upon AIR 1956 AIR(sic) 87 "Merla Ramanna v. Nallapa raju and others" wherein it has been held that when sale in execution is inoperative and void an application by the Judgment Debtor to have it declared void and for appropriate relief is governed by Article 181 and not Article 166 of the Limitation Act, 1908.
' And also rely upon 2003 YLR 3274 "Mst. Zainab Bibi v. Allied Bank of Pakistan Limited and others" and 2007 CLD 466 "Rana Muhammad Naseeb Khan v. Zarai Tarukiyati Bank of Pakistan and 2 others" to hold that when any fraud is visible in the proceedings the Court has the suo motu powers.
11. So far as the objection of learned counsel for the auction purchaser that when application under Order XXI, Rule 90 was withdrawn the judgment-debtor has no right to agitate the matter before this Court and argue the case on merits of the case challenging the defects in the procedure adopted by the learned executing court as well as the sale conducted by the court auctioneers, suffice it to say that when I we are of the view that the proceedings conducted by the court as well as the court auctioneers are not in accordance with the provisions of law and in the light of the case law referred supra can be said to be fraudulent, therefore, this court cannot shut its eyes on the basis of technicalities, this Court can look into the matter and same were the powers available with the learned executing court.
12. As we have noted supra that the Court Auctioneers were two Advocates and purchaser is also an Advocate, by scrutiny of the process of auction, the connivance between the Court Auctioneers and the auction purchaser is visible as we have noted in the facts that the Court Auctioneers have marked the presence of the Judgment Debtor at the time of sale of property No,1 at 11:00 a.m on 30-3-2002 and on the same day at the time of sale of property No,2. When property No,1 was sold for Rs,4,80,000 and the amount of execution was Rs,3,86,007.07 what was the necessity to sell property No,2 and it is astonishing that the Judgment Debtor remains associated at the time of sale of property No,1 and property No,2 and raises no objection and is not taking part in the proceedings except signing the presence sheet. This fact speaks volumes. All these facts lead us to conclude that auction proceedings were not transparent from day first and illegalities committed by the court as well as court auctioneers constitute commission of fraud against the rights of judgment-debtor.
13. When the learned Executing Court miserably failed to comply with the provisions of Order XXI, Rule 66 of C.P.C. And connivance of Court Auctioneers is also visible from the record, when result of the negligence by the Court and connivance on the part of Court Auctioneers as well as illegalities committed by the Court Auctioneers like without authority mentioning the place of auction in the publication and without authority mentioning the reserve price of their own in the publication constitutes a fraud against the Judgment Debtor whose property was going to be auctioned.
14. So far as filing of second application or withdrawal of previous application is concerned, in the light of Order XXIII, Rule 4 of C.P.C. That makes no difference.
15. In this view of the matter, appeal in hand (FAO.No,47 of 2010) being 'meritless stands dismissed with cost whereas FAO. No,102 of 2010 is accepted and the sale confirmed by the learned executing court in favour of Zahid Saeed, Advocate with regard to property No,2 is set aside. As the Judgment-Debtor has already deposited the Demand Drafts in the Banking Court and the learned Banking Court is directed to calculate the amount payable by the. Judgment-Debtor to the Bank and grant a month's time to Judgment Debtor to pay remaining amount to the decree holder bank. If the Judgment-Debtor fails to deposit the amount within the time limit granted by the learned Executing Court then the learned Executing Court will be at liberty to re-start the execution proceedings .In accordance with law.