ZAFARULLAH KHAN KHAKWANI, J.- This Execution First Appeal is directed against the order dated 7.1.2013 of the learned Judge Banking Court, Bahawalpur whereby respondent No. 3 was appointed as court auctioneer and the order dated 26.9.2013 which was passed on the basis of auction proceedings conducted by respondent No. 3/auctioneer on 22.4.2013 and the appellant was directed to deposit the decretal amount alongwith 5% of the auction fee within 60 days otherwise the auction would be deemed to have been confirmed.
2. Background of the case is that Habib Bank Ltd./respondent No. 1 filed a suit against the appellant and others for recovery of Rs.14,32,087.77/- with costs and cost of funds etc. in the Banking Court Bahawalpur on 16.5.2008 with the contention that on the request of defendants, the plaintiff-bank had advanced a finance facility in the shape of Running Finance to the defendants to the tune of Rs.11,50,000/- @ of 13% mark up which was finally to be repaid by 15.7.2006. Since the defendants failed to liquidate their liabilities by the scheduled date i.e. 29.2.2008 as such an amount of Rs.14,32,087.77 became outstanding against them. The defendants appeared before the Court and filed applications seeking leave to appear and defend the suit. However, their applications for leave to appear and defend were dismissed and resultantly, the suit was decreed against the defendants to the extent of Rs.11,90,520.83 with cost and cost of fund from the date of default i.e. 15.7.2006 until the realization of the entire decretal amount. In order to execute the decree, execution proceedings were carried out and the mortgaged property of the appellant was put in auction by respondent No. 3 under the orders of the executing court dated 7.1.2013. The court auctioneer conducted auction proceedings in which respondent No. 2 was declared successful bidder and the court auctioneer recommended issuance of sale certificate and warrants of possession in favour of the said respondent.
3. The appellant submitted Objection Petition under Section 19 (7) of the Financial Institution (Recovery of Finances) Ordinance, 2001 read with Order XXI Rule 90 of the C.P.C. throwing challenge to the auction proceedings dated 22.4.2013 being based on fraud and material irregularities while conducting auction proceedings such as no notice under Order XXI Rule 66(2) C.P.C. was given to the defendants/judgment debtors prior to appointment of court auctioneer who also did not serve notice about date of auction proceedings to the defendants; that no evaluation of the property under auction was got determined prior to appointment of auctioneer and reserve price fixed- determined at the time of mortgage was taken into consideration whereas as per law the mortgage property was to be got evaluated after every three years from the evaluator and thus the property worth crores of rupees was auctioned at throw away price and finally that that the court auctioneer did not get the proclamation published in accordance with law and even no particulars of the participants of the bid were given in the report, as such the whole auction proceedings were based on fraud and liable to be set aside.
4. The application was resisted by the respondents on the grounds that the learned executing court could not entertain the objection petition as the judgment debtor/appellant did not deposit 20% of the amount realized at sale nor furnished security to the satisfaction of the court as required by Order XXI Rule 90 C.P.C. and that the property was mortgaged as guarantee in token of liquidation of finance facility and in case of non-fulfilment of liability the decree was to be satisfied from the mortgaged property and the court auctioneer had conducted the proceedings under orders of the court observing all legal requirements and the property had been sold and the application was intended just to prolong the matter as such the same was liable to be dismissed.
5. The learned Executing Court vide order dated 26.9.2013 observed that prima facie the objection petition was baseless. however, since the judgment debtor had vested rights in the mortgaged property as such he was directed to deposit the amount of decree alongwith 5% of auction fee within 60 days otherwise the auction proceedings shall be deemed to have been confirmed. By not accepting the said order, the appellant has preferred this appeal.
6. Reiterating his grounds mentioned in the Objection Petition, learned counsel for the appellant contends that the learned Executing Court while passing the impugned order has misconstrued the contentions of the appellant; that no notice under Order XXI Rule 66(2) of the C.P.C. was given to the defendants/judgment debtors prior to proclamation of sale by public auction which was mandatory provision and omission to do so is a material irregularity as such the sale was liable to be declared void; that the court auctioneer did not get the proclamation published in accordance with law and even report of the auctioneer regarding auction proceedings would show that full particulars of the participants/bidders were not given which smells foul play and fraud and as such the proceedings were illegal and that property worth crores of rupees was auctioned at throw away price without getting the same evaluated prior to putting the same to auction and thus the executing court committed grave irregularity.
7. On the other hand learned counsel for the respondents have contended that neither the objection petition nor this appeal is maintainable as the judgment debtor/appellant has not deposited 5% of auction money and decreetal amount nor 20% of the sum realised at the sale as required by law to throw a challenge to the sale of the mortgage property through auction. He also contended that proper notice was issued to the appellant by way of registered post acknowledgement due and even through proclamation/publication in the news paper of the auction proceedings and that the appellant vigorously pursued the execution proceedings and even filed application for suspension of auction proceedings in order to give a chance to deposit the decretal amount but backed out from his commitment and as such cannot say that he had no notice of the auction of his property and the learned executing court has rightly dismissed objection petition of the appellant.
8. It is settled law that the contentions/issues relating to question of law which go to the root of the subject matter of the lis and do not involve question of fact should be decided first in order to dispose of the whole cause. This in no manner will amount to piecemeal decision. In this perspective before taking note of the contentions raised by learned counsel for the appellant, we have considered the preliminary objection raised by learned counsel for the respondents.
Order XXI of the C.P.C. relates to the execution of decree and provides for detailed procedure in that regard. Rule 11 (1) provides that where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court. Sub Rule (2) provides that apart from what has been provided in sub Rule (1) an application is to be made for the execution of a decree which should be in writing and contain certain particulars enumerated in the said sub Rule. As per clause (j) of sub Rule (2) the application should prescribe the mode in which the assistance of the Court is required for execution of decree as to whether (ii) by the attachment and sale, or by the sale without attachment, of any property. Rule 13 relates to making of application for attachment of immoveable property. Rule 17 provides that the court shall issue notice to the person against whom execution is applied for requiring him to show cause why the decree should not be executed against him. Rule 23 provides that where the person to whom notice is issued does not respond, the court shall order the decree to be executed. Rule 23-A provides that if the person objects to the execution of decree he has to first deposit decretal amount or furnish security for its payment in case of money decree. Under Rule 64 the Court may order any property attached by it to be sold in order to satisfy the decree. Rules 65 to 69 prescribe the procedure to be adopted for sale. Rule 89 provides that 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 for getting it set aside with certain conditions enumerated therein. Rule 90 provides the remedy to file application seeking setting aside of sale on the ground of fraud or material irregularity. With a view to better appreciate these two rules the same are reproduced hereunder:
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 applies 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) ............
Rule 90 runs as under:
90. Application to set aside 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 further that no such application shall be entertained unless the applicant deposits such amount not exceeding twenty per cent, of the sum realised at the sale, or furnishes such security, as the Court may direct.
A combined study of these provisions of law would reveal that sale of immovable property in execution of a decree can be challenged either under rule 89 or rule 90. However, if the sale is challenged under rule 89 the person objecting the same has to first deposit a sum equal to five percent of the purchase money for payment to the purchaser under clause (a) and the amount specified in the proclamation of sale for the recovery of which the sale was ordered minus the amount which may have been received by the decree holder under clause (b). However, where a person applies to set aside the sale of his immovable property on the basis of fraud or material irregularity in publishing the proclamation or conducting the auction, he has to first deposit an amount upto twenty percent of the sum realised at the sale, or to furnish such security, as the Court may direct and the Court is barred from considering the objection unless these conditions are first fulfilled.
9. In the present case the petitioner made an application to object the sale of his immovable property. However, he neither deposited the amount under clauses (a) and (b) of rule 89 as ordered by the learned Executing Court vide order dated 26.9.2013 nor deposited an amount upto twenty percent of the sum realised at sale or furnished any security to the satisfaction of the Court as required by rule 90. If the petitioner considered that the sale had been made through playing fraud or there was material irregularity, he could have objected to the sale only after crossing the hurdle of depositing the amount or furnishing security. The record shows that sufficient time was granted to the petitioner in this respect but he did not comply with the order. In this view of the matter, neither the objection petition could have been entertained by the executing Court nor is this appeal maintainable. In this regard steering thoughts can be taken from the case of Messrs Nice 'N' Easy Fashion (PVT.) Ltd. v. Allied Bank of Pakistan and another (2014 SCM R 1662) in which it was held by the Hon'ble Supreme Court as under: "Even if the objection petition of the appellants is treated as an Application under Order XXI, Rule 89 or 90 C.P.C., then the said Rules mandate that the objector should deposit the amounts mentioned therein alongwith the application. In absence of the deposit, as mandated by the Rules, the application and or objections cannot be entertained by a Banking Court. In the case in hand, the appellants have not deposited any of the amounts required under the aforesaid Rules, therefore, the objections were rightly rejected by the Banking Court."
10. For the aforesaid reasons, we find no illegality in the impugned order passed by the learned Executing Court. Consequently, without adverting to the other contentions raised by learned counsel for the parties, this appeal is dismissed being hit by Order XXI Rules 89 and 90 C.P.C. The record of learned Executing Court be immediately returned to the said Court for further proceedings in the matter.