' EJAZ AFZAL KHAN, J.---This review petition has arisen out of the judgment dated 4-6-2010 of this Court whereby the appeal filed by the appellant was dismissed.
2. Learned Advocate Supreme Court appearing on behalf of the petitioner contended, that provisions of C.P.C. And those of Financial Institutions (Recovery of Finances) Ordinance, 2001 have not been interpreted in their correct perspective and that the provisions contained in Rule 54 as well as 67 of Order XXI, C.P.C. Are directory in nature, therefore, failure to comply therewith cannot undo an auction which is held perfectly in accordance with the provisions of the Code and the Ordinance. The learned ASC to support his contention placed reliance on the case of "Ghulam Abbas v. Zohra Bibi and another" (PLD 1972 SC 337). The learned Advocate Supreme Court next contended that when the relevant orders of the learned Executing Court unmistakably show that the respondents were served, their failure to attend the Court within time prescribed in this behalf would debar them from raising any objection to the proceedings ending in auction of mortgaged property. He next contended that where a period has been clearly prescribed by Article 166 of Limitation Act, 1908 resort could not be had to the residuary Article 181 in order to extend the period of limitation. The finding, the learned Advocate Supreme Court maintained, that no sale could take place until the expiry of 30 days under Rule 68 of Order XXI, C.P.C. Is another error patent on the face of the judgment under review, as the period of 30 days mentioned in the aforesaid Rule has since been substituted by 15 days through amendment made by the Lahore High Court on 7-4- 1932. Auction proceedings, the learned Advocate Supreme Court argued, could not be termed as collusive on any account when no evidence came forth to substantiate such allegation. The word "sale", the learned Advocate Supreme Court submitted, means fall of hammer, therefore, if cannot be confused with confirmation of sale. The learned Advocate Supreme Court to support his contention placed reliance on the cases of "Diwan Ghulam Rasul v. Ghulam Qutab-ud-Din" (AIR
(29) 1942 Lahore 142) and the case of "Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. And another" (1981 SCM R 108). By reading out the relevant clauses of the agreement available at page 75 of the paper book, the learned Advocate Supreme Court further argued that the respondents knew all along not only about the pendency of execution but also about the appointment of auctioneer, therefore, it does not lie in their mouth to say that they were not aware of the proceedings. While highlighting the scope of review, the learned Advocate Supreme Court submitted that this Court can review its judgment or order if an error of law or fact has materially affected the merits of the case. Learned Advocate Supreme Court to support his argument placed reliance on the cases of "Commissioner of Income Tax, Peshawar v. Messrs Gul Cooking Oil and Vegetable Ghee (PVT.) Ltd. And 6 others" (2008 PTD 169).
3. As against that the learned Advocate Supreme Court for the respondents, by reading out the orders passed by the Executing Court on the commencement of the proceedings before ft, submitted that when the process fee was not deposited the question of issuance of process against the respondents does not arise; that service through registered A/D is also a myth when neither an order therefor nor a receipt from the post office in this behalf has been brought on the record. The learned Advocate Supreme Court next contended that knowledge of the respondents about the pendency of execution proceedings and appointment of auctioneer is no doubt, spelt out by the agreement mentioned above but this would not be of any help to the petitioner when the proceedings before the Executing Court, in view of the agreement, were adjourned sine die, therefore, on resumption of the proceedings the respondents were required to be served afresh.
Learned Advocate Supreme Court next contended that where the High Court remanded the case to the Executing Court for decision afresh in the light of the observations made in paras 5, 6 and 7 of its judgments, all the questions raised before this Court could well be raised before the Executing Court, therefore, a conclusive finding on any such matter would not be in the interest of either of the parties, the moreso when, the judgment of the High Court has been upheld by the judgment under review.
4. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the parties.
5. Suit on behalf of a customer or a financial institution in a Banking Court, its proceedings and their culmination in a decree and its execution through attachment, auction and sale of property involve a long haul, therefore, the legislature introduced a mechanism which enabled the financial institution to leap from one end to another without the intervention of the Court. It, thus, enacted section 15 of the Ordinance. But where intervention of the Court is un-avoidable, the legislature while updating the erstwhile law enacted section 19 of the Ordinance. Subsection 2 of section 19 nevertheless, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure or any other law for the time being in force 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. It is, however, discretionary with the Court to adopt any of the modes mentioned above but once the Court opts to execute the decree in accordance with the provisions of the Code, it cannot depart therefrom. Proclamation cannot be an exception to that. The relevant provisions need to be read once again for the sake of clarity which read as under:-- "67. Mode of making proclamation.---(1) Every proclamation shall be made published, as nearly as may be, in the manner prescribed by Rule 54, sub-rule (2).
(2) Where the Court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separaie proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given."
' The other provision referred to in the above quoted provision also merits a look which reads as under:-- "54. Attachment of immovable property.---(1) Where the property is immovable, the attachment shall be made by an order prohibitory the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.
(1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.
(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate (and, where the property is having jurisdiction over that village."
6. A careful reading of the above quoted provisions would reveal that the purpose behind their enactment, as far as it can be gathered from the words used therein, was to give wide publicity to the sale of the property so that maximum number of people may turn up to participate in it and give bids that match the price the property deserves. The words used in the aforesaid provisions may not sound mandatory and according to the judgment rendered in the case of Ghulam Abbas v. Zohra Bibi and another (supra) are directory in their nature. But if we interpret these provisions by ignoring the purpose behind them then a sale held in the chambers of secrecy would be as good as the one held in accordance with the provisions of the Code. Failure to comply with such provisions, therefore, cannot be lightly ignored. We, in view of the surroundings we live in, where people do not know what is happening to their next door neighbors or outside their houses, would rather desire the involvement of even electronic media for the publicity of such sale or auction so as to ensure compliance with the letter and spirit of the law. Therefore, the argument that the provisions contained in Rule 54 as well as 67 of Order XXI are directory in nature and failure to comply therewith cannot undo an auction could be held to be correct so long as it does not cause prejudice to any of the stakeholders. But where it is otherwise, C failure to comply with the provisions cannot be brushed aside without due application of mind, The Court has to undo a sale if failure to comply with the provisions causes injustice. Needless to reiterate that these provisions have been enacted to advance and not to impede the cause of justice.
7. The argument about the service of notice, based on the observations made in the relevant orders of the Executing Court, in view of its being disputed by the respondents, can better be resolved by the Executing Court. Therefore, it would not be apt and appropriate to comment on it at this stage.
8. The argument that where a period has been clearly prescribed by Article 166 of the Limitation Act for setting aside the sale in execution of a decree, resort could not be had to the residuary Article 181 to extend the period of limitation and that a distinction be drawn between the two provisions lest it causes miscarriage of justice, is also correct. But where a person affected by the sale has not been served and the proceedings ending in auction have been conducted at his back, Article 181 and not Article 166 shall apply.
9. The argument that no sale could take place until the expiry of 30 days under Rule 68 of Order XXI, C.P.C. Is also correct as the period of 30 days mentioned in the aforesaid rule has since been substituted by 15 days through amendment made by the Lahore High Court on 7-4-1932. The argument attacking the finding in the impugned judgment under review as to the collusive nature of the auction need not be commented upon when the matter has to be thrashed out by the Court executing the decree on remand of the case. The argument that the word "sale" means fall of hammer and not its confirmation by the Court, too, is correct, as was held in the cases of "Diwan Ghulam Rasul v. Ghulam Qutab-ud-Din" (Supra) and "Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. And another" (Supra). We agree with the learned Advocate Supreme Court for the petitioner that the agreement, appearing at page 75 of the paper book, spells out knowledge on the part of the respondents as to the pendency of the execution and appointment of auctioneer, but that would not dispense with issuance of fresh notice to the respondents when the proceedings before the Executing Court, pursuant to the aforesaid agreement, were adjourned sine die. While agreeing with the learned 'Advocate Supreme Court for the petitioner that this Court can review its judgment or order if an error of law or fact has materially affected the merits of the case, as held in the case of "Commissioner of Income Tax, Peshawar v. Messrs Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. And 6 others" (supra), we don't find any error of law or fact in the judgment under review as could materially affect the merits of the case. The long and short of what is discussed above is that the judgment under review being free from any error much less patent on the face of the record does not call for its reversal.
10. For the reasons discussed above, this review petition being without merit is dismissed.