MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this appeal, the order dated 01.12.2015, passed by learned Single Judge of this Court, in Ex. A. No.18-B of 2013 titled MCB Bank Limited v. M/s. Jaguar (Pvt.) Ltd., etc., has been assailed, whereby the post-sale objection petition filed by the appellants, was dismissed.
2. Brief facts of the case are that respondent bank filed a recovery suit against the appellants and respondents No.2 & 4 to 8, wherein an interim decree dated 07.03.2013 was passed. Respondent No.1 initiated execution proceedings through Execution Petition No.18 B/13. Learned Executing Court approved the proclamation/schedule of auction sale vide order dated 12.06.2015. In consequence thereof, the properties of appellants were ordered to be auctioned. The appellants submitted objections (pre-auction) by filing C. M. No.765 B/2015 against the proposed auction sale and alleged innumerable illegalities, irregularities and procedural lapses, which allegedly on the face of record, constitute violations of mandatory requirements of law and reason to cause substantial injury to the appellants. Learned Executing Court proceeded to pass the order that the auction shall be subject to the fate of decision of this application and option was given to the appellants to bring a buyer before this Court before the approval of the sale, to match the reserve price mentioned in the auction schedule. Pursuant to the aforesaid order, the auction was conducted on 31.08.2015 and 01.09.2015. Subsequent to the said auction, the appellants filed objection petitions (post- auction sale) bearing C. M. No.942-B/15, 943-B/15, 944-B/15 and 945-B/15, under Section 19 (7) of the Financial Institutions (Recovery of Finances) Ordinance ("FIO"), 2001, read with Order XXI Rule 90 of the Code of Civil Procedure, 1908 ("CPC"). The said objection petitions were heard and dismissed vide order dated 01.12.2015, which has been impugned through the instant appeal.
On 19.01.2016, case was partly argued and learned counsel for the appellants was confronted with proviso to Rule 90 of Order XXI CPC, for deposit of 20 % of the auction amount for entertaining the appeal and for grant of interim order. As main thrust of his arguments was that properties were being auctioned at much lower price, therefore, he was given another opportunity at appellate stage to fetch best price of the properties, in order to satisfy claims of all concerns, including decree holder banks. Relevant extract of the said order is reproduced hereunder:- "8. Learned counsel for the applicant is confronted with order 21 rule 90 for deposit of 20 % of the auction amount. On this objection, learned counsel for the applicant submits that he has already made offer and undertakes, on behalf of his client, who is present in court, that he will endeavor to match the bid amount in order to satisfy all the creditors, charge of whom is on properties in question."
In response, C. M. No.3 of 2016 was filed to claim that a potential purchaser is arranged, who was willing to purchase property No.1 at three times more than the auction price. Admittedly, the offered amount was not sufficient to satisfy decree and other claims. Confronted with this, he did not press the application and opted to argue the appeal on merits. Since offer in C. M. No.3 of 2016 is not in accordance with the order supra, and is not pressed, hence, is dismissed.
3. Learned counsel for the appellants submits that learned Executing Court failed to appreciate that no notices whatsoever were served upon the judgment-debtors, which was mandatory requirement of Order XXI Rule 66 CPC. He adds that learned Court has misconstrued/misinterpreted the law relating to the imposition of condition of deposit of amount not exceeding 20 % of the sum realized at the sale. He further submits that neither any discussion regarding the condition of deposit happened in the Court nor the Court at any point in time made any direction in this behalf. He further submits that even otherwise, in view of the illegalities committed and irregularities floating on the surface, this is not the case for imposition of alleged condition of deposit. He adds that reliance upon Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others v. Allied Bank of Pakistan and another (2014 SCMR 1662) was misplaced and quite distinguishable.
He further submits that the Habib Bank Ltd. has got the property evaluated, value whereof was more than the entire property put to auction sale. He adds that the properties of the appellants had been sold at a throw-away price. He further submits that the Court has misread the objections raised, which clearly describe causing of substantial injury to the appellants in view of the facts and circumstances of the case. He has placed reliance upon Mst. Manzoor Jahan Begum and others v. Haji Hussain Bakhsh (PLD 1966 Supreme Court 375), Mohib Textile Mills Limited through Director/ Shareholder/Representative, Former Management of the Company v. National Bank of Pakistan, Karachi and others (2005 SCMR 1237), Muhammad Attique v. Jami Limited and others (PLD 2010 Supreme Court 993), Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419), National Bank of Pakistan and 117 others v. Saf Textile Mills Ltd. and another (PLD 2014 Supreme Court 283), Nadeem Akhtar Tabasum v. Muslim Commercial Bank Limited and others (2014 SCMR 1371), Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others v. Allied Bank of Pakistan and another (2014 SCMR 1662), Muhammad Attique v. Jami Limited and others (2015 SCMR 148), Mst. Alhamdi Begum v. National Bank of Pakistan, Karachi and 2 others (PLD 1976 Karachi 723), Brig. (Retd.) Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), Khursheed Begum and others v. Inam-ur- Rehman Khan and others (PLD 2009 Lahore 552), Pakistan Industrial Credit and Investment Corporation Limited, Peshawar Cantt. and others v. Government of Pakistan through Collector Customs, Customs House, Jamrod Road, Peshawar and others (2002 CLD 1), Al-Haj Chaudhry Muhammad Bashir v. Citibank N.A. and 2 others (2002 CLD 962), Messrs Majid & Sons and another v.
National Bank of Pakistan (2002 CLD 1742), Messrs Ripple Jewellers (Pvt.) Ltd. through Chief Executive and another v. First Woman Bank through Officers/General Attorneys/Principal Officers and 6 others (2003 CLD 1318), Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd., through Branch Manager and 3 others (2003 CLD 1693), Syed Muhammad Ehsan Ali v. Zarai Taraqiati Bank Limited (2006 CLD 622), Rana Muhammad Naseeb Khan v. Zarai Tarukiyati Bank of Pakistan and 2 others (2007 CLD 466), Messrs Shah's Impex Industries (Pvt.) Ltd. through Sikander Ali and 2 others v. IDBP through Authorized Officer and 3 others (2009 CLD 1203), Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd. through Chief Executive and others (2011 CLD 1517), Messrs NIB Bank Limited v. Messrs Apollo Textile Mills Limited and 2 others (2013 CLD 1398), Muhammad Afzal Khan and another v. National Bank of Pakistan through Branch Manager and another (2015 CLD 464), Messrs Capital Poultry Feed and Daal Mills through Managing Partner and 5 others v. Atlas Bank Limited through Branch Manager and 3 others (2015 CLD 1149), Asif Ali Khan and another v.
Standard Chartered Bank Limited and another (2015 CLD 1813), Messrs S.M. Nisar and Company through Partner and 4 others v. Banking Court-III, Multan Camp at Sahiwal and 5 others (2015 CLD 1843), M. Shafique Shah and another v. Mst. Irshad Begum and 8 others (1981 CLC 369), Mst.
Rukhsana and others v. Muhammad Ilyas and others (1993 CLC 1949), M/s. National Electric Company of Pakistan v. Allied Bank of Pakistan Ltd. and 2 others (1996 CLC 192), Mrs.Shahida Saleem and another v. Habib Credit and Exchange Bank Limited and 4 others (2001 CLC 126), Haji Zahid Saeed and another v. Messrs Asif Brothers and 3 others (2015 CLC 183), Messrs Saudi Arabian Airlines v. Messrs International Marketing Corporation and others (2015 CLC 916), Messrs Ali Match Industries Ltd through Managing Director and 3 others v. Industrial Development Bank of Pakistan through Manager and another (1999 MLD 2127) and Muhammad Hussain v . Industrial Development Bank of Pakistan, Hyderabad and another (2014 MLD 192).
4. On the other hand, learned counsel for respondents submit that appellants have failed to deposit 20 % of the sum realized at the sale, therefore, the objection petition was rightly held to be not maintainable in view of Order XXI Rule 90 CPC, and law laid down by the Hon'ble Apex Court in the case of Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others supra. They add that, even otherwise, appellants were given an opportunity to match the reserve price, but they failed to do it. They further submit that instant appeal is not maintainable in view of non-deposit of 20 % of the sum, and on account of failure of appellants to match the reserve price at the relevant time before the Executing Court. They pray that the impugned order may be upheld. In support of their contentions, they have placed reliance upon Messrs Irisma International, Karachi and 3 others v. United Bank Limited, Karachi and another (2007 SCMR 1271), Muhammad Attique v. Jami Limited and others (PLD 2010 Supreme Court 993), Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2. Karachi and others (2013 CLD 1581), Mst. Anwar Sultana through L.Rs. v. Bank Al-Falah Ltd. and others (2014 SCMR 1222), Nadeem Akhtar Tabasum v. Muslim Commercial Bank Limited and others (2014 SCMR 1371), Muhammad Attique v. Jami Limited and others (2015 SCMR 148), Punjab National Bank Ltd., Rawalpindi v. Sundar Singh and others (AIR 1929 Lahore 673), Krishna Mohan Kundu v. Nripendra Nath Nandi and others (AIR 1933 Calcutta 662), Bhola Nath and another v. Maharani Kunwar (AIR 1936 Oudh 280), Khawaja Muhammad Daud Sulaimani v. Election Tribunal and others (PLD 2003 Lahore 106), Messrs Madina Rice Mills through Managing Partner and 6 others v. National Bank of Pakistan and 6 others (2004 CLD 1371), Messrs Ashraf Agro and others v. H.B.L. (2008 CLD 449), Saudi Pak Industrial & Agricultural Investment Co. (Pvt.) Ltd. v. A.H. International (Pvt.) Ltd. and 11 others (2008 CLD 1294), Messrs Saudi Arabian Airlines v. Messrs International Marketing Corporation and others (2015 CLC 916), Messrs Zamindar Rice Mills through Partners and others v. Faysal Bank Limited through Attorneys and others (2015 CLD 219), Azhar Rashid Khan and another v. Mujeed Salman Khan and 10 others (2015 CLD 963) and Messrs Capital Poultry Feed and Daal Mills through Managing Partner and 5 others v. Atlas Bank Limited through Branch Manager and 3 others (2015 CLD 1149).
5. Arguments heard. Record perused.
6. The operative part of order dated 01.12.2015, passed by learned Single Judge of this Court, is reproduced as under:- "19. Although these applications (CM No.942-B of 2015 to 945-B of 2015) have purportedly been filed under section 19 (7) of the Ordinance, in essence they pertain to Order XXI Rule 90 CPC as they challenge the conduct of the auction. Faced with a similar question, the Hon'ble Supreme Court in Messrs Nice 'N' Easy (Pvt.) Limited and others v. Allied Bank of Pakistan 2014 SCMR 1662 held as under: The appellants have filed objection petition apparently on the ground that auction proceedings were irregular and the Banking Court has failed to follow the procedure provided under order XXI, C.P.C. The appellants themselves moved the banking Court under section 19 (7) of the Ordinance and have not made an application under Order XXI, Rule 89 or 90, C.P.C. 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 along with 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.
In the light of ratio of the above judgment, the judgment debtor was liable to pay 20 % of the bid money before his applications can be entertained. These applications are, therefore, liable to be dismissed on this score as well."
7. Perusal of the above reproduced part of the impugned order shows that one of the grounds for dismissing the objection petitions filed by the appellants, was failure to deposit 20 % of the bid money along with the objection petitions.
8. Provisions of Order XXI Rule 90 CPC mandate that the objector should deposit the amount mentioned in the said Rule along with the objection petition. In case of non-deposit of the said amount, the objection petitions could not be entertained by the Executing Court. The object of deposit of such amount under Order XXI Rule 90 CPC, being to ensure making of objections by bona fide persons and prevent misusing of such Rule to frustrate sale.
9. Hon'ble Supreme Court of Pakistan, in a recent judgment reported as Zakaria Ghani and 4 others v. Muhammad Ikhlaq Memon and 8 others (PLD 2016 Supreme Court 229), has further elaborated the importance of Rules 89 & 90 of Order XXI CPC. It is held that legal rights, during execution proceedings, should be asserted at an earliest instance; ex post facto objections should not be entertained, especially when the law provides a machinery for raising objections as set out in Order XXI Rules 89 & 90 CPC. Delayed objections at latter or appellate stage are deprecated. Relevant part of the case of Zakaria Ghani and 4 others supra, is reproduced hereunder:- "25. A legal right which inheres in a party should be asserted and ex post facto objections should not be entertained thereafter, especially when the law provides a machinery for raising objections as set out in Order XXI, Rule 89 and Rule 90. In fact if the judgment debtor had asked for setting a reserve price at the initial stage there is no reason to doubt the fact that the court could easily have ordered that. The Bank had given its own valuation but the judgment debtor did not trouble to do so."
10. The argument of learned counsel for appellants that the Hon'ble Apex Court, in Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd. through Chief Executive and others (2011 SCMR 1675), has ruled that non-deposit of 20 % amount by the objector could be condoned in exceptional circumstances, suffice it to say that in that case, the auction was complete nullity being violative of Order XXI Rule 54 (2), 67, 85 & 86 CPC, and the sale was confirmed erroneously by the Executing Court. No such objection has been pointed out in the instant case. Even otherwise, later law of the Hon'ble Supreme Court in the case of Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others supra and Zakaria Ghani and 4 others supra, says that the deposit is mandatory and it has to be deposited along with the application.
11. The Hon'ble Supreme Court, in the said case, has decided the question of law, and the same would have binding effect in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). Where the Hon'ble Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Hon'ble Apex Court within the meaning of Article 189 of the Constitution, and is binding on all Courts in Pakistan. Such pronouncement cannot be treated as mere obiter dictum. Even obiter dictum of the Hon'ble Apex Court, due to the high place which the Hon'ble Court holds in the hierarchy of the Courts in the country, enjoy a highly respected position as if it contains a definite expression of the Court's view on a legal principle, or the meaning of the law. Reference, in this regard, can be made to Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 Supreme Court 483).
12. Needless to observe here that judgment of the Hon'ble Supreme Court to the extent it decides a question of law or is based upon principle of law or enunciate/interpret law, statutory rules etc., is not only binding on all subordinate Courts, tribunals, but is also binding on all public and statutory functionaries etc. Such judgments hold good and should be applied by all such public and statutory functionaries etc., to all persons or class of persons affected by such law, rule etc., without forcing or driving such person to obtain re-affirmation of legal position already declared by the Superior Courts in the earlier round of litigation, to which such person was not a party, unless such decision is revisited by the Hon'ble Apex Court in review, revision, appeal or Hon'ble Larger Bench has taken a different view. Binding mandate of the Constitution has a sway over any question of propriety coming in the way. Decision of the Hon'ble Supreme Court amounts to law declared and it has binding effect on all the fora within the country. Law declared by the Hon'ble Apex Court, unless reviewed by itself, would remain binding on this Court. It is also now well-settled that the view expressed in case law latest in time, has to be preferred over the views earlier in time.
Reference can be made to Muhammad Ramzan and others v. Rahim Shah (2009 CLC 866), Mst.
Hira Rehman v. Chancellor, Government College University, Lahore and 2 others (2011 CLC 377) and Zainab Garments (Pvt.) Ltd. through Chief Executive and others v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and another (PLD 2010 Karachi 374).
13. Bid offered by a third person before this Court in response to the offer made by the appellants on the first date of hearing, when the appellants were confronted with the provisions of Order XXI Rule 90 of CPC, regarding 20 % mandatory deposit, had no legal effect as third person had no locus standi to participate in the matching bid. Even appellants had no right to maintain appeal before this Court on this score alone, at this stage. The mandatory deposit of 20 % cannot be dispensed with on the plea of arrangement of a matching bid by a third person. Reference, in this regard, can be made to Messrs Irisma International, Karachi and 3 others v. United Bank Limited, Karachi and another (2007 SCMR 1271).
14. The case law cited by learned counsel for the appellants does not show that 20 % deposit along with objection petition in terms of Order XXI Rule 90 CPC, is not mandatory, therefore, case law cited by him does not apply to the proposition in hand.
15. In view of the above discussion, this appeal being devoid of any merits, is hereby dismissed with no order as to costs.