' MUHAMMAD YOUNIS THAHEEM, J.---The appellant through appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 has challenged the judgment/order dated 08.06.2009, passed by learned Banking Court, Peshawar High Court, Peshawar in Execution Petition No.02/10/2004 vide which said Execution Petition after satisfaction of decree by paying entire decretal amount by judgment debtors was consigned to Record Room and the highest bid of appellant was not confirmed with the following prayer: On acceptance of this appeal, the judgment/order dated 08.06.2009 passed by Banking Court, Peshawar High Court, Peshawar be set aside and the auction dated 27.01.2005 whereby the appellant was declared as highest/successful bidder be confirmed."
2. Brief facts of the case are that a banking case titled as Industrial Development Bank of Pakistan v. Nawabzada Abdul Ghafoor etc. Was decreed on 08.04.2004 and the proceedings were converted into execution petition in consequence thereof notice for attachment of above said property was issued.
' In the meanwhile Objection Petition No.9/11/2004 was filed regarding Khasra No.742, 632 Kanal 04 Marla, Khasra No.701/1, 3 Kanal, 15 Marla etc. Regarding property in control of Premier Sugar Mills Mardan and ownership of the objectors which was leased out in the year 1947 for 60 years with the plea that lease still subsists and decree holders were directed to reply the objection and in this way proceedings with regard to objection were commenced. Besides above, notices for auction of the attached property were issued and publication of said notices in the 'English Daily newspaper', Daily 'OBSERVER' Rawalpindi Edition and Urdu Daily `KHABRAIN' Peshawar 'for auction of the attached property on 09.12.2004 were published and in this respect Sardar Ali Raza, Advocate was appointed as auctioneer. In this respect auction of attached landed property was advertised through banners and in the daily urdu newspaper `KHABRAIN' on 05.01.2005 and English Daily newspaper 'DAWN'
08.01.2005. So the appellant in wake of above publication in the above said newspapers participated in the auction proceedings and deposited his sale bid on 27.01.2005 which on opening was found highest as he offered a bid of Rs.1,55,00,000/- along with Call Deposit of Rs.15,00,000/- with the executing Court.
3. Different objection petitions bearing Nos. (i) 0.P #2/11/2005 titled as Mst. Zainab Begum and others v. I.D.B.P., (ii) 0.P#3/11/2005 titled as Abdul Qayum and others v. I.D.B.P. And (iii) 0.P#7/11/2005 titled Dr. Ahmad Khan and others v. I.D.B.P. Were filed by objectors. The learned counsel for JDs requested before the Executing Court that they are ready to deposit decretal amount and in this respect prayed for permission to deposit decretal amount and to not confirm the auction report. In this respect learned Executing Court passed an order vide order sheet dated 31.01.2005 which is reproduced as below: Barrister Masroor Shah has filed power of attorney on behalf of J.Ds., placed on file. Auction report has been received but the learned counsel for the J.Ds. Stated at the bar that their clients are ready to pay the amount, therefore, the auction report may not be confirmed. In view of the statement at the bar, the auction report is kept pending till next date for the purpose of adopting methodology for the payment of the decretal amount. To come up on 21.12.2005.
In view of the fresh development this petition also to come along with E.P. On 21.02.2005.
4. Record further reveals that before the confirmation of auction proceedings and decision on objection petitions, the judgment debtors started paying decretal amount in piecemeal manner after above referred order dated 31.01.2005 and one of J.Ds. Col. Muhammad Amir Khan tendered a cheque No.67875409 on 21.02.2005 valuing Rs.40,88,509/- which was handed over to the Registrar of this Court for onward payment to D.H and auction report was kept pending . Similarly, the J.D also, filed appeal against the attachment order and remain continued to pay further remaining outstanding decretal amount vide order sheet dated 21.03.2005.
5. The record reveals that J.Ds further paid decretal amount and detail of same is lying on record of the execution petition's file, however as asserted by learned counsel for appellant the present appellant filed application for the confirmation of auction report to the extent of undisputed, unobjected auction property attested by Oath Commissioner on 30.01.2006 but same was not entertained so appellant has annexed the same application in original with the instant FAB much after the date of submission of auction report dated 27.01.2005. The J.Ds before filing of above application of appellant satisfied the decretal amount by paying entire decretal amount. So the learned Banking Court held that since judgment debtors have deposited entire decretal amount, therefore, execution petition No.02/10/2004 was consigned to Record Room vide order dated 08.06.2009 after payment of entire decretal amount from which the present appellant is aggrieved.
6. Learned counsel for the appellant argued that the impugned order dated 08.06.2009 is against facts and law as he being highest in bid was legally entitled to have been given an opportunity to deposit the remaining auction amount for entire properties particularly those properties against which no objection petitions were filed. He added that the learned Executing Court received the decretal amount in piecemeal manner without first setting aside the attachment order as well as auction proceedings. When above position came to his knowledge he filed an application for confirmation of the auction proceedings. He added that the appellant was interested party even then was not put to notice when judgment debtors were allowed to deposit decretal amount, so it was received by Executing Court without jurisdiction and against law so the impugned order dated 08.06.2009 be set aside and his highest bid according to auction report dated 27.01.2005 by auctioneer may kindly be confirmed.
7. On the other hand, learned counsel for the respondent/judgment debtors argued that auctioned landed properties were not ownership of the Premier Sugar Mills Mardan but were leased out to Premier Sugar Mills Mardan in the year 1947 for 60 years while the management of the factory changed from one hand to other. He added that objection petition i.e. O.P # 2/11/2005, O.P # 3/11/2005 and O.P # 7/11/2005 were filed and JDs were allowed to deposit decretal amount and learned executing Court on the prayer of JDs did not confirm the auction report and kept its confirmation pending. He further added that the attachment as well as auction proceedings were void, ab initio and illegal. He argued that the highest bid of appellant in auction vide auctioneer's report dated 27.01.2005 was not confirmed rather was kept pending vide above discussed order dated 31.01.2005 and remained as such till payment of last chunk of decretal amount by the Executing Court. Moreover, no attempt on the part of so-called highest bidder was made by filing any application before deposit of decretal amount by J.Ds and further argued that application dated 30.01.2006 is afterthought, self-made, illegal, collusive and was not submitted before the learned Executing. Court, so has no any legal effect upon the rights of respondents/Ex.JDs. He further added that respondents/J.Ds lawfully deposited the decretal amount with the permission of Executing Court, thus appeal of the appellant is without any substance so is liable to be dismissed as after payment of entire decretal amount, decree holder became satisfied, resultantly execution petition was lawfully consigned to Record Room.
8. Arguments heard, record perused.
9. From the perusal of record, it reveals that decree was passed in favour of Industrial Development Bank of Pakistan (IDBP) on 8.04.2004 and that decree was converted into execution of decree and afterward execution process commenced. The properties of the judgment debtors were attached and once were put to auction but that auction could not finalize and second round of auction proceedings were initiated after publication in the newspapers KHABRAIN' and 'DAWN' and thereafter present appellant and others participated. The appellant offered a bid of Rs.1,55,00,000/- for the purchase of attached properties with Call Deposit of 15,00,000/- however, said auction was neither finalized nor confirmed as so many objection petitions as discussed above were filed, the judgment debtors moved an application for showing their readiness for depositing of decretal amount and keeping confirmation process of auction report dated 27.01.2005 as pending. So J.Ds were allowed to deposit decretal amount vide above discussed orders dated 31.01.2005 and 21.03.2005 resultantly the J.Ds paid entire decretal amount before order of consignment of execution petition dated 08.436.2009 impugned herein.
10. The perusal of order sheet dated 21.02.2005 reveals that at the time of receiving of auction report, the learned counsel for the judgment debtor shown their willingness to deposit the decretal amount. The relevant order sheet is reproduced as below: "Counsel for J.Ds. Has tendered cheque No.67875409 today amounting to Rs.40,88,509/- on behalf of one of the J.Ds. Col. Muhammad Amir Khan. The cheque has been handed over to the Registrar of this Court for onward payment to the D.H.
' Moreover, counsel for J.Ds. Stated at the bar that he has filed an appeal in which 22.2.2005 (tomorrow) date has been fixed and should be provided some time so that the appeal may be decided. Similarly, counsel for objector also wants some time to go through the provisions of Order XXI, Rule 23 about security. In this background of the case, the auction report is kept pending for the time being and case is adjourned to 21.03.2005."
11. Similarly, the report of auctioneer remained kept pending while J.Ds. Continued payment of the decretal amount. The decree holder received payment of Rs. 40,88,509/-. Similarly, cost of fund was also worked out on 02.03.2009 and after calculation, the outstanding entire decretal amount remained Rs.38,457.26/- while cost of fund was calculated as Rs.2,037,605/- in addition to legal expenses i.e. Rs.3,05,000/- so the learned Executing Court vide order dated 01.06.2009 clarified the position that the decree holder bank have received Rs. 40,88509, Rs.36,91,100/-, Rs.40,000,00/- and Rs.45,36,567/-. The relevant portion of order dated 01.06.2009 elaborating received amount by the decree holder is reproduced as below: "2. Upon passing of decree on 8.4.2004, the proceedings were converted into executions of decree and the requisite process was set in motion. During the execution, mortgaged properties were put to auction which exercise though remained fruitless in the first round, sealed offer could be fetched in the second round of. One Fazal Ali son of Ghulam Ali had tendered an offer of Rs.1,55,00,000/- for purchase of mortgaged properties, along with call deposit of Rs.1.5 million.
However, due to part payment of decretal amount, in the meanwhile the proposed sale could not be materialised/finalized. Some amount was further deposited by the judgment debtors, through cheques, towards satisfaction of decretal amount which was subsequently allowed to be withdrawn, through order dated 02.02.2009 passed by this Court upon an application by the DH Bank. The DH Bank was consequently required to furnish the details of outstanding amount against the judgment debtors which was provided through a statement of costs, wherein a total amount of Rs.23,42,605/- was shown to have been outstanding against the judgment debtors on 2.3.2009. The amount received towards satisfaction of decree was noted to be Rs.40,88,509/-, Rs.36,91,100/-, Rs.40,000,00/- and Rs.45,36,567/- respectively. The period of default was also calculated in the said statement to which the costs of fund, at the rate of Rs.
3.23%, per annum, was applied and was included in the grand total noted ibid. A sum of Rs.05,000/-, on account of legal expenses, was made part of the outstanding amount."
' So according to the same order dated 01.06.2009 the remaining decretal amount was calculated as Rs.41,491/- and the J.Ds. Agreed to pay the same amount through cross Cheque and the Execution Proceedings after satisfaction of decree were consequently consigned to the Record Room.
12. The contention of learned counsel for appellant that he submitted application for confirmation of auction report dated 27.01.2005 on 30.01.2006 which was not entertained and original was returned to the appellant is not believable so is misconceived, hence this argument is repelled as the order sheet dated 30.01.2006 reveals that on that date though the learned counsel for appellant/auction purchaser appeared but there is no mention of above referred application for the confirmation of the said auction report dated 27.01.2005. However, previous to that date the learned counsel and the appellant in person appeared many times before the learned Executing Court on 09.01.2006, 19.12.2005, 28.11.2005, 07.11.2005, 10.10.2005, 29.09.2005, 06.06.2005, 02.05.2005 and 11.04.2005 but neither any applications for confirmation of auction report or for vacation of orders dated 31.01.2005 and 21.03.2005 were moved. Thus, from the conduct of the appellant it appears that he did not bother to adopt the legal course either by submitting application for finalization or confirmation of auction proceedings, even he did not try to deposit the auction amount nor tried to stop the depositing of remaining decretal amount by the judgment debtors while the judgment debtors succeeded to pay the entire decretal amount with the permission of Court when auction report was kept pending so much so the decree holder received and enchased the deposited decretal amount by adopting legal course.
13. It is settled principle of law that bid in auction is considered as an offer only and without its confirmation, it does not create any vested right in the property for a successful bidder. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court in case titled Afzal Maqsood Butt v. Banking Court Respondent No.2, Lahore and 08 others (2005 CLD 967). Even otherwise, after submission of auction report and after deciding all objection petitions and before confirmation of the auction report the judgments debtors are once again given chance to either pay the decretal amount or the property under auction would be transferred to the successful bidder. No such stage reached in the instant case as the entire decretal amount was paid to the decree holder and after satisfaction of decree the execution petition was correctly and lawfully consigned to the Record Room on 08.06.2009.
' Thus in view of above, we are of the considered view, that I instant appeal being without substance is dismissed.