' MUJAHID MUSTAQEEM AHMED, J.---Precisely, background of the instant E.F.A. is that the respondent-bank filed a suit for recovery of loan amount against the present appellant/judgment- debtor (appellant), which stood decreed for Rs,64,89,875/- with cost of funds on 19.05.2012 and the suit was converted into an execution petition. Third time, learned Judge Banking Court, Rawalpindi, on 16.12.2014, passed order for auction of mortgaged-property through the court auctioneer Miss Rabia Ishaq Hanjra, Advocate. As per schedule, notices were to be issued to the parties on 23.12.2014; affixation of notices at the court premises as well as mortgaged-property and publication of notices in the Daily Khabrain were to be made on 02.01.2015 and auction was to be conducted on 02.02.2015 at 02:00 p.m. (place of auction not specified). Vide (undated) report of the court auctioneer, she has auctioned mortgaged-property at the spot on 02.02.2015 at 02:00 p.m. and Mubeen Arif, respondent No,1-A was the highest bidder, who had offered a bid of Rs,80,20,000/-.
2. The present appellant filed objections against the auction proceedings conducted by the court auctioneer mainly on the grounds (a) that proclamation was affixed in the court premises only 5- days before the auction thus offending Rule 68 of Order XXI, C.P.C., (b) that in `Parcha- Hazri/attendance-sheet prepared by the court auctioneer except the successful bidder, none has signed or thumb marked and as such the auction proceedings were conducted fictitiously with mala fide on the basis of pre-planning and connivance of respondent/1-A and decree holder respondent (c) that immediately after conclusion of the auction proceedings the successful bidder tendered 20% of sale price by Pay Order to the court auctioneer and this mode and manner of payment also hints that the auction proceedings were just a gallery play. The objection petition was contested by the respondents and vide impugned order dated 25.08.2015, learned Judge Banking Court dismissed the objection petition, confirmed the sale and passed order for issuance of sale certificate in favour of the successful bidder.
3. Feeling aggrieved by the impugned order, the appellant has assailed the same through instant E.F.A. mainly on the grounds (i) that the impugned order was passed in a hasty manner; (ii) that no order was passed by the court for depositing 20% of the sale value under Order XXI, Rule 90, C.P.C.
(iii) the, appellant has deposited 5% of purchase value in compliance with order of the court dated 06.03.3015 and this amount is still lying with the court, afterwards the court has not directed the appellant to deposit remaining 15% amount (iv) that the court has not seriously noticed the procedural defects/illegalities, committed by the court auctioneer, while conducting the auction proceedings (v) that during the days of auction proceedings, the appellant was doing job at Gilgit and as such no notice was issued to him prior to publication of proclamation, as mandated under Order XXI, rule 66(2), C.P.C. (vi) that the value of mortgaged auctioned property is more than eleven million but with mala fide the same has been auctioned at a low price. Whereas, the respondent-bank/decree holder and the successful bidder have supported the impugned order and prayed for dismissal of the instant appeal.
4. Heard.
5. Learned Judge Banking Court, Rawalpindi, in order dated 16.12.2014 has given schedule for auction of mortgaged-property but has not specified the place of auction. As such any publication/advertisement of auction program at the spot by the court auctioneer is unauthorized one and thus, auction proceedings at the spot have been conducted without specific order of the court. Moreover, the learned executing court/Judge Banking Court has ordered for publication of court notice in the Daily Khabrain on 02.01.2015 but record reveals that it was made on 22.12.2014 and this direction of the court has been willfully violated. The Banking Court also ordered for affixation of notices on the court premises and mortgaged-property under sale on 02.01.2015 but record of the learned executing court is silent regarding compliance of this order. Whereas, under Order XXI, rule 68, C.P.C., it is mandatory that the sale shall take place after 15-days from the date of affixation of copy of proclamation on court-house of the judge ordering the sale. This very time restraint in sale of immovable property hints that this provision is mandatory and its compliance is to be, made in strict sense and not in casual manner.
6. We have carefully scanned auction proceedings and the auction report submitted by the court auctioneer. The court auctioneer has also not mentioned in report that any notice was affixed at the court premises of the Judge banking court. Date of affixation of notice/proclamation as required under Order XXI, rule 66(2), C.P.C. at mortgaged property is also not given and only a stereotype report has been submitted that proclamation was made through publication in newspaper and posters were also pasted at conspicuous places. Similarly, no date of sending notice to the parties under Order XXI, rule 66(2), C.P.C., as directed by the learned executing court has been mentioned in it. Even otherwise when there was no specification of place of auction by executing court, the court auctioneer was not competent to intimate the judgment debtor or decree holder about venue of auction, mandatory requirement of Order XXI, rule 66(2), C.P.C.
7. In auction proceedings, only participation of four persons has been mentioned, whereas, on attendance sheet prepared in Urdu name of ten persons are incorporated with their mobile phone numbers. Identity cards of only four persons have been incorporated and in column of signatures or thumb mark of bid participants, only the successful bidder has affixed his signatures. If this whole auction report is examined, it loudly speaks that the auction proceedings have not been conducted fairly, in a transparent manner and in open competition. The payment of 20% of sale price through pay order just at the close of auction proceedings, even without leaving the spot by the successful bidder for a short interval, further makes all this process sham and fictitious. In the acknowledgment receipt of pay order, court auctioneer has directed the successful bidder to pay the balance sale price within 5-days and so was advertised in posters but later on, the poster on record was amended and 15-days grace period was shown for payment of balance amount, meaning thereby that general public was deprived to join auction proceedings, due to harsh/illegal stipulation of just 5-days for payment of balance sale price and all these factors hint that the court auctioneer conducted auction proceedings in haphazard and slipshod manner and has not proceeded according to the order of the learned Judge banking court/executing court. The learned executing court has in a very casual style ignored such illegalities and serious lapses in the auction proceedings by which the appellant has sustained substantial injury/prejudice and financial loss. In case law 2011 SCM R 1675 'Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt.
Limited through Chief Executive and others' august Supreme Court while observing that entire auction proceedings were fictitious and fraudulent; proclamation issued neither mentioned venue of auction nor was affixed at notice board of court and that minutes of auction proceedings and attendance sheet of parties and participants in auction were not placed on record, sale has been erroneously confirmed by the executing court, set aside the sale being violate of provision of Order XXI, rules 54(2) and 67, C.P.C.
8. Before examining legal question of effect of non-deposit of 20% of sale price by the appellant along with objection petition, We feel it expedient to reproduce rule 90 of Order XXI 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 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 realized at the sale, or furnishes such security, as the Court may direct]."
9. Learned counsel for the successful bidder has vehemently maintained that the present appellant has not deposited 20% of sale price in compliance with Order XXI, rule 90, 2nd Proviso, C.P.C. and on this ground alone, his objection petition was incompetent and so was rightly dismissed by the learned Judge Banking Court. Reliance has been placed on the Precedents reported as 2014 SCM R 1371 Wadeem Akhtar Tabasum v. Muslim Commercial Bank Limited and others' and 2014 SCM R 1662 'Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others v. Allied Bank of Pakistan and another'. Worth mentioning that in the latter Precedent the highest bid was more than value of the mortgaged property shown by the judgment debtor.
10.On the other hand, learned counsel for the appellant has maintained that vide order dated 06.03.2015, learned Judge Banking Court while entertaining the objection petition directed the appellant to deposit 5% - of purchase value till 19.03.2015 and the appellant complied with this order. Subsequently, the executing court never asked the appellant to deposit the remaining amount of 20% of sale value. In the given circumstances, due to lapse on the part of the court/court staff the appellant cannot be penalized. It is a known legal trite actus curiae neminem gravabit (an act of the court shall prejudice no man). This principle is founded upon justice, good sense and affords a safe and certain guide for administration of law and justice. It is meant to promote and'ensure that ends of justice are met, which prescribes that no harm or injury to the rights/interests of the litigant before the Court shall be caused by act or omission of the court. In PLD 2007 Supreme Court 582 `Zulfigar and others v. Shandat Khan', it was laid down that act of court or public functionary, on the actions of whom a citizen has no control should not be allowed to prejudice to anyone. Similar principle was laid down in 2002 SCM R 134 `Sajawal Khan v. Wali Muhammad and others'. In precedent 2011 CLC 1473 Peshawar `Misal Khan v. Managing Director Corporate Member, Karachi Stock Exchange and 2 others', the latter precedent has been followed.
As such, in view of the peculiar facts and circumstances of this case, the learned Judge Banking Court was not justified to dismiss appellant's objection petition for noncompliance of provisions of Order XXI, rule 90, C.P.C. In Precedent 2011 SCM R 1675, referred supra, it has been laid down that object of, deposit of such amount under Order XXI, . rule 90, C.P.C. is to ensure making of objection by bona fide persons and to prevent misusing of such rules to frustrate sale and that such condition could be condoned in exceptional circumstances, when the sale/auction was violative of mandatory provision of Order XXI, rules 54(2), 67, 85 and 86, C.P.C. The facts of the case in hand are identical to the facts of this precedent. As noticed earlier the auction was not conducted fairly, strictly adhering to the schedule given by the learned executing court and same is apparently proved to be sham, fictitious and the appellant has also deposited 5% of sale value in compliance with order of learned executing court. So in such a situation, the learned executing court was not justified to reject the objections of the appellant for non-compliance of Order XXI, rule 90, C.P.C., as in celebrated Precedent 2011 SCM R 1675 supra, it has been laid down that in exceptional circumstances such condition could be condoned by the court.
11. In consequence of above discussion, we are of the view that by not specifying the venue of auction by the learned executing court, non-service of notice on appellant 15-days before publication of proclamation of sale, non-affixation of notice/proclamation at the court premises of learned Judge Banking Court and the mortgaged property, not strictly adhering to the schedule prepared by the executing court for sale of mortgaged property by the court auctioneer and inherit defects in auction proceedings as highlighted supra, the mandatory provisions of Order XXI, rules 66(2)(a) and 68, C.P.C. have been offended/violated, as such serious prejudice has been caused to the appellant and his rights have been adversely affected. As such to meet the ends of justice, the instant E.F.A. is allowed, impugned order is set aside and while accepting the objection petition of the appellant, the auction proceedings and confirmation order of sale in favour of respondent No,1-A, are also set aside.