AZIZ-UR-REHMAN, J.---By means of this application under section 151, C.P.C. [C.M.A. No,161/2016], the 'Auction Purchaser' viz. Mr. Muhammad Ikhlaq Memon is seeking direction to the Nazir of this Court for handing over possession of the 'subject properties' to the 'Auction Purchaser' and for to undertake also the exercise of mutation thereof in the name of 'Auction Purchaser'. In opposition of C.M.A. No,161 of 2016, one Mst. Maqbool Ghani wd/o Zakria Ghani [Judgment-debtor No,3] in her own capacity and as an attorney of others has filed a detailed 'counter-affidavit', wherein, she has not only vehemently and specifically denied the contents of C.M.A.
No,161 of 2016 [filed by auction purchaser] but also has seriously controverted the averments and assertions made therein as being wrong and incorrect. Likewise, the Decree-holder Bank [Now NBP which has taken over/acquired the aforesaid proceedings from UBL through CIRC], has also filed a detailed 'counter-affidavit', wherein, NBP-Decree-holder Bank besides, controverting the contents of C.M.A. No,161 of 2016, has prayed that the said application filed in a 'disposed off' Execution Application No,47 of 1997, cannot be entertained, as the Judgment-debtors, have now fully satisfied the 'Final Decree' dated 08.06.1996 passed in Banking Suit No,1870 of 1993. For proper understanding the dispute as being raised, I would like to refer to some of the relevant facts which run as follows:-
2. Messrs UBL filed a Suit No,1870/1993 [UBL v. Hyderabad Electronic Industries Ltd. and others] for recovery of Rs,12,23,07,698.53 under the then Banking Tribunal Ordinance,1984. The said suit was decreed on 08.06.1994 by Banking Tribunal for Karachi and Sukkur at Karachi in favour of the Plaintiff Bank for Rs,86,411,808/- with future 'mark-up' from the date of decree till realization at the latest rate prescribed by the State Bank of Pakistan. Besides, the defendants were also made liable to pay 'mark-up' for 210 days of 'cushion period' on the outstanding amount and proportionate costs. A 'final decree' for sale of the mortgaged properties was also granted. The details of 'mortgaged properties' are given herein-below:- i. All that piece and parcel of land bearing Plot No,F-1, Block-IV, admeasuring 2372 sq.yds., or thereabout situated in Lessor Improvement Scheme No,1, Karachi belonging to Judgment-debtor No,2. ii. All that piece and parcel of land bearing Plot No,F-2, Block-IV, admeasuring 1089 sq.yds, or thereabout Improvement Scheme No,7, District Karachi belonging to Judgment-debtor No,3. iii. All that piece and parcel of land bearing Plot No,F-2/I, Block IV-V, admeasuring 1127.28 sq.yds, or thereabout situated in KDA Scheme No,7, Bahadurabad, Karachi belonging to Judgment-debtor No, 4. iv. All that piece and parcel of land bearing Plot No,F-243, within the jurisdiction of. SITE Police, SITE Survey Sheet No,35P/1- 35L/13, admeasuring 2.00 acres, situated at Sindh Industrial Trading Estate Area of Trans Lyaril Quarters, Karachi belonging to Judgment-debtor No,11. v. Bearing No,94-SITE Survey Sheet No,42-43, Survey Sheet No,359/1 and 35L/13 admeasuring 1.97 Acres Sindh Industrial Trade Estate Area of Trans Lyari Quarters, Karachi belonging to Judgment-debtor No, 1.
3. The defendants/Judgment-debtors despite passing of judgment and decree dated 08.06.1994, nevertheless, failed and/or avoided to pay the 'decretal amount' to the Decree-holder bank. Consequently, the Decree-holder Bank was constrained to file the above Execution Application on 12.09.1994 [Old Execution No,05 of 1995-New Execution No,47 of 19971, before the then Banking Tribunal-I for Karachi and Sukkur at Karachi.
4. The Banking Tribunal at Karachi, on 21.08.1995 issued 'writ of attachment'. The 'writ of attachment', as is evident from order 24.10.1995, was also served. The Judgment-debtors, it appears, inter alia had also filed an Application under section 12(2), C.P.C. Being found as objections to the Execution, the Judgment-debtors were directed vide Order dated 17.03.1996 to deposit the decretal amount in cash or to furnish Bank Guarantee for the decretal amount within a period of 02 weeks, as required under Order XXI, Rule 23-A, C.P.C., i,e, prior to the consideration of the 'objections'. The Judgment-debtors, however, failed and/or avoided to comply with order dated 17.03.1996 and subsequent order dated 10.04.1996 whereby, time was extended up-to 13.05.1996.
Notwithstanding, extension of time Judgment-debtors, nonetheless, failed to do the needful. Under such circumstances, 'sale proclamation' in respect of mortgaged properties i,e, referred to and mentioned at Serial Nos,1 to iii hereinabove, was issued vide order dated 13.05.1996.
5. Upon transfer of the Execution Application to this Court, learned Single Judge of this Court, acting as a Banking Court under the provisions of the Banking Companies Recovery of Loans, Advances, Credits and Finances Act XV of 1997 [In short RLAC&F Act of 1997], issued notice under section 7(6) of Act XV of 1997 to Judgment-debtors, Later on, vide order dated 8.10.1998, Nazir of this Court was directed to invite 'sealed bids' through advertisement in 'daily newspapers' in respect of the 'mortgaged properties'.
6. The sale proclamation, thereafter, was published in the Daily Newspapers i,e, 'Jang', 'Dawn' and 'Mina' , Karachi, thrice on 15.5.1999, 24.7.2000 and 24.10.2000, but no one come forward to submit his offer before the Nazir of this Court. The Nazir of this Court thereafter, submitted his report dated 22.11.2000, whereupon, the Court by order dated 11.12.2000 again directed the Nazir of this Court to make further efforts for sale of the mortgaged properties.
7. Fresh 'sale proclamation' thereafter, was published in Daily Newspapers on 26.1.2001 i,e, for the fourth time. The Nazir of this Court after completion of 'auction process' made a reference dated 14.2.2001 to the Court. Per said report of Nazir, Mr. Muhammad Ikhlaq Memon, was the only bidder who had made an offer dated 13.2.2001 and was willing to purchase all the 03 properties i,e, property Nos,i, ii and iii for Rs,1,19,78,600, Rs,55,53,900 and Rs,57,47,700/- respectively. The 3 pay orders of 'Auction Purchaser' for amounts i,e, Rs,11,97,860/-, Rs,2,55,390/- and Rs,5,74,770/- were also attached with Nazir' Reference dated 14.02.2001. The Hon'ble Court by order dated 26.2.2001, accepted the negotiated offers of the 'Auction Purchaser' viz. Mr. Muhammad Ikhlaq Memon, however, only after when, the auction purchaser raised his offer from Rs, 2,32,80,280/- to Rs, 2,41,00,000/- with break-up as follows:- S.No.Description Amount [Rs.] i. Property No. 11,21,00,000 ii. Property No. 259,00,000 Iii. Property No. 361,00,000 Total 2,41,00,000 8.The sale of the 3 'subject properties' in favour of the auction purchaser, it is significant to note, was free from all encumbrances, dues, liens, charges, litigation, disputes, mortgages, utility dues, such as, electricity, gas, telephone, water and sewerage, property tax, Income Tax and all other Federal and Provincial Government dues. The auction Purchaser, thereafter,, was directed to deposit the 'balance sale price' of the 'subject immovable properties' with Nazir of this Court with one month time w,e,f, 26.02.2001. Upon deposit, Nazir was directed to take further action in accordance with law. The deposit of 'balance amount' by the 'Auction Purchaser' is evident from order dated 09.04.2001.
9.Nevertheless, order dated 26.02.2001 was impugned/challenged by judgment-debtors in Special High Court Appeal No,94 of 2001 [Zakria Ghani and others v. UBL and others]. On 12.04.2001, when the said Special HCA No,94 of 2001, came-up before the Division Bench of this Court, then while, issuing notice to the Respondents for 25.04.2001 till then, further proceedings were stayed. The 'ad-interim order' dated 12.04.2001 reads as follows:- "12.04.2001.
Mr. Abul Inam, Advocate for the Appellant.
1. Granted.
2. Mr. Ameer Hani Muslim Advocate is present in Court and waives notice on behalf of Respondent No,9. Mr. Abul Inam undertakes to provide copies to Mr. Ameer Hani Muslim today and also record the address of the Respondent No,9 in the memo of appeal in red ink. Issue notice to the Respondents Nos,1 to 8 for 25.04.2001.
Let notice also be served through courier.
3. Notice as above. Till that date no further proceedings pursuant to the impugned order shall be taken."
10.The Spl. H.C.A. No, 94 of 2001 IZakria Ghani and others v. UBL and others], that is to say, much after deposit of the entire 'sale consideration' in compliance with Court's order dated 26.02.2001 passed in Execution No, 47 of 1997 by Single Bench of this Court, when again came-up before the 'Division Bench' of this Court then, a consent order of 31.05.2001, was passed. The relevant part of Order dated 31.05.2001, passed by a learned Division Bench of this Court in Spl. H.C.A. No,94 of 2001 [Zakria Ghani and others v. UBL and others], reads as follows:- " pursuant to the order of the Court dated 25.05.2001 notice to the appellant was apparently served but it seems that he is detained in civil prison and has not been produced in Court. It may be added that the fact of his detention was not known to the Court while passing the earlier order.
Mr. Abbas Ali has requested for adjournment on the ground that Mr. Abul Inam, learned counsel for the appellant is out of country and we do appreciate that in view of his detention in prison, it would be difficult for the appellant to make alternate arrangement therefore, an order directing his personal appearance might not serve any useful purpose. Mr. Mansoorul Arfin however, argued that the existing state of affairs was operating to the prejudice of the Respondent No,9 in as much as whereas he had deposited the entire sale consideration of about Rs,25 million. Further process towards finalization of the sale in his favour has been held up. He further states that he is unable to suggest that the money deposited be kept in profit bearing securities as the Respondent No,9 considered the same to be interest and does not accept the same.He has therefore, suggested that without prejudice to the Respondent's claim he may be allowed to withdraw his 90% of the amount deposited which, in case he succeeds would be redeposit. Mr. Haider Raza Naqvi, learned counsel for the respondent No,1 has no objection to the same as regards the interest of the appellant we are satisfied that the same will not be prejudiced in as much as in case the appellant succeeds the Respondent No,9 could conceivably claim any interest in the property. Mr. Abbas Ali also accepts this position and accords his consent to the Court.
In view of the above, we would direct the after retaining the amount of 10% the remaining amount deposited by the Respondent No,9 be refunded to him. It is made clear that this is without prejudice to his right and that in case he succeeds he will redeposit such amount within one week from the date of the order. In the event of failure to deposit the amount of 10% shall stand forfeited. [Underlining is mine].
C.M.A. No,782/2000 stands disposed of in terms of the above and further proceedings for the sale are stayed."
11. The above mentioned Spl. H.C.A. No,94 of 2001 filed by judgment-debtors /Zakria Ghani and others v. UBL and others] under section 21 of the then Banking Companies [Recovery of Loans, Advances, Credits and Finances] Act, 1997 was heard and decided by a Hon'ble Division Bench of this Court vide judgment dated 07.03.2002. Being relevant, 'Para-14' therefrom is reproduced hereinbelow: "14. As regards the acquisition of vested rights in the Respondent No,9, the relevant provisions of Order XXI, C.P.C. indicate different stages at which specific orders are required to be passed by the executing Court. Under Rule 84 a person is to be declared as the purchaser of the property and thereafter he is required to deposit 25% of the consideration at one stage and the remaining 75% at another. Thereafter applications for setting aside the sale are to be considered and after disposal of such applications an order confirming the sale is required to be passed under Rule 92. Admittedly no order accepting the order [offer] of the Respondent No,9 and declaring as a purchaser was passed prior to the impugned order and Mr. Mansoor-ul Afrin candidly conceded that the order ought to be treated as one under Rule 84 and the observations regarding confirmation of the sale were unwarranted. Indeed the order dated 09.04.2001 itself shows that the sale had yet to be confirmed. In the circumstances, we are clearly of the opinion that no confirmation of sale in favour of the Respondent No,9 had actually taken place and therefore, it could not be asserted that he had acquired rights in the property. For foregoing reasons, we are of the opinion that even if the strict requirements of Order XXI, C.P.C. had to be deviated from the interest of justice demanded that when a higher offer was brought to the notice of the Court, it should not have proceeded to confirm the sale in favour of the Respondent No,9. For these reasons, we would allow this appeal and set aside the impugned order and direct that the properties be resold in accordance with law. Parties to bear their own costs." [Underlining is mine].
12.The 'Auction Purchaser' viz. Muhammad Ikhlaq Memon [Respondent No,9 in H.C.A. No,94 of 2001], feeling aggrieved himself by judgment dated 07.03.2002 passed by a Hon'ble Division Bench of this Court in Spl. H.C.A. No,94 of 2001 [Zakria Ghani and others v. UBL and others], filed a Civil Appeal No,670 of 2002 [Muhammad Ikhlaq Memon v. Zakria Ghani and others] before the Hon'ble Supreme Court of Pakistan. The Hon'ble apex Court while, issuing notice for 29th March, 2005, on C.M.A. No,661 of 2005 filed in Civil Appeal No,670 of 2002 till then, status quo was ordered to be maintained.
13.The said Civil Appeal No,670 of 2002 was finally decided by Hon'ble Supreme Court of Pakistan vide its' judgment dated 27.05.2005 whereby, Civil appeal No, 670 of 2002 [Muhammad Ikhlaq Memon v. Zakria Ghani and others], was allowed and the 'impugned judgment' of Division Bench of this Court passed in Spl. H.C.A.
No,94 of 2001 [Zakria Ghani and others v. Messrs UBL and others] dated 07.03.2002 was set-aside. Apart from setting aside of judgment dated 07.03.2002, the three orders dated 26.02.2001, 27.03.2001 and 09.04.2001, passed in Execution No,47 of 1997 [Messrs UBL v. Messrs Hyderabad Electronics Industries Ltd. and others] were held as 'valid orders'. Paras 19, 20 and 21 from the said judgment of Hon'ble Supreme Court of Pakistan dated 07.03.2002 read as follows:- 19.The negotiated offer made by the appellant having been accepted by the Banking Court, the appellant had acquired legal rights and interests in the properties purchased by him. In Janak Raj's case [AIR 1967 SC 6081, it was held that once payment of the sale price by the auction-purchaser in compliance with the orders of the Court had been made, it was the duty of the Court to confirm the sale as required by Order XXI, Rule 92, C.P.C. Even where the Court fails to pass an order of confirmation that could not lead to deprivation of right of auction-purchaser or cause prejudice to him. In such a case, it could be deemed that the sale stood confirmed and would be deemed to have become absolute in title by virtue of section 65, C.P.C. which would relate back to the date of sale. In the cases of Hudabia Textile Mills [Supra], the legal rights and interest of auction- purchaser were recognized which could not be defected.
20.In our view the impugned judgment by the learned Division Bench of the High Court of Sindh suffers from errors of law and fact, as pointed out above, and therefore the same is not sustainable at law.
21.For the forgoing reasons, this appeal is allowed with costs throughout. Consequently, the impugned judgment dated 07.03.2002, passed by a learned Division Bench of the High Court of Sindh at Karachi in Special High Court Appeal No,94 of 2001 is set aside. The orders date 26.02.2001, 27.03.2001 and 09.04.2001 passed by a learned Single Judge in Chambers are held to he valid." [Underlining is mine].
14. At this juncture, order dated 26.02.2001 which was also upheld by the Hon'ble Supreme Court of Pakistan through its' judgment dated 07.03.2001_ is also reproduced:- "26.02.2001 Mr. Hyder Raza Naqvi, Advocate for decree holder.
Mr. Saraj Ahmed Khan, Advocate for judgment debtors Nos,1 and 3.
Mr. Ikhlaq Memon, bidder, is also present in person.
(1)Adjourned.
(2)Nazir's reference dated 14-02-2001 is on record whereby it is stated that three properties were set for sale.
The property bearing Plot No,F-1, Block-IV, K.D.A. Scheme No,7, Karachi measuring 2372.66 square yards was offered at a price of Rs,1,19,78,600/-. The second property bearing No,F2, Block-IV, K.D.A. Scheme No,7, Karachi measuring 1089.76 square yards has been offered for purchase at the sum of Rs,55,53,900/- and the third property bearing Plot No,F-2/1, Block-IV and V, K.D.A. Scheme No,7, Bahadurabad, Karachi measuring 1127.28 square yards with building and shops, wall and fittings and fixtures etc. was offered for a value of Rs,57,47,700/- the value of the first property per the report dated 22-11-2000 was Rs,1,18,60,000/- whereas in regards to the second property was 60,00,000/- and as for the third, Rs,56,35,000/-. As regards the second property, the value that has now been received is lesser than the previous value. Otherwise the value now being offered for the other two properties is slightly higher. Mr. Ikhlaque Memon who has offered for the properties seeks to increase the value of the property No,1 to Rs,1,21,00,000/-, for the second one also to Rs,59,00,000/- and the third one to Rs,61,00,000/-. Mr. Hyder Raza Nagvi states that the bank wishes that another publication for sale may be made so that the properties could fetch additional price. The direction for the purpose of sale was earlier made on 11-09-2000 and the report was filed on 22-11-2000. Another order was passed on 11-12-2000 in which, it is asserted that the properties are located in a prime area of Karachi and further efforts could be made to sell the properties requested. Sale notices were issued in respect of the said properties and only one offer was received for sale free from all encumbrances, dues, liens, charges, litigation, disputes, mortgages, utility dues such as electricity, gas, telephone, water and sewerage, property tax, income tax and all other Federal and Provincial Government dues.
Mr. Ikhlaq Memon has in Court raised the value of all the three properties beyond that was offered in the reference dated 15-02-2001 of the Nazir. I would, therefore, confirm the sale of the raised sale price in respect of Plot No,F-1, Block-IV, KDA Scheme No,7, Karachi measuring 2372.66 square yards for sale to said Mr. Ikhlaque Memon at Rs,1,21,00,000/-, Plot No,F-2, Block-IV, K.D.A. Scheme No,7. Karachi measuring 1089.76 square yards at Rs,61,00,000/- and Plot No,F-2/1, Block-IV and V, .K.D.A. Scheme No,7, Bahadurabad, Karachi measuring 1127.28 square yards at Rs,59,00,000/-. The aforesaid sale shall be free from all encumbrances, dues, liens, charges, litigation, disputes, mortgages, utility dues such as electricity, gas, telephone, water and sewerage, property tax, income tax and all other Federal and Provincial Government dues. Let the sale price of the said three properties be deposited with the Nazir within one month from today. Upon deposit, further action shall be taken by the Nazir in accordance with law. The Nazir's reference dated 14-02-2001 is accordingly disposed of." [Underlining is mine].
15.It is significant to note, under order dated 27.03.2001 the 'Auction Purchaser' viz. Muhammad Ikhlaq Memon was directed to take steps in terms of Rule 85 of Order XXI, C.P.C. The auction purchaser, upon acceptance of offer and in compliance with order dated 27.03.2001, deposited the entire balance amount. This factum of deposit is quite evident from order dated 09.04.2009. Besides, under order dated 09.04.2001, Nazir of this Court was also directed to take steps for confirmation of the sale.
16.Corporate and Industrial Restructuring Corporation [In short CIRC] [upon transfer/acquiring the execution proceedings etc. from Messrs UBL] in its' capacity as a Decree-holder Corporation and Judgment-debtors feeling aggrieved themselves by the judgment of Hon'ble Supreme Court of Pakistan dated 07.03.2001 passed in Civil Appeal No,670 of 2002 [Muhammad Akhlaq Memon v. Zakria Ghani and others] filed two Civil Review Petitions, one each i,e, [i]. CRP No, 375 of 2005 [CIRC v. Muhammad Ikhlaq Memon and others] and [ii]. CRP No,383 of 2005 [Zakria Ghani and others v. Muhammad Ikhlaq Memon and others]. On 16.06.2006, when the above Civil Review Petitions came-up before the Hon'ble Supreme Court of Pakistan then, the following order was passed:- "16.06.2006 Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. M. A. Zaidi, learned AOR for the Petitioners in CRP No,383/2005 have moved an application for adjournment of this petition to a date after summer vacations on the ground that the learned Sr. ASC is indisposed having severe vertigo.
2.At this stage, the learned counsel for Petitioners in C.R.P. No,375/2005 prays for giant of interim relief on the grounds, inter alia that it would create legal complications, by giving rise to multiplicity of proceedings, in a protracted litigation, if the status quo as to the possession of the auctioned property was not ordered.
3.In this view of the matter, both the cases are adjourned to a date in the third week of September, 2006. Till then, subject to notice, status quo as regards possession of the property in dispute shall be maintained. [Underlining is mine].
17. During pendency of the aforesaid two CRPs and operation of the 'status quo order' passed in CRP No,375 of 20Q5 [CIRC v. Muhammad Akhlaq Memon and others], on 27.01.2015 when, Criminal Accountability Appeal No,39 of 2002 [Zakria Ghani and another v. The State] filed under section 32 of NAB Ordinance, 1999 against judgment dated 13.02.2002 passed by the Accountability Court No,1 of Karachi whereby, the appellants therein were convicted in Accountability Reference No,26 of 2000, came-up before the Hon'ble Division Bench of this Court then, the following order was passed:- "27.01.2015 Mr. Abdul Hafeez Lakho, for Appellant.
Mr. Saleem Akhtar Buriro, Additional P.G.
Mr. Noor Muhammad Dayo, ADPG, NAB.
Mst. Maqboola Ghani widow of Zakaria Ghani, Appellant No,l.
Mr. Ghulam Mustafa Memon, Relationship Manger, National Bank of Pakistan.
On the last date of hearing Mr. Abdul. Hafeez Lakho has stated that there was plea bargain between the principal accused and the Chairman, National Bank of Pakistan ("NBP"), entire amount has been paid and since both the accused have been 'expired, therefore, their legal heirs have right to contest the appeal as the sentence also imposed fiscal penalty.
Today Mr. Noor Muhammad Dayo has filed objection where it has been stated that the plea bargain between Appellants and the Financial Institution was stuck wherein the Financial Institution agreed to accept a sum of Rs,118.34 million as full and final settlement, which was accepted by the Chairman, NBP on 13.04.2006. It is further stated that a sum of Rs,70.673 Million on one stretch and Rs,47.712 Million in the second stretch were paid to the NBP and such plea bargain was accepted.
Both the learned counsel jointly state that this appeal be disposed of as both the Appellants have expired and so far as the penalty aspect is concerned it is no more in the field as the entire amount has been paid to the Financial Institution and such plea bargain has been accepted by the Chairman, NBP. The Officer from NBP present states that the amount settled between Appellants and NBP in the sum of Rs,118.34 Million was duly approved by the Board of the NBP.
In view of this position, the settlement is approved and the appeal is abated." [Underlining is mine].
18.Like-wise in another Accountability Appeal No,40 of 2002 [Zakria Ghani v. The State] filed under section 32 of NAB Ordinance 1999 against judgment dated 13.5.2002 passed by Accountability Court No,1 of Karachi in Accountability Reference No,4/2000 whereby, the Appellant was also convicted on 17.4.2015, came-up before Division Bench of this Court, then the following order was passed:- "27.04.2015 Mr. Abdul Hafeez Lakho, for Appellant.
Mr. Noor Muhammad Day, ADPG, NAB.
Mr. Rizwan Ahmed Siddiqui, Additional Director NAB.
Mr. Nazir Shahzad, Assistant Director NAB.
After hearing the learned counsel for the respective parties at length, we dispose of this appeal on the basis of the following joint statement: That the entire outstanding liability of the appellant has been paid to the National Bank of Pakistan who has accepted the amount as full and final settlement of outstanding liability of the appellant, therefore, on account of, death of the appellant this appeal stands abated." [Underlining is mine].
19.Perhaps, in view of the aforesaid orders, the Petitioner-CIRC-NBP, opted thereafter, to withdraw CRP No,375 of 2005 [CIRC-NBP v. "17.03.2015 C.M.A. No,244 of 2015 has been filed seeking permission under Order XXVI, Rule 6 of the Supreme Court Rules, 1980, to allow Mr. Muhammad Siddiqui Mirza, ASC, to appear on behalf of the Petitioners in Civil Review Petition No,375 of 2005 on the ground that Mr. Afzal Sindhu ASC, who had appeared in the matter at the time of hearing of the main appeal, has passed away.
2. In view of this circumstances. the application is allowed Mr. Muhammad Siddiqui Mirza, ASC, may appear on behalf of the Petitioner. Learned counsel now states that he has been instructed not to press C.R.P.
No,375/2005 as the decree passed against the judgment debtors stands fully satisfied by the judgment debtors. Order accordingly.[Underlining is mine].
3.Learned counsel appearing on behalf of the judgment debtors in C.R.P. No,375/2005 would like to further document the petition and place before the Court the orders passed in the execution proceedings. Let the same be done within a fortnight."
20. The instant Execution Application No,47 of 1997 [Messrs UBL v. Hyderabad Electronic Industries Ltd. and others] when thereafter, came-up before this Court on 2nd May, 2006 then, while dismissing/ rejecting the objections filed by Judgment-debtor on the Nazir's Reference dated 04th March, 2006, the auction already held was 'CONFIRMED' by short order dated 02nd May, 2006, in favour of the `auction purchaser' namely Muhammad Ikhlaq Mernon. The relevant part of short order of 2nd May, 2006 reads as follows:- "02.05.2006 For the reasons to be recorded later on, auction held under the orders of the Court is hereby confirmed and the objections filed on the Nazir's Reference dated 04.03.2006 by the judgment Debtors are dismissed.
However, Auction Purchaser shall deposit the equalizer at equivalent to prevalent rate of mark-upon the amount of 90% of sale consideration with effect from date of order of withdrawal dated 31.05.2001 passed in H.C.A.
No,94/2001 up-to-date with the Nazir of this Court within 10 days from today. Nazir to issue sale certificate in respect of properties namely (1) Plot Nos, F-1, (admeasuring 237.66 square yards), Block- IV, KDA Scheme No,7,Karachi (ii) F-2 (admeasuring 1089.76), Block-IV, KDA Scheme No,7, Karachi and (iii) F-2/1 (admeasuring 1127.28 square yards), Block-IV and V, KDA, Scheme No,7, Bahadurabad, Karachi in favour of Auction Purchaser and deliver possession on deposit of equalizer amount."
[Underlining is mine].
21. The aforesaid 'short order' and order dated 31.05.2006 subsequently, passed in present Execution No,47 of 1997, nevertheless, were also challenged by the J.Ds in Spl. H.C.A. No,242 of 2001 [Messrs Hyderabad Electronics Ind. Ltd. and others v. UBL and others]. In the said Spl. H.C.A. No,242 of 2006, the Division Bench of this Court on 12.06.2006 was pleased to pass 'status quo order'. Being relevant the same is reproduced herein below:- 12.06.2006 "1. Granted with all just exceptions.
2 and 3. The grievance of the appellant is that the learned Single Judge has disposed of the Execution No,47 of 1997 by a short order dated 02.05.2006, for the reasons to be recorded later on. The detailed order has not been passed as yet. He has submitted that consequential directions have been given and the appellant is handicapped in filing the proper appeal in the absence of detailed order by the learned Single Judge.
Mr. Abid S. Zuberi has submitted that the matter has already taken-up to the Hon'ble Supreme Court and the issue was decided by the Hon'ble Supreme Court, and therefore nothing is left to be determined.
We are persuaded to agree with the submission of Mr. Hafiz A. Baqi. In the absence of detailed reasons, the appellant as well this Court are handicapped in examining whether the impugned order is sustainable and whether any prima-facie case has been made out by the appellant for granting any interim relief.
In the above circumstances, the appeal is admitted to regular hearing with direction that this appeal shall be heard along with the appeal which the appellant may file after receiving the detailed order by the learned Single Judge. However, if no appeal is preferred, by the Appellant within a period of limitation, the present appeal shall be heard on its on merits. In the meanwhile the operation of the impugned order is hereby suspended. [Underlining is mine].
If any appeal is filed by the appellant after receiving the detail reasons, the said appeal shall be fixed for Katcha Peshi along with this appeal in the last week of August, 2006.
At the request of Mr. Abid S. Zuberi, it is further directed that the parties shall maintain status-quo till further order."
In the aforesaid Spl H.C.A. No,242 of 2006, the 'status quo order' passed on 12.06.2006 thus remained continue till 'disposal of Spl. H.C.A. No,242 of 2006 [Messrs Hyderabad Electronic Industries Ltd. and others v.
UBL and another], on 13.04.2016 when Spl. H.C.A. No,242 of 2006 was dismissed as not pressed.
22. The 2nd Civil Review Petition No,383/2005 [Zakria Ghani and others v. Muhammad Ikhlaq Memon and others], was finally 'disposed off' by Hon'ble apex Court vide its' detailed judgment dated 05.01.2016. The relevant paras 28 and 29 from the same judgment of 05.01.2016, are reproduced here-in-below:- "28. ...The judgment debtor had four opportunities to raise an objection about the non-mentioning of the reserve price at the time of the issuance of the sale proclamations. He then failed to raise this objection before the trial Court, the Division Bench of the High Court, and before this Court either in appeal or in the review. Now it is clear that there is no conceivable way by which the auction purchaser can be blamed for the act of the Court in not mentioning the reserve price. He was not even a party to the Court proceedings at the time of auction proclamations were prepared and issued. We are unable to see how it would further the ends of justice if we were to now non-suit the auction purchaser for the error of the Court and the negligence of the judgment-debtor.
29. .... we are unable to conclude that the judgment-debtor is entitled to any relief in the present case and the review must therefore fail. However we have noted that in the past case the judgment-debtor has perhaps been rather severely treated by the Bank. Although this is not the fault of the auction purchaser, taking into account the broader equities of the case from a humanitarian perspective, we feel that the ends of justice would be met if instead of the original price, in addition to the amount already deposited in Court by the Auction Purchaser as additional amount of Rs, 1,25,00.000/ (One Crore and twenty five lacs) is also deposited by him. Such deposit should be made within 30 days with the office of the Nazir of Sindh High Court which amount can thereafter be withdrawn by the judgment Debtor. This review petition is disposed off accordingly." [Underlining is mine].
23. Pursuant to and in compliance with the above judgment dated 05.01.2016 passed by the Hon'ble Supreme Court of Pakistan, the Auction Purchaser thereafter, also deposited PKR 125,00,000/- [One Crore and twenty five Lacs] with the Nazir of this Court on 28.01.2016. Upon decision of the Supreme Court of Pakistan, the 'Auction Purchaser', filed a statement in the aforesaid Special High Court Appeal No,242/2006, whereby, the judgment of apex Court was brought in the notice of Division Bench. The judgment-debtors also in view of such developments opted not to press Spl. H.C.A. No,242 of 2006 [Messrs Hyderabad Electronic Industries Ltd. and others v. UBL and another]. For and in view of this position, Spl. H.C.A. No, 242 of 2006 was consequently, dismissed by the Division Bench of this Court on 13.04.2016. The status quo order passed in Spl. High Court Appeal No,242 of 2006, on 12th June 2006, was thus stand vacated. The relevant part of order dated 13.04.2016 passed by Division Bench of this Court, for ready reference, is reproduced herein below: "13.04.2016
2. Attention is drawn to the order of previous date when the matter was adjourned in terms as stated therein. Today, it is stated before us that the proceedings before the Supreme Court have come to an end and it is further stated by means of the statement filed on behalf of the appellants that the execution proceedings before the learned trial Court have also come to an end. In such circumstances, learned counsel for the appellants stats that his instructions are not to proceed further with this appeal.
There is also today before us, fixed in orders, an application C.M.A. No,1202/2016, filed on behalf of the Respondent No,2 (auction purchaser). This application is in the nature of a contempt application, by which it is stated that the eight alleged contemnors listed therein have flouted the order of this Court made in this appeal dated 12.06.2006. Learned counsel for the Respondent No,2 states that notwithstanding the aforesaid position with regard to the main appeal, which learned counsel does not dispute, his instructions are not proceed further with the contempt application. It is stated that the alleged contempt took place some time in 2012. We have specifically asked learned counsel to assist the Court with reference to the affidavit filed in support of the contempt application as to exactly when and how the Respondent No,2 came to know about the alleged contempt. Learned counsel draws attention to Para-5 of the affidavit. With respect, we find this paragraph to the absolutely vague as no specific date or particulars are mentioned as to exactly when and how the Respondent No,2 came to know about the alleged contempt; As noted above, the contempt allegedly occurred in 2012 and this application has been filed in 2016. The delay remains unexplained. Even otherwise, it is well settled that the matter of any contempt is a matter between the Court and the alleged contemnor and even if the Court is satisfied on the basis of information laid before it that prima facie contempt has been admitted it is entirely at the Court's discretion as to whether the Court wishes to proceed further or not. In view of the situation now prevailing we are not minded to take up the matter of contempt further even if specific particulars had been given as to exactly when and how the Respondent No,2 came to know of occurrence of the alleged contempt. In view of this position, this contempt application is dismissed.
In view of what has been stated by the learned counsel for the appellants this appeal is also dismissed as not pressed. File is to be consigned to record." [Underlining is mine].
24.On 07.12.2016, 13.12.2016 and 16.12.2016 when listed C.M.A. No,161 of 2016 filed by the auction purchaser with a prayer that Nazir of this Court be directed to besides, 'hand over possession' of the 'subject properties' to the auction purchaser, mutate the 'subject properties' in the record of rights in the name, of auction purchaser viz. Muhammad Ikhlaq Memon, came-up before me then, I heard Mr. Abid S. Zuberi, learned counsel for the Auction Purchaser, Mr. Hafiz Abdul Baqi/Mr. Raghib Baqi, learned counsel for the judgment-debtors and Mr. Hamid Idrees, learned counsel for the Decree-holder Bank [Now NBP] and with their valuable assistance also gone through available record minutely.
25.Mr. Abid S. Zuberi, learned counsel for the 'Auction Purchaser while, arguing C.M.A. No,161 of 2016, strenuously pressed for issuing direction to the Nazir of this Court to hand over the 'subject properties' to the auction purchaser. The auction purchaser viz. Muhammad Ikhlaq Memon by order dated 27.03.2001 passed in Ex. No,47 of 1997, it is needless to mention, was directed to take steps as required under Order XXI, Rule 85, C.P.C. The 'Auction Purchaser' thereafter, per Mr. Abid S. Zuberi, also deposited the 'balance amount' of sale consideration. This factum of deposits of balance amounts has been noted in order dated 09th April, 2001.
Under the same order of 09.04.2001, Nazir of this Court was also directed to take steps for 'confirmation' of the sale. The Judgment-debtors anyhow, preferred a Spl. H.C.A. No,94 of 2001 [Zakria Ghani and others. v. UBL and others], against the order dated 26.2.2001, passed by a learned Single Judge of this Court in Execution Application No,47 of 1997. The said Spl. H.C.A. No,94 of 2001, later on, was allowed by a learned Division Bench [D.13] of the High Court of Sindh vide judgment dated 07.03.2002.
26.Mr. Abid S. Zuberi next contended that said judgment of 07.03.2002 passed by a Hon'ble Division Bench of this court, was, nevertheless, challenged by the 'Auction Purchaser' in Civil Appeal No,670 of 2002, [Muhammad Ikhlaq Memon v. Zakria Ghani and others]. The said Civil Appeal No,670 of 2002, was finally allowed on 27th June, 2005. Per the said judgment of 27th June, 2005 not only the 'impugned judgment' of 07.03.2002 [passed by the Division Bench of this Court], was set aside but also thereby, the apex Court 'confirmed'/'upheld' the other 03 orders i,e, dated 26.02.2001, 02.05.2006 and 09.04.2001 passed by a learned Single Judge of this Court in Execution No,47 of 1997. The 'Auction Purchaser' viz. Mr. Muhammad Ikhlaq Memon, was thus declared a genuine/lawful purchaser/title holder of the 'subject properties'.
27.Upon 'confirmation of sale' in favour of 'Auction Purchaser', vide order dated 02.05.2006 passed in Ex.
No,47 of 1997 and pursuant to order dated 7.3.2002 passed by the Apex Court, the Nazir of this Court, thereafter, issued 03 'sale certificates' in respect of 'subject properties' in favour of the 'Auction Purchaser' i,e, one in respect of each property. Per Mr. Abid S. Zuberi, no doubt, against order of 2nd May, 2006, the Judgment-debtors filed a Spl. High Court Appeal No,242/2006 [Messrs Hyderabad Electronic Industries Ltd. and others v. UBL and others]. Initially in the said Spl. H.C.A. No,242 of 2006 the Judgment-debtors had also obtained a 'status-quo'/'suspension order' on 12.06.2006. Later-on, however, upon adjudication of C.R.P.
No,383 of 2005 on 06.01.2016, the Judgment-debtors opted not to press the said Spl. H.C.A. Resultantly, the same was consequently, dismissed on 13.4.2016 'as not pressed'. The injunctive orders earlier passed on 12.06.2006 in Spl. H.C.A. thus stand vacated.
28. Per Mr. Abid S. Zuebri, learned counsel for the auction purchaser due to issuance of 'status-quo'/'interim order' dated 12.06.2006 passed in Spl. H.C.A. No,242/2006, no further proceeding were thus undertaker. or could otherwise, have been undertaken by the Nazir of this Court for handing over 'possession' and/or 'mutation' of 'subject properties' to in favour of auction purchaser. Moreover, the matter was then also sub judice before the Hon'ble Supreme Court of Pakistan in Review Petitions. The afore-said Spl. H.C.A. as such was then adjourned sine-die till final 'adjudication' of the lis by the apex Court. The Decree-holder Bank, on 18.03.2015, however, withdrew the Civil Review Petition No,375/2005. The effect of such withdrawal of the Civil Review Petition, per Mr. Abid S. Zuberi, is a straight forward acceptance of the earlier judgment of Hon'ble Supreme Court of Pakistan passed on 27th June, 2005 in Civil Appeal No,670 of 2002 [Muhammad Ikhlaq Memon v.
Zakria Ghani and others]. Lastly, Mr. Abid S. Zuberi, learned counsel for the Auction Purchaser contended that the vested rights of 'Auction Purchaser' also up-held by the apex Court, in no event can be taken away on the basis of false and pseudo pleas. Mr. Abid S. Zuberi, finally prayed for allowing C.M.A. No,161 of 2016 otherwise, the 'Auction Purchaser' shall be prejudiced seriously. Mr. Abid S. Zuberi, in support of his contentions placed reliance on the following case-laws: i.2016 SCMR 66 [Mujahid Kareem and others v. NBP through Manager and others] ii.PLD 2016 SC 229 fZakaria Ghani and 4 others v. Muhammad Ikhlaq Memon] iii. 2016 CLD 1260 [Messrs Capital Poultry Feed and Dall Mills and others v. Presiding Officer of Banking Court, Islamabad and others]
29. In contra, Mr. Hafiz Abdul Baqi/Mr. Raghib Baqi, learned counsel for the Judgment-debtors forcefully contended that C.M.A. No,161 of 2016 is not only mis-conceived but also mis-leading. Per Mr. Hafiz Abdul Baqi, C.M.A. No,161 of 2016, filed by the 'Auction Purchaser' for handing over possession of the 'subject properties' to him, under law, cannot be entertained in this Execution Application, which according to learned counsel for the Judgment- debtors, has already 'disposed off' vide order dated 16th January, 2015. Likewise, the prayer for 'mutation' of the 'subject properties' in the record of rights in favour of the 'Auction Purchaser' is also liable to be rejected in view of satisfaction of the 'Final Decree'. Learned counsel for the Judgment- debtors also referred to order of Hon'ble Division Bench dated 13 p4.2016 whereby, not only Spl. H.C.A. No,242 of 2006 was dismissed as withdrawn but the contempt application [C.M.A. No,1202/2016] filed by the 'Auction Purchaser' was also dismissed. Learned counsel for the Judgment-debtors, in support of his contentions, placed reliance on the following case-laws:- i. 1991 SCMR 923 [Lilaram v. Ghlam Ali alias Essa through Legal Heirs and others] ii.PLD 1971 SC 124 Mansab Ali v. Amir and 3 others iii.PLD 1988 SC 363 Abdul Gahlfar-Abdul Rehman and others v. Asghar All and others] iv.PLD 1964 SC 97 Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies] 30.Mr. Hamid Idrees, learned counsel for the. Decree-holder Bank [NPB] while, adopting the arguments of learned counsel for the Judgment-debtors also placed reliance on the order of this Court, passed on 16th January, 2015 whereby, according to him as well, the above execution was 'disposed off'. Per Mr. Hamid Idrees, the present application [C.M.A. No,161 of 2016] is 'disposed off' execution cannot be entertained.
31. As far as the contentions of the learned counsel for the Judgment-debtors, about 'satisfaction' of final decree and 'disposal' of the execution application vide order dated 16.1.2016 is concerned, the same, under law, cannot be termed a valid ground for to deprive the 'Auction Purchaser' from his accrued vested rights in respect of 'subject properties'. It is significant to note, the vested rights already accrued in favour of the auction purchaser have also been confirmed/up-held by the Apex Court in its' judgments. Moreover, even the so-called 'disposal' of Execution Application No,47 of 1997, if any, in no event prejudice or otherwise, deprive the 'Auction Purchaser' of his vested rights. It is worth to mention that 'SALE CERTIFICATES' in respect of 'subject properties' have already been issued by the Nazir of this Court in favour of the auction purchaser. In view of this position, any agreement and/or settlement agreement executed between the Judgment-debtors and Decree- holder Bank [NBP] and third party during 'attachment' and operation of the 'status quo order' passed on 12th June, 2006 in Spl. H.C.A. No,242 of 2006 [Messrs Hyderabad Electronic Industries Ltd. and others v. Messrs UBL and others] besides void is of no legal effect. More importantly, no one has challenged the 'SALE CERTIFICATES' in favour of the 'Auction Purchaser'.
32.Needless to say, all the 'mortgage properties' including 'subject immovable properties' since long are under attachment. This factum of attachment inter alia of subject properties is quite evident from orders dated 21:8.1995 and 24.8.1995 passed by the then Banking Tribunal for Karachi and Sukkur in the present Execution Application. In view of this position as well, the private alienation of the 'subject properties', if any, is void and of no legal effect. In this regard, I would like to refer to section 64, C.P.C. which reads as follows:- "64. Private alienation of property after attachment to be void. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment- debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment." [Underlining is mine].
33.Moreover, in terms of subsection [2] of section 23 of F.I.O., 2001, no Judgment-debtor after passing of 'Judgment' and 'Decree' and without seeking prior 'written permission' of the Banking Court, can transfer, alienate, encumber or part with possession of any assets or properties and if, it otherwise is done, then the same shall be 'void' and 'of no legal effect'. Subsection [2] of section 23 of the Financial Institutions [Recovery of Finance] Ordinance, 2001 [In short F.I.O., 2001] reads as follows:- "23. Restriction on transfer of assets and properties.-- [1].................
2. After pronouncement of judgment and decree by The Banking Court, including an interim decree under section 11, no judg ment-debtor shall without the prior written permission of the Banking Court transfer, alienate, encumber or part with possession of any assets or properties and any such transfer, alienation, encumbrance or other disposition by a judgment-debtor in violation of this subsection shall be void and of no legal effect." [Underlining is mine]. 34.Upon acceptance of the offer of auction purchaser and deposit of the remaining balance amount in compliance with Court's orders, the sale of the mortgaged properties in favour of the 'Auction Purchaser' becomes 'confirmed. In the present case, upon deposit of all balance amounts, as per Court's order, Nazir of this court has already issued three 'sale certificates', on 8.6.2006 i,e, one for each subject property. The subject properties, under law, vest in the 'Auction Purchaser' when the same were sold. In this regard section 65, C.P.C. reads as follows:- "65. Purchaser's title. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not form the time when the sale becomes absolute."
35.Not only the above, a 'status quo order' of 12th June, 2006 passed in Spl. H.C.A. No,242 of 2006 [Messrs Hyderabad Electronics Ind. Ltd. and others v. UBL and others] was also in operation i,e, till 13.4.2016 when Spl.
H.C.A. was dismissed as withdrawn. In view of this position as well, neither the Judgment-debtors nor the Decree-holder Bank [NBP], can frustrate the Court proceedings or otherwise they be allowed to usurp the vested rights of 'Auction Purchaser'. The vested rights of 'Auction Purchaser' in the case in hand, have also been up-held by the Hon'ble Supreme Court of Pakistan. Judicial sale, no doubt, attaches itself sanctity and as such, not only be saved in accordance with law but also full effect needs to be given to such judicial sale otherwise, people who purchase properties in judicial sale/auction will loose their confidence. In this regard reliance can be placed on the case of Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others [PLD 1987 SC 512]. The relevant paras 14 and 15 therefrom are reproduced hereinbelow:- "14. Therefore, the question is whether even if the technicalities of Order XXI, Rule 89 were not attracted, the Court was justified in refusing to confirm the sale on the ground that the decree was satisfied after the sale and before the confirmation of the sale; or even if the provisions of Rule 92 of Order XXI, C.P.C. were not directly applicable, the Court rightly refused confirmation on the aforesaid ground. In Nanhelal and another v. Umrao Singh AIR 1931 PC 33, the question of law had arisen whether on adjustment between the decree holder and the judgment debtor come to at any time before the confirmation of an execution sale, would nullify the decree taking away the very foundation of the Court's power to execute the decree, viz, the existence of the decree capable of execution. Their Lordship resolved this question in the following manner:- "In the first place, Order XXI, rule 2, which provides for certification of an adjustment come to out of Court, clearly contemplates a stage in execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected, a third party's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in rule 89 viz by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent on the purchase money which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale; see Article 166, Sch., Lim. Act, 1908. That this is so is, in their, Lordships opinion, clear under the wording of rule 92, which provides that in such a case (i,e, where the sale has been duly carried. out), if no application is made under rule 99: "The Court shall make an order confirming the sale and thereupon the sale shall become absolute."
Although the aforesaid decision turns on the provisions of the C.P.C. the general principle laid down therein that once a sale has been effected a third party interest intervenes which cannot be disregarded would be applicable in the present case. It cannot, therefore, be argued that the auction purchaser had no interest whatsoever before confirmation of the sale and the Court could disregard the same by merely looking at the arrangement made between the decree-holder and the judgment debtor about the satisfaction of the decree. In Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others PLD 1953 Lah. 147, similar view was taken and it was held that confirmation of sale cannot be withheld merely on the ground that the decree was wiped out or reversed before confirmation of the sale.
15. But apart from the above another vital principle is involved. In the American Jurisprudence (2nd Edition)
Volume 47, Article 178 at page 440, the general principles governing the discretion to grant or refuse confirmation of a judicial sale are discussed. It has been observed:- "Although in some jurisdictions a .more restrictive rule is followed in cases where it is urged that confirmation should be refused on the sole ground that an advance or upset bid has been received, the confirmation of, or refusal to confirm, judicial sales, as a general rule, rests largely within the discretion of the trial Court, and such determinations ordinarily will not be reviewed except for manifest abuse of such discretion. The discretion to be exercised is not arbitrary, however, but should be one which is sound and equitable in view of all the circumstances. The Court must act in the interest of fairness and prudence, and with a just regard to the rights of all concerned, and the stability of judicial sales. Thus, if the sale was fairly conducted and the property sold for a reasonable and fair value under the circumstances, the Court is ordinarily required in the exercise of its judicial discretion to confirm the sale."
In Article 179 on page 441 further observations as regards the policy of law in respect of judicial sales have been made as under:- "Nevertheless, the policy of the law does not require Courts to scrutinize the proceedings of a judicial sale with a view to defeat them, but on the contrary, every reasonable intendment will be made in their favour, so as to secure, if it can be done consistently with legal rules, the object which they are intended to accomplish. As a consequence, in order to maintain confidence in the stability of judicial sales, Courts have adopted the wise policy that confirmation will not be refused except for substantial reasons, and that in the absence of fraud or misconduct, the highest bidder will ordinarily be accepted as the purchaser of the property offered for sale."
The above passages from the American Jurisprudence clearly point out the dominant principle of law in such cases, namely, the stability of judicial sales. In this context the argument that since the Court was vested with the wide discretion to choose any mode of execution of the decree, it can likewise refuse confirmation of sale on any ground it chooses is without substance. Judicial discretion vested by statutory provisions cannot be construed in such a manner as it will arm the Court with arbitrary powers and would inevitably destroy the public confidence in the stability of the judicial sales as pointed out by the American Jurisprudence. Therefore, on facts as well as on principle the learned Single Judge went wrong in refusing confirmation on the ground that after the sale the decree had been satisfied. Even otherwise once the Court had made up its mind to execute the decree by attachment and sale by public auction, as long as the order so directing was in the field, the discretion vesting in it under section 8(3) of the Ordinance stood exhausted and a particular course of proceedings was brought into motion which had to culminate in a result contemplated by legal principles, and this course could not be diverted on the assumption that the executing Court had discretion to choose any mode of execution. In the premises the question of confirmation was to be regulated either by the C.P.C. or equitable principles under the provisions thereof or on general principles as pointed out above. From any angle the refusal of confirmation by the learned Single Judge is unsustainable and the auction purchaser was entitled, in the circumstances of the case to the confirmation of the auction sale. It was urged that the discretion was properly exercised because the purchaser himself was present when the negotiations between the decree-holder and the judgment debtor were taking place in Court and had applied at one stage for withdrawal of deposit. This argument is without substance because purchaser has not been shown to be a consenting party to the arrangement between the decree-holder and the judgment debtor. He had no doubt at one stage applied for withdrawal of the amount deposited by him on the ground that there was some clog on the title of the judgment debtor in the property subjected to Court sale but before any orders were passed on this application it was withdrawn stating that the same was made under wrong advice and the Court dismissed the application. It is well recognized that a proceeding withdrawn with the permission of the Court is wiped off from the record as nonexistent."
36. As far as the contention of Mr. Hafiz Abdul Baqi, learned counsel for the Judgment-debtors vis-a-vis non- maintainability of C.M.A. No,161 of 2016, in a so-called 'disposed off' of execution is concerned, the record of the present execution application, it is needless to say, speaks otherwise. No doubt, C.M.A. No,137 of 2014 [under section 151, C.P.C.] was filed by the Decree-holder Bank in the present execution with a prayer as below:- "...it is respectfully prayed on behalf of the Decree-holder that this honourable Court may be pleased to allow the Decree-holder to withdraw the above execution as matter has been compromised between the Judgment- debtor and Decree-holder to the extent of Decree of Rs,8,611,808/- out of which Rs,12,719 Million has already paid by the Judgment-debtor on 09.10.2017 and Rs,30 Million paid on 05.05.2014 remaining amount of Rs,43.692 deposited with the Decree-holder on or before 3.05.2014. As such the competent authority after sanctioning/acceptance of the proposal and payment directed to withdraw the above proceeding from this honourable Court."
But the same was later-on dismissed on 16.1.2015. For ready reference order passed on C.M.A. No,137 of 2014 [under section 151, C.P.C.] reads as follows:- "For hearing of C.M.A. No,137/2014 [Under section 151, C.P.C.].
16.01.2015.
Mr. Khaleeq Ahmed, Advocate for Decree Holder.
Mr. Hafiz Abdul Baqi, Advocate for Judgment Debtor. Mr. Umer Lakhani, Advocate for Auction Purchaser.
Learned counsel for the decree holder states that the judgment debtor has paid an amount of Rs,8641 Million for the satisfaction of the decree and the decree holder has handed over the title documents to the judgment debtor, therefore, this execution application stands satisfied and the application having become infructuous is dismissed accordingly.
Learned counsel for the auction purchaser is insisting upon to argue this matter further despite the fact that he has no application to seek any relief pending in this Court and the actual proceedings have already been disposed of."
37. As evident from order dated 16.1.2015, the listed application bearing C.M.A. No,137 of 2014 under section 151, C.P.C. was dismissed. Per record of the instant execution application at no stage this execution has been disposed off or otherwise, permitted as withdrawn.. Nevertheless, the instant execution application, if, it is to be deemed as `disposed off' then also it would not prejudice or otherwise, deprive/debar the 'Auction Purchaser' for applying the Court for handing over possession of the 'subject properties' and for mutation thereof as well through Nazir of this Court. Moreover, any payment or adjustment made outside the Court which has not been certified or recorded in terms of Order XXI, Rules 1 and 2, C.P.C. cannot be recognized by the executing Court. In this regard reliance can be placed on the case of P. Narasaiah v. P. Rajoo Reddy [1990 MLD 431]. The relevant paras 4 and 9 therefrom read as follows:- "4. For a proper appreciation of the question it would be appropriate to set out S.47, sub-rules (1) and (2) of R.1 of 0. XXI. R.2 of 0.XXI, C.P.C., as amended by the Amendment Act, 1976, as well as Art. 125 of the Limitation Act. They read thus: Section 47, C.P.C.: "47.--(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2)xx (omitted by Amendment Act, 1976 (w,e,f, 1-2-1977).
(3)Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation 1.--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.--(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his ,representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
0. XXI, C.P.C.: "R.1.--(1) All money, payable under a decree shall be paid as follows, namely:-- (a)by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or (b)out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or (c)otherwise, as the Court which made the decree, directs.
(d)(2) Where any payment is made under Cl.(a) or Cl. (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due ....".
"R.2.--(1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted, in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as, certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(2-A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless-- (a)the payment is made in the manner, provided in R.1; or (b)the payment or adjustment is moved by documentary evidence; or the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of R.1, or before the Court.
(3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree."
Art. 125 of the Limitation Act: Description of applicationPeriod of limitationTime from which period begins to run xxx xxx Xxx
125. To record an adjustment or satisfaction of , a decree.Thirty days. Or When the payment adjustment is made. xxx Xxx Xxx
9. Part II of the Code of Civil Procedure containing Ss. 36 to 74 deals with execution of decrees and orders.
Order XXI in the First Schedule to the Code also deals with the same subject. There can be no conceivable inconsistency between Ss. 36 to 74, and the several Rules contained in 0. XXI. Indeed, 0. XXI merely elaborates and provides detailed provisions to carry out the intent and purposes of the provisions contained in Ss. 36 to 74. The Rules in the First Schedule to the Code including O.XXI, are referable to Part-X containing Ss.
121 to 131. Section 121 says that the Rules in the First Schedule shall have effect as if enacted in the body of the Code..until annulled or altered in accordance with the provisions of the said Part. Section 122 empowers the High Courts in the country to make rules regulating 'their own procedure and the procedure of the Civil Courts subject to their superintendence, and that the Rules so made may annul, alter or add to all or any of the Rules in the first Schedule. Rules 1 and 2 of 0. XXI are evidently based on the assumption that a judgment-debtor would not, ordinarily, pay the amount due under the money decree passed against him outside the Court without ensuring proper proof of such payment. Rules 1 and 2, therefore, make detailed provisions providing the manner in which the payment or adjustment outside the Court should be made. They also provide that if any such payment or adjustment is made outside the Court, it should promptly be got recorded and certified by the Court which is competent to execute the decree, either at the instance of the decree-holder or the judgment- debtor. It also declares that a payment or adjustment made outside the Court, which has not been certified or recorded in accordance with R.2, shall not be recognised by any Court executing the decree. Rule 2 of 0. XXI does not deal with the payment or adjustment of the decree in Court, i,e,, in execution proceedings taken by the decree-holder. (The judgment-debtor may well wait for execution proceedings and go and pay the money. In case it is a money decree -- or satisfy the decree in the appropriate manner where it is the decree of any other kind. The payment so made, or the satisfaction provided by him will naturally be recorded by the executing Court. There can be no controversy about his payment/adjustment in such situation) a judgment-debtor need not wait for the decree-holder to take out execution. As soon as the decree is passed or at any time thereafter, the judgment-debtor can himself pay the money due under a decree; but this has to be done in any one of the three modes mentioned in 0. XXI, R.1(1). Now, the law says further that if money is paid or adjustment of decree of any kind is arrived at outside the Court, it should be promptly got recorded and certified as contemplated by R.2. This can be done either by the J.D. or by the decree-holder; but in the very nature of things, a judgment- debtor should be more concerned in having such payment or adjustment recorded and certified by the Court.
Article 125 of the Limitation Act provides a period of 30 days for applying to the Court for recording an adjustment or satisfaction of the decree, from the date of payment or adjustment. There is no provision for extending the said period. ...[Underlining is mine].
38.In the case in hand the 'Auction Purchaser' is suffering since long despite the fact that his vested rights have also been recognized by the Apex Court. This unfortunate situation leads to a general impression that 'Auction Purchaser' in a 'Court sale'/'auction' not only purchases the property[ies] but also the litigation.
Perhaps, due to such impression/reasons prevailed in the market, people, despite having wish to participate are reluctant to come forward and participate in the process of 'Court auction'/'sale'. In any event, the 'sanctity' of judicial sale is not only to be maintained in accordance with law but a full effect to such judicial sale also needs to be given for restoring confidence of the people who wish to purchase the properties in Court's auction.
39.The case laws cited by Mr. Abid S. Zuberi, learned counsel for the Auction Purchaser are not only relevant but also fully support the case of 'Auction Purchaser'. As far as the case-laws cited by learned counsel for the Judgment-debtors are concerned, the same besides, irrelevant are distinguishable under the facts and circumstances of the present case.
40. For and in view of all the above, C.M.A. No,161 of 2016 is granted as prayed and consequently, Nazir of this Court is directed not only to hand over possession of the 'subject properties' to the 'Auction Purchaser' but also take necessary steps for mutating the 'subject properties' in the record of rights in favour of/name of the 'Auction Purchaser' positively within a period of 30 days. Besides, Nazir for doing the needful is permitted/allowed to seek the services and assistance of police or other law enforcement agency[ies], if necessary in this regard.
C.M.A. No, 161 of 2016 stands 'disposed off' accordingly.