Through the instant First Appeal Against Order, filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellants seek setting aside of the order dated 28.10.2017, passed by the Banking Court-II, Lahore (the "Banking Court") whereby their objection petition was dismissed.
2. Learned counsel for the Appellants inter alia submitted that the Banking Court has not taken into consideration the true- facts and circumstances of the case while dismissing the objection petition of the Appellants; that the interim relief was granted by the Banking Court on 23.05.2017 and the next date of hearing was fixed as 30.05.2017 but the auction was completed on 25.05.2017 which is totally in contravention of order dated 23.05.2017; that the impugned order is against law and facts; the objection petition was dismissed without affording proper hearing to the Appellants; that the Banking Court has failed to appreciate the fact that the Appellants are in possession of the disputed property and if they are ousted without proper adjudication of the lis, they would suffer an irreparable loss; that the judgment and decree was obtained on the basis of misrepresentation and fraud.
3. On the other hand, learned counsel appearing on behalf of the Respondents Nos,1, 4 and 5, vehemently controverted the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of the Appeal on the ground that impugned order has been passed strictly in accordance with law and as such does not call for any interference by this Division Bench.
4. We have heard the arguments of both the sides and perused the record.
5. The record reveals that the Appellants have laid much stress on the point that the Banking Court vide order dated 23.05.2017 granted interim relief to the Appellants that subject to deposit of 50% cash of the decretal amount in the Court account or Bank surety, the auction proceeds shall remain suspended. He further contended that as the next date of hearing was fixed as 30.05.2017, therefore, the Appellants were to deposit the 50% till 30.05.2017 but the Banking Court dismissed the objection petition against the law and facts. The bare examination of the order dated 23.05.2017 reflects that it has two parts. In the first part although the Banking Court fixed the next date of hearing as 30.05.2017 yet the same was for submission of reply to the application and arguments but not for the deposit of 50% of the decretal amount. Whereas in the second portion conditional interim relief was granted that if the Appellants deposit 50% cash of the decretal amount in the Court account or Bank surety, the auction proceeds shall remain suspended otherwise it will continue. Meaning thereby, that no time till 30.05.2017 was afforded to the Appellants for deposit of 50% cash of decretal amount or Bank surety, therefore, subsequently conducting auction proceedings i,e, on 25.05.2017 are not in defiance with the Court's order. Furthermore, the Banking Court has also observed in the impugned order that the Appellants have failed to point out any irregularity or fraud in publication or conducting the auction of mortgaged property. If fraud is alleged in an objection application, its necessary ingredients must be pleaded, so as to subsequently prove the same. Accordingly, general and bald allegations of fraud etc. could not form basis to upset the proceedings otherwise validly conducted by a Court of competent jurisdiction. From the material made available with this file, no case for interference in the impugned order is made out. The Appellants have failed to prove the fraud by the Respondent Bank.
6. Moreover, after the dismissal of application under section 12(2), Code of Civil Procedure, 1908 (C.P.C.), the Appeal (F.A.O. No,46/2017) filed by the Appellants before the Hon'ble Division Bench of this Court was withdrawn in order to file objection petition before the Banking Court, as such the judgment and decree had attained finality and cannot be now agitated. The contention of the Appellants to this extent has badly failed.
7. We, therefore, agree with the findings of the Banking Court which rightly dismissed the objection petition filed by the Appellants and do not see any illegality or perversity in the impugned order which has been passed strictly in accordance with law, as such does not warrant any interference by us. Consequently, the Appeal in hand, being devoid of any merit, is hereby dismissed.