NADEEM AKHTAR, J. -- This appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001, ('the Ordinance') is directed against the order passed on 14.11.2015 by learned Banking Court-I Sukkur in Execution Application No,38/2011, whereby the application filed by the appellant/judgment debtor/ mortgagor under Order XXI, Rule 85, C.P.C. in the said execution application was dismissed on the grounds that the objection raised therein had already been decided vide order dated 28.10.2015 and that he had not come to the Court with clean hands.
2. The main questions involved in this appeal are (i) whether sale of immovable properties in execution proceedings could be confirmed and sale certificates could be issued by the learned Executing Court in favour of bidders who had failed to deposit the initial 25% amount of their bids on the date of the auction and had again failed to deposit the remaining 75% of the bid amount within fifteen days of the auction; (ii) whether, without notice to the judgment debtor/mortgagor and without hearing him, learned Executing Court was justified in allowing a bidder to complete the payment of initial 25% of the bid amount after several days of the auction in violation of Rule 84 of Order XXI, C.P.C.; (iii) whether, without notice to the judgment debtor/mortgagor and without hearing him, learned Executing Court was justified in allowing the bidders to deposit the remaining 75% of their bid amounts after four (04) months of the auction and after three and a half (3-1/2) months of expiration of fifteen (15) days stipulated in the sale proclamation for such deposit in violation of Rule 85 of Order XXI, C.P.C.; (iv) whether application for setting aside the sale filed by the objector/judgment debtor/mortgagor was not maintainable due to non-deposit of 20% of the sale proceeds by him in terms of Rule 90 of Order XXI, C.P.C.; and (v) whether the impugned order of dismissal of such application filed by the objector/judgment debtor/mortgagor passed by the learned Executing Court, being clearly an erroneous and non-speaking order, is sustainable in law.
3. Relevant facts of the case are that respondent No,1 Askari Commercial Bank Limited filed Suit No,53/2010 against the appellant and nine others before the learned Banking Court for recovery of Rs,18,702,831.34, which was decreed vide judgment and decree dated 26.03.2011 and 28.03.2011, respectively. By order dated 10.05.2011, the learned Banking Court converted the Suit into Execution Application under section 19 of the Ordinance and directed respondent No,1/decree holder to submit details of mortgaged and hypothecated assets of the judgment debtors. In pursuance of the order passed on 20.04.2015 by the learned Banking/Executing Court, sale proclamation for sale of the mortgaged properties was issued on 07.05.2015, whereafter the learned Executing Court directed its Nazir to proceed with the auction of mortgaged properties on 30.06.2015. Accordingly, notice for open public auction of the said properties was published in local newspapers. As per condition No, 3 of the sale proclamation, the successful bidder was required to deposit 25% of the bid amount immediately through a pay order with the Nazir, and as per condition No,4 he was required to deposit the balance 75% of the bid amount in Court within fifteen (15) days from the date of auction. Auction was held by the Nazir on 30.06.2015 in respect of immovable property No,1145 situated at Hindu Mohalla Piryaloi and immovable properties Nos,3327/1 and B-3327/2 measuring 736 square feet situated at Mochi Bazaar Sukkur. Thereafter, a report was submitted by the Nazir wherein it was stated by him that one Ghansham Das son of Lado Mal was declared as the highest bidder of property No, 1145, who deposited 25% amount of his bid on the same day through a pay order. Regarding properties Nos, 3327/1 and B-3327/2, it was stated by the Nazir that one Jay Ram Das son of Samano Mal was declared as the highest bidder who failed to deposit 25% (Rs,2,400,000.00) of the bid amount on the same day as he deposited only Rs,1,500,000.00 on the same day and the remaining amount of Rs,9,000,000.00 was deposited by him on 02.07.2015. It was specifically pointed out by the Nazir in his above report that there was violation of the terms and conditions of auction sale by the said Jay Ram Das as he had failed to deposit the entire 25% of the bid amount on the date of auction.
4. On the above mentioned report submitted by the Nazir, an order was passed on 07.10.2015 by the learned Executing Court whereby notice was ordered to be issued to bidder Jay Ram Das to explain why 25% amount deposited by him should not be forfeited as he had violated the terms and conditions of auction. Through the aforesaid order, the respondent No,1-bank/decree holder was also directed to explain why it should not be penalized for not depositing the documents of mortgaged properties ordered by the Court. Record shows that the bidder Jay Ram Das and the Branch Manager and Credit Manager of the respondent No,1-bank submitted their explanation on 28.10.2015 on which an order was passed by the learned Executing Court on 28.10.2015 allowing both the bidders to deposit the remaining 75% amount of their bids within three (03) days. In pursuance of the above mentioned order dated 28.10.2015, both the bidders deposited the remaining 75% amount of their respective bids on 30.10.2015.
5. On 20.08.2015, the appellant/judgment debtor filed an application under section 151, C.P.C. for setting aside the auction of all the above mentioned three properties on the grounds that one of the bidders had failed to deposit the entire 25% amount of his bid on the date of auction and both the bidders had failed to deposit the balance 75% amounts of their bids within fifteen (15) days from the date of auction as per the terms and conditions of auction. This application was dismissed by the learned Executing Court vide order dated 28 10.2015 on the sole ground that it was not filed "under proper provisions of law". Thereafter, the appellant filed an application under Order XXI, Rule 85, C.P.C. read with section 151, C.P.C. before the learned Executing Court praying that the 25% of the bid amounts deposited by the bidders be forfeited on the above mentioned grounds, and also on the ground that the order passed by the learned Executing Court on 28.10.2015 allowing the bidders to deposit the remaining 75% amount within three (03) days was illegal as the learned Executing Court had no power to grant such extension. This application filed by the appellant was also dismissed by the learned Executing Court through impugned order dated 14.11.2015 by holding that the objection raised therein had already been decided vide order dated 28.10.2015 and that the appellant had not come to Court with clean hands.
6. Immediately after dismissing the appellant's above application on 14.11.2015, two other orders were also passed by the learned Executing Court on the same day i.e. 14.11.2015, whereby the auction of above properties held on 30.06.2015 was confirmed and the application filed by the bidders/auction purchasers for issuance of sale certificates in respect of the said properties in their favour was allowed.
7. Mr. Ashok Kumar K. Jamba, learned counsel for the appellant contended that the bidders were obliged to adhere to the terms and conditions of the auction sale, but they had miserably failed in doing so as the bidder Jay Ram Das did not deposit the entire 25% amount of his bid on the date of auction and both the bidders also failed to deposit the remaining 75% within fifteen (15) days from the date of auction. He submitted that the learned Executing Court had no power to grant extension to the bidders or to accept the amounts deposited by them in violation of the terms and conditions of the auction. It was urged by him that the purported auction is void ab initio in view of the above violation committed by the bidders, and as such further proceedings by the learned Executing Court in respect of these properties for confirming the sale thereof and issuance of the sale certificate in respect thereof in favour of the bidders, are also void. It was further urged that the bidders as well as the learned Executing Court violated not only the terms and conditions of the auction, but also mandatory provisions of Rules 84, 85 and 86 of Order XXI, C.P.C. In support of his above submissions, learned counsel relied upon (1) Afzal Maqsood Butt v. Banking Court No, 2, Lahore and 8 others PLD 2005 SC 470, (2) Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt.
Ltd. through Chief Executive and others 2011 CLD 1517, (3) Jhanq Textile Industries (Pvt.) Limited through Chief Executive and 6 others v. Pakistan Industrial Credit and Investment Corporation Ltd. and 3 others 2013 CLD 387, (4) Mansoor Khalil v. Muhammad Moizuddin and another 2015 CLD 1535 and (5) National Bank of Pakistan v. Messrs Nasir Industries, Karachi and others 1982 CLC 388.
8. Mr. Muhammad Shamim Khan, learned counsel for the respondent No,1- bank, contended that the objections raised by the appellant before the learned Executing Court were misconceived and not maintainable as the learned Executing Court had the power to grant extension to the bidders and to accept remaining amounts of their bids. He further contended that had the bidders not deposited the remaining amounts of their bids, the appellant may have been justified in objecting, but since this is not the case and the entire bid amount has been deposited by the bidders, the application filed by the appellant was rightly rejected and auction was rightly confirmed by the learned Executing Court. -He also contended that the matter of auction of mortgaged properties, deposit of bid amounts by the bidders, confirmation of auction sale and issuance of sale certificates in their favour, is a past and closed transaction, which cannot be questioned or reopened at this belated stage. It was urged that the decree holder bank should not be deprived of the fruits of the decree that was passed in its favour as far back as 28.03.2011.
9. At the very outset, Mr. Muhammad Habib Khan, learned counsel for bidders/auction purchasers (respondents 12 and 13), conceded that both the bidders had failed to deposit the entire 25% amount of their bids on the date of auction and they had also failed to deposit the remaining 75% within fifteen (15) days from the date of auction. He, however, contended that respondents 12 and 13/bidders were allowed by the learned Executing Court to deposit the balance 75% amount of their bids within three (03) days, which order was complied with by them in letter and spirit although the said period of three days granted to them was unreasonable. He further contended that the remaining 75% amount was arranged by the bidders by selling their goods and borrowing money from other sources. It was urged that the said respondents/bidders have acquired valuable vested rights, title and interest in the subject properties which cannot be taken away lightly, and in case any order is passed against them, they shall be seriously prejudiced. It was further urged that the application filed by the appellant was not maintainable as the same was filed by him without depositing 20% of the auction money. In addition to the above, he adopted the arguments advanced by learned counsel for the respondent No,1-bank, and in support of his above submissions, he relied upon (1) Muhammad Moizuddin and another v. Mansoor Khalil and another 2017 SCM R 1787, (2) Mujahid Kareem and others v. National Bank of Pakistan through Manager and others 2016 SCM R 66 = 2016 CLD 418, (3) Zakaria Ghani and 4 others v. Muhammad lkhlaq Memon and 8 others 2016 CLD 480 and (4) Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others v. Allied Bank of Pakistan and another 2014 SCM R 1662.
10. We have heard learned counsel for the appellant, the respondent No,1-bank and the bidders, and with their assistance we have carefully examined the material available on record, R&P called from the learned Executing Court and the law cited at the bar. Perusal of the sale proclamation shows that as per condition No,3 thereof, the successful bidder was required to deposit 25% of the bid amount immediately through a pay order with the Nazir, and as per condition No,4 thereof he was required to deposit the remaining 75% of the bid amount in Court within fifteen (15) days from the date of auction. The above stipulations were in accord with the following provisions of Rules 84(1) and 85 of the Code of Civil Procedure, 1908, which are mandatory in nature because of the word "shall" used therein: "84Deposit by purchaser and re-sale on default --
(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty five per cent on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property be re-sold.
(2)..................."
"85Time for payment in full of purchase-money -- The full payment of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property."
11.It is an admitted position that the subject properties were not sold by inviting sealed bids, but were sold through open public auction in execution proceedings in pursuance of sale proclamation published in newspapers under Order XXI, C.P.C. It is also an admitted position that the above mentioned terms and conditions of sale as well as mandatory provisions of Rules 84(1) and 85 of the Code of Civil Procedure, 1908, were violated by both the bidders as they failed to deposit the initial 25% amount of their bids on the date of auction, and they also failed to deposit the remaining 75% amount of their bids within fifteen (15) days from the date of auction. As noted above, an order was passed by the learned Executing Court on 28.10.2015 on the explanation submitted by the bidder Jay Ram Das and the officers of the respondent No,1-bank, Whereby not only bidder Jay Ram Das, but both the bidders were granted time of three (03) days to deposit the remaining 75% amount of their bids. The said order dated 28.10.2015 reads as under: "I have gone through the explanation/reply of Mr. Amir Shaikh, Branch Manager, and Mr. Aqeel Qazi, Credit Manager, and Mr. Jay Ram Das son of Samano Mal.
Looking to the reasons as submitted by the concerned and in the larger interest of justice the explanation/reply of the concerned parties is accepted.
The auction purchasers are directed to deposit remaining amount of 75% of bid within 3 days."
12.It may be noted that the above order dated 28.10.2015 was passed after about four (04) months of the auction held on 30.06.2015 and after about three and a half (3-1/2) months of the expiration of the period of fifteen days stipulated in the sale proclamation for deposit of the remaining 75% amount. The above order was a nullity; firstly, as the learned Executing Court had no authority to grant any such extension after expiration of the said period of fifteen days from the date of auction, and secondly, as the said order was passed without notice to the appellant/judgment debtor/mortgagor and without hearing him. This view expressed by us is fortified by the law laid down by the. Hon'ble Supreme Court in Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd. through Chief Executive and others, 2011 SCM R 1675 = 2011 CLD 1517, relied upon by learned counsel for the appellant. Paragraphs 12, 13, 16 and 17 of the above-cited authority, being extremely important and relevant for the purposes of the present appeal, are reproduced below for convenience and ready reference: "12. The next question before this Court is whether the executing Court while following the provisions of Order XXI, Rules 84 and 85 C.P.C., was competent to extend time beyond 15 days for deposit of balance 75% of the amount of the auction money. The answer in this behalf would be in negative. The time for deposit of amount is provided under Order XXI, Rule 85, C. P.C. Under Rule 85 an auction purchaser shall deposit 25% of the auction amount immediately on being declared as highest bidder and the balance amount of 75% shall be deposited within 15 days of the auction. In the present case, the sale was confirmed on 29-4-2002 on which date the appellant had deposited 25% of the auction amount. In terms of Order XXI, Rule 85, C.P.C., the appellant was required to deposit the balance amount of Rs,6.00 million by 13-5-2002. Admittedly, this amount was not deposited by the said date and record reveals that an application for extension of time was made by the appellant on 13-5-2002 and on 14-5-2002 an amount of 3.00 million was deposited and for the balance amount of 3 million further time of 10 days was sought. The appellant as has already been observed earlier has deposited Rs,19,93,750 on 29-4-2002, which was 25% of the auction price whereas Rs, 3.00 million was deposited on 14-5-2002 after lapse of 15 days, the stipulated time, and the remaining 3.00 million on 23-5-2002. The default in deposit of the balance amount was violative of the mandatory conditions provided under the proclamation, which language was borrowed from the mandatory provisions of Order XXI of the C.P.C. Failure to deposit the balance amount of 75% of auction money within 15 days by the appellant renders the sale/auction proceedings nullity. The language of Order XXI, Rules 84 and 85, C.P.C. are mandatory in nature. If the balance amount of auction price is not paid within the stipulated period of 15 days, the court has the discretion to forfeit the deposit and order re-sale of the property. In addition to forfeiture, the defaulted purchaser forfeits all claims to the property. The conditions contained in the proclamation provide all such details. It has provided that a party who is declared as highest bidder shall immediately deposit 25% of the sale price and remaining 75% of the sale price would be deposited within 15 days. Violation of these conditions would not empower the executing court to extend time for deposit of balance amount unilaterally."
"13. The appellant admittedly has violated the mandatory conditions and the contention of the learned counsel for the appellant that the court in its discretion can extend time to the appellant for deposit of balance amount of 75% of the sale price after the lapse of 15 days by virtue of subsection (2) of section 19 of the Ordinance, does not appeal to reason. The executing court can adopt any procedure for executing decree under banking law but this power of the court has a rider that it would be subject to the written request of the decree-holder, which request has never been made in the case in hand. The case in hand is fully covered by the judgment of this Court in the case of Afzal Maqsood Butt v. Banking Court No,2, Lahore and others reported as (PLD 2005 SC 470) wherein this court has held that non-payment of 75% balance auction amount within 15 days in violation of provisions of Order XXI, Rule 85, C.P.C. would render the sale nullity and the executing court is bound to order re-sale of the property in terms of Order XXI, Rule 86, C.P.C. Moreover, the case of the respondents is supported by the judgments of the Indian Supreme Court in the cases reported as Manual Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and others (AIR 1954 SC 349) and Balram son of Basha Ram v. Ilam Singh and others (AIR 1996 SC 278), wherein it has been held that provisions of Order XXI, Rules 84, 85 and 86, C.P.C. are mandatory in nature and violation of the same would render the sale nullity."
"16. The next issue is non-deposit of amount of 20% in terms of Order XXI, Rule 90, C.P.C. by the private respondents at the time of filing of the objections to the sale. The sale in favour of auction purchaser must reflect transparency. The objections raised by the private respondents were not only based on the quantum of reserved price, but were based on the issues which showed that the sale/auction proceedings were being conducted in the manner to extend favour to the appellant. All provisions of law including the provisions of Order XXI, Rule 90, C.P.C. are to be read with exception. Any law without exception is a bad law. In the case in hand, the appellant had taken his time to deposit the balance sale consideration in violation of the mandatory provisions of Order XXI, Rule 85, C.P.C. The belated application for extension in time for deposit of balance amount was wrongly entertained by the executing court that too without notice."
"17. In the face of the aforesaid illegalities coupled with the non-deposit of the balance sale amount of 75% within 15 days renders the sale culminating from such auction proceedings as nullity. The issue of non-deposit of amount of 20% by the private respondents in exceptional circumstances can be condoned when the auction has been conducted in deviation of the mandatory provisions of Order XXI, Rules 54(2), 69, 85 and 86, C.P.C. and the executing court, in law, has erroneously confirmed the sale. The object of deposit of 20% of amount by a person objecting to sale under Rule 90 of Order XXI is meant to ensure that the objections are made by bona fide person and the rule is not misused to frustrate the sale, however, it could not be applied to the advantage of the appellant to have premium over his default. ................
(Emphasis added)
13. We have seen that both the bidders had taken their time to deposit the initial 25% as well as the remaining 75% sale consideration in violation of the mandatory conditions stipulated in the sale proclamation and the mandatory provisions provided in Rules 84 and 85 of Order XXI, C.P.C. As held by the Hon'ble Supreme Court in Mst. Nadia Malik (supra), the learned Executing Court was not competent to grant any extension to the bidders unilaterally beyond fifteen days for depositing balance 75% of the auction money. Thus, the learned Executing Court not only illegally allowed such extension to the bidders that too without notice to the appellant/judgment debtor/ mortgagor, but also illegally accepted their belated payment. It is well-settled that provisions of Rules 84, 85 and 86 of Order XXI, C.P.C. are mandatory in nature and violation of the same particularly non-payment of 75% balance auction amount within fifteen days in violation of Rule 85, would render the sale nullity, and the Executing Court is bound to order re-sale of the property in terms of Rule 86 of Order XXI, C.P.C. In the present case, failure to deposit the balance 75% of auction money within fifteen days by the bidders had rendered the sale/auction proceedings nullity, and in view of such failure on their part, the Executing Court was required to forfeit their deposit and to order re-sale of the subject properties, in which case all claims of the defaulted purchasers/bidders in relation to the said properties were to be forfeited. In the above circumstances and in view of the law laid down by the Hon'ble Supreme Court in Mst. Nadia Malik (supra), the order dated 14.11.2015, whereby the impugned auction was confirmed and the application filed by the bidders for issuance of sale certificates in their favour was allowed, was also a nullity.
14.We have already held that mandatory provisions of Rules 84, 85 and 86 of Order XXI, C.P.C. were violated in the impugned auction proceedings which clearly reflect that undue advantage/favour was extended to the bidders for depositing the auction money as per their convenience. The contention of learned counsel for respondents 12 and 13/bidders that the appellant's objections were not maintainable as he had failed to deposit 20% of the purchase- money in Court, does not have any force as the question of non-deposit of such amount can be condoned in exceptional circumstances, as held in Mst. Nadia Malik (supra), when the auction has been conducted in a manner to extend favour to the bidder or in deviation of mandatory provisions of Rules 54(2), 69, 85 and/or 86 of Order XXI, C.P.C., and the Executing Court, in law, has erroneously confirmed the sale.
15.With due respect to learned counsel for respondents 12 and 13/bidders, the cases cited and relied upon by him are clearly distinguishable and have no bearing to the facts and circumstances of the case at hand. The said cases are briefly discussed below: A. In Muhammad Moizuddin (supra), mortgaged property was sold through auction by the financial institution under Section 15 of the Ordinance i,e, without intervention of the Banking Court, and the effect of declaration of section 15 of the Ordinance as ultra vires by the Hon'ble Supreme Court in National Bank of Pakistan and 117 others v. Saif Textile Mills Ltd. and another, PLD 2014 SC 283, and protection to all transactions with respect to sale of mortgaged property which had taken place and were finalized before such declaration by the High Court as "past and closed transactions", was discussed. Whereas, in the present case, the mortgaged properties were purportedly sold by the Executing Court itself through public auction in execution proceedings under Order XXI, C.P.C., and the question of protection of the purported sale as a past and closed transaction is not involved.
B. In Mujahid Kareem (supra), recovery Suit filed by the financial institution was not defended by the principal borrower which resulted into passing of an ex parte decree which was never challenged by anyone in any proceedings, and the guarantor never took any steps to satisfy the decree. Resultantly, the mortgaged property was sold in execution proceedings and the auction sale was challenged by the guarantor and not by the principal borrower. It was held that there was inordinate delay in challenging execution and auction proceedings despite having knowledge of the same, as decree was passed in the year 2001, but the guarantor deposited the decretal amount in the year 2009 much after the auction of mortgaged property, confirmation of its sale, registration of such sale in favour of the auction purchaser and handing over its possession to him.
In the instant case, the auction sale was challenged immediately by the appellant/principal borrower/mortgagor himself on the ground of gross violation of mandatory provisions of Rules 84 and 85 of Order XXI, C.P.C.
C.In Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. (supra), the highest bidder had deposited the entire auction amount within the stipulated time, and no inherent defect was found in the procedure adopted by the Banking Court. Whereas, in the present case it is an admitted position that the bidders had failed to deposit the initial 25% as well as the remaining 75% of the auction amount within the stipulated time, and there was inherent defect in the proceedings of auction sale as mandatory conditions stipulated in the sale proclamation and the mandatory provisions of Rules 84 and 85 of Order XXI, C.P.C. were violated by the bidders and the Executing Court.
D.In Zakaria Ghani (supra), sale of the mortgaged properties was held by the Banking Court by inviting sealed bids through advertisement in newspapers and not by open public auction in terms of Order XXI Rule 66, C.P.C. The main objections to the sale were that the properties were sold at a price which was completely out of proportion and out of line with the actual value; that in view of the initial order of the Banking Court to sell the properties through public auction in terms of Order XXI, Rule 66, C.P.C., the properties ought to have been sold in the said manner and it was not open to the Banking Court to subsequently invite tenders by means of sealed bids; that payment was made belatedly by the bidder; the bidder had withdrawn the money deposited in Court within sixty days and hence it was unfair to allow him the benefit of the sale in his favour; and, no reserve price was mentioned in the auction notice. It was held inter alia by the Hon'ble Supreme Court that the original Court order clearly stated that the sale was to be effected by means of sealed bids i,e, not a public auction after issuing advertisements in different newspapers; the Banking Court was entitled in terms of the then banking law applicable, and indeed, in terms of the present banking laws as well, to follow any procedure deemed appropriate by it; once an order had been passed by the Banking Court stipulating that the sale was to be made under the Code of Civil Procedure, 1908, it was open to the Court to switch over to any alternative procedure; the auction purchaser had filed an application within the stipulated period seeking vacant possession of the properties, which application was accompanied by copies of pay orders for the balance sale consideration showing that he had made financial arrangements for payment within the stipulated period; the objector had been served, but despite entering appearance he did not raise any objection whatsoever to the original order for sale of the property through sealed tenders or to the framing of four sale proclamations or at any later stage in the ensuing litigation all the way up to the Hon'ble Supreme Court; the judgment debtor had remained negligent as he had four opportunities to raise objection about the non-mentioning of the reserve price at the time of issuance of sale proclamations, but he failed to raise any such objection before the trial Court, the learned Division Bench of the High Court and the Hon'ble Supreme Court either in appeal or in the review; and, in such circumstances, there was no conceivable way by which the auction purchaser could be blamed for the act of the Court in not mentioning the reserve price. The review petition was disposed of by the Hon'ble Supreme Court in view of the above. In the present case, the impugned sale was conducted through open public auction in terms of Order XXI, Rule 66, C.P.C.; there was no issue/objection/dispute with regard to reserve price or the price at which the properties were sold; there was nothing on record before the Executing Court to establish that the bidders had actually arranged the entire purchase-money within the stipulated period; on the contrary, it is an admitted position that the bidders did not deposit the initial 25% as well as the remaining 75% sale consideration within the stipulated time; and, objections were filed by the appellant/judgment debtor/mortgagor promptly before the Executing Court and before confirmation of sale in favour of the bidders. Moreover, the main issue of gross violation of mandatory conditions stipulated in the sale proclamation and the mandatory provisions of Rules 84 and 85 of Order XXI, C.P.C. by the bidders and the Executing Court, was not involved in the above-cited case.
16.Record shows that by impugned order dated 14.11.2015 the application filed by the appellant for forfeiture of the bid amounts was dismissed by the learned Executing Court by holding that the objection raised therein had already been decided vide order dated 28.10.2015 and the appellant had not come to the Court with clean hands. The above ,ground for dismissal of this application was erroneous as the previous application filed by the appellant was dismissed vide order dated 28.10.2015 on the sole ground that it was not tiled "under proper provisions of law". Needless to say that the said previous application ought not to have been dismissed on such flimsy ground as the same could have been treated as an application under the relevant provision. Be that as it may, the previous application was not decided on merits, therefore, the subsequent application could not be dismissed either on such ground or on the ground that the appellant had not come to Court with clean hands. The Executing Court was duty-bound to decide the appellant's application/objections one way or the other on merits through a speaking order, and by not doing so, a grave illegality has been committed by the Executing Court. The impugned order which, on the face of it, is an erroneous and non-speaking order, is liable to be set aside on this ground alone.
17.We have already held that the order passed on 28.10.2015 whereby both the bidders were granted time of three (03) days to deposit the remaining 75% amount of their bids, as well as the order passed on 14.11.2015 whereby the impugned auction was confirmed and the application filed by the bidders for issuance of sale certificates in their favour was allowed, were nullity; and, that the impugned order dated 14.11.2015 dismissing the application filed by the appellant for forfeiture of the bid amounts, is liable to be set aside. Therefore, none of the above orders can be allowed to remain in the field. As a result of our above findings, all subsequent proceedings and actions taken in pursuance of the above orders are also liable to be set aside.
18.In view of the above discussion, the above mentioned order dated 28.10.2015 and the two orders dated 14.11.2015 passed by the learned Executing Court and the purported sale of the subject properties in favour of respondents 12 and 13/bidders, are hereby set aside. Learned Executing Court is directed to forfeit 5% of the amounts deposited by respondents 12 and 13/bidders and to re-sell/re-auction the subject properties strictly in accordance with law. This appeal is allowed in the above terms with costs.