C.M. No, 1/2017 Through this application the Applicant seeks restoration of the main petition which was dismissed due to non-prosecution vide order dated 14.03.2017. The application is supported by an affidavit, as such the same is allowed for the reasons stated therein. Resultantly, the main petition is restored to its original number and fixed for today. Learned counsel for the Petitioner advanced arguments on the main petition. Main Case JAWAD HASSAN, J.---Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has called in question the legality of auction dated 05.06.2008 and mutation No,882 dated 09.06.2008. He also sought setting aside of orders dated 08.09.2015 and 21.10.2015.
2. Brief facts of the case are that on default to repay the loan, the Respondent No,2 auctioned the property mortgaged by the Petitioner and got registered mutation dated 09.06.2008 in favour of the Respondent No,3. The Respondent No,2 filed application under Section 15(10) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance") for confirmation of accounts.
Whereas the Petitioner filed application under Section 15(11) of the Ordinance with interim relief and for setting aside the alleged auction dated 05.06.2008 which was dismissed due to non- prosecution on 07.06.2010. He filed another application for restoration of the main application which was also dismissed vide the impugned order. The Applicant also filed review application which too met to the same fate. The Petitioner through this petition has challenged the order dated 08.09.2015 through which not only his application for restoration of the main application was dismissed but also the main application too.
3. Learned counsel for the Petitioner inter alia submitted that the Banking Court has failed to appreciate the fact that the auction was conducted against the law; that the impugned order has been passed due to misreading and non-reading of material available on record; that the Respondent No,2 conducted the auction without adopting legal procedure; that if the impugned auction dated 05.06.2008 as well as order dated 08.09.2015 are not set aside the Petitioner shall suffer irreparable loss.
4. We have heard the arguments of the learned counsel for the Petitioner and perused the record.
5. The record reveals that the application filed by the Petitioner challenging the auction dated 05.06.2008 was dismissed due to non-prosecution vide order dated 07.06.2010 and he filed application for restoration of the main application. The impugned order through which the restoration application of the Petitioner was dealt with reveals that even after affording colossal opportunities to produce his counsel for arguments, the Petitioner remained failed. The Banking Court in the impugned order also observed that the auction proceedings were conducted in exercise of powers under section 15 of the Ordinance which has been declared ultra vires the Constitution, as such the said auction proceedings have become past and closed transaction therefore, the Banking Court has no jurisdiction to reopen the matter. Infact the auction proceedings were conducted in the year 2008 (on 05.06.2008) under Section 15 of the Ordinance whereas the said Section was declared ultra vires the Constitution on 10th of December 2013 by the Hon'ble Supreme Court of Pakistan. As such, the Banking Court has rightly observed that auction dated 05.06.2008 has become a past and closed transaction and cannot be resurrected.
6. We, therefore, fully agree with the findings of the Banking Court who passed the impugned order in accordance with law and therefore, does not call for any interference by us under the Constitutional jurisdiction of this Court.
7. In view of the above situation, the instant petition is dismissed.