SH. AZMA T SAEED, J.---Through this judgment, it is proposed to decide titled Civil Petitions for Leave to Appeal, which are directed against a common judgment dated 06.06.2016, passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Execution First Appeals Nos, 880 and 896 of 2015, have been dismissed.
2. The brief facts necessary for adjudication of the /is at hand are that the Respondent Bank filed a Suit for Recovery , which was decreed and such judgment and decree admittedly attained finality . The execution proceedings commenced and during the course whereof, the properties of the judgment-debtors were directed to be auctioned. The present Petitioners are the judgment-debtors or successors-in-interest thereof.
3. Apparently ., 10 properties were directed to be put on auction. Such auction was purportedly held. Whereafter , Objection Petitions were filed by the judgment-debtors, which were dismisse d. Subsequently , the appellate jurisdiction of the learned Lahore High Court was invoked by filing Execution First Appeals Nos,.880 and 896 of 2015, which were dismissed vide impugned judgment dated 06.06.2016.
4. Out of the three instant Civil Petitions before us, one Civil Petition bearing No,3032-L of 2016 is barred by limitation and accompanied by an application for condonation of delay i,e, Civil Misc. Application No,3057 of 2016, while the other two Civil Petitions bearing Nos,2701-L and 2994-L of 2016 are within time. It is settled law that where an order or judgment is challenged through separate proceedings be it appeals or petitions, some of which are within time, while the others have been filed beyond the period of limitation, all such appeals or petitions ought to be decided on merit especially when an orders in one appeal or petition (within time) would apply to the other appeal or petition, which may be barred by limitation. Consequently , it is appropriate to decide all three Civil Petitions on merits.
5. The learned counsel for the Petitioners contends that the auctions in question were held in violation of die law and neither could be sustained nor could the objection petitions be dismissed for non-deposit of 20% of the decretal amount as the Objection Petition s have been filed not only under Order XXI, Rule 90, C.P.C. but also in terms of section 19, subsection (7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It is added that in terms of the Schedule, 10 properti es were to be auctioned at the sites at the same time by the same Court auctioneer , which was a physical impossibility thereby denuding the claim of the decree-holder Bank that any legal auction of all credibility took place. It is added that there are no bid sheets or other documents suggesting or confirming that the auction had taken place. The entire proceedings were fictitious and a sham. Learned counsel adds that the Court auctioneer continued to hold auction proceedings even after the auction price of some of the properties exceeded the decretal amount. Furthermore, the terms and conditions of the, auction are violated in as much as 25% of the amount of fered was not deposited on the fall of the hammer .
6 The learned counsel for the Respondent Bank as well as the auction purchasers controverted the contentions raised on behalf of the Petitioners by contending that since the mandatory provisions under Order XXI, Rule 90, C.P.C. requiring deposit of 20% of the decretal amount was not complied with, hence the Objection Petitions were correctly dismissed and no exception could be taken thereto and contentions of the Petitioners cannot be even considered as well as adjudicated upon. It is further contended that all 10 properties were enclosed approximately within a radius of one mile and, therefore, could be safely auctioned together at one place. It is also added that the terms and conditions were fixed by the Court and in the absence of challenge had attained finality , therefore, no grievance in this behalf, could be raised.
7. Heard. Available record perused.
8. The mainstay of the contentions of the learned counsel for the Respondent Bank and the auction purchaser is the alleged non-deposit of 20% of the decretal amount in terms of Order XXI, Rule 90, C.P.C. Such is also the primary basis of the impugned judgment dated 06.06.2016 of the learned High Court. Without dwelling further on this aspect of the matter , we are constrained to observe that there can be no escape from the fact that even in the absence of an Objection Petition, learne d Executing Court is not required to automatically confirm an auction mechanically and without application of mind by not even, considering the law applicable. Such is the law laid down by this Court in the case reported as National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another (PLD 2014 SC 283 ).
9. In the instant case, there is no denying of the fact that 10 separate properties were directed to be auctioned at the "sites" at the same time. As per the case of the Respondent Bank, the said properties are allegedly within one mile radius (this is disputed by the Petitio ners). Be that as it may, it is a. physical impossibility that an auction of 8 properties as alleged could be held at the same time at 8 different places even if the said properties were approximately within a radius of a mile. It appears that the auction was not held at a site in violation of the terms of the proclamation. Similarly , we have notic ed that there are no bid sheets available on the record, the same having not been prepared by the Court auctioneer . It is also not clear that 25% of the auction price of each of the said properties were deposited on the fall of the hammer . There is some reference of the subsequent deposit through encashment of cheques. In the aforesaid circumstances, it cannot be safely held that the properties were auctioned in accordance with the law, nor can it be held that such auction, with obvious legal flaws, could have been confirmed by the Court even if the Obje ction. Petition was not maintainable. It appears that the learned Courts below abdicated their jurisdiction and responsibility , in this behalf.
10. In view of the above, the titled. Civil Petitions are converted into appeals and allowed. The impugned judgment dated 06.06.2016 of the learned Lahore High Court as well as the judgment of the learned Execution Court dated 14.05.2015 are set aside. The auctions are set aside along with all ancillary actions . The sale price received by the Respondent Bank shall be refunded to the auction purchaser along with mark up at the rate of 5% per annum. The possession of the properties shall be taken over by the learned Banking Court from the auction purchaser and the properties shall be put to auction again and this time hopefully in accordance with the law .