SULTAN TANVIR AHMAD, J. Present Execution First Appeal, filed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), is directed against judgment dated 08.10.2021 passed by learned Banking Court-I, Lahore (the "Banking Court"), whereby, the objection petition dated 15.09.2020, filed by the appellants under Order XXI, Rule 89 of the Code of Civil Procedure, 1908 (the "Code ), has been dismissed.
2. Facts, necessary for the disposal of the present appeal are, that respondent No.1 filed suit for recovery under section 9 of the Ordinance, which was decreed against the predecessor of the appellants namely Aziz Ahmed (hereinafter called as the "deceased judgment-debtor ) and for the satisfaction of the said decree, property measuring 01-kanal, residential house bearing No. 41- A, College Block, Allama Iqbal Town, Lahore (hereinafter called as the "property ) was auctioned on 20.08.2014. The auction was assailed by the deceased judgment-debtor on the grounds of irregularities, fraud as well as allegation of auction at throwaway price etc., under Order XXI Rule 90 of the Code, which was dismissed by the learned Banking Court on 14.11.2014. This order of dismissal of objection petition filed by the deceased judgment-debtor was assailed but it was maintained up to the Honourable Supreme Court of Pakistan. Upon the dismissal of the objection petition, filed under Order XXI, Rule 90 of the Code, on 08.09.2020 the learned Banking Court confirmed the auction which took place on 20.08.2014, in terms of Order XXI, Rule 92(1) of the Code. After confirmation of the sale, the appellants, being legal representatives of the deceased judgment- debtor filed objections under Order XXI, Rule 89 of the Code on 14.09.2020. The objections were dismissed vide the judgment dated 08.10.2021. Aggrieved from the same, present appeal has been filed.
3. Mr. Muhammad Shahzad Shaukat, learned Senior, ASC and Mr. Nadeem Irshad, learned counsel for the appellants have submitted that the learned Banking Court should have issued notices to the legal representatives of the deceased judgment-debtor i.e. the appellants in terms of Order XXI, Rule 22 of the Code and the proceedings including the confirmation of the sale have been conducted in violation of the said rule as well as section 50 of the Code. They have added that upon the death of judgment-debtor, the property devolved upon the legal representatives, who became "persons having interest in the property" in terms of Order XXI, Rule 89 of the Code, thus, confirmation of auction without notice is void; that since the estate devolved upon the legal representatives, therefore, they were not bound by the defence taken by the deceased judgment- debtor and upon death, the legal representatives have rightly filed the objections in terms of Order XXI, Rule 89 of the Code. In this regard, they have relied upon the judgments from various jurisdiction, including the judgments in the cases titled "Muhammad Khalil Versus Messrs Faisal M.B. Corporation and Others" (2019 SCMR 321) and "Minor Smt. Shanti Devi Versus Khandubala Dasi and Ors" (AIR 1961 Cal 336).
4. Conversely, Mr. Ashar Elahi, learned counsel for the respondent No.2 has vehemently opposed this appeal and he has relied upon section 146 of the Code, while submitting that the appellants stepped into the position of the deceased judgment-debtor and they are not entitled to make application under Order XXI, Rule 89 of the Code as their predecessor could not do the same, after dismissal of the application under Order XXI, Rule 90 of the Code.
5. We have heard the arguments and perused the record with the able assistance of learned counsel for the parties.
6. The auction in the present case took place on 20.08.2014, which was assailed by the deceased judgment- debtor by filing objections on the grounds of irregularities, fraud and the allegation of auction of the property at throwaway price. The same was dismissed by the learned Banking Court on 14.11.2014 and the deceased judgment-debtor kept maintaining his stance of fraud and irregularities up to the Honourable Supreme Court of Pakistan, where this stance was rejected in the life time of the deceased judgment-debtor. The position is that the deceased judgment-debtor in his life time exercised his right to file objection in terms of Order XXI, Rule 90 of the Code instead of seeking his remedy under Order XXI, Rule 89 of the Code. He never opted to withdraw such objection to avail remedy under Order XXI, Rule 89 of the Code, either.
7. It is manifest from the language of Order XXI, Rule 89 of the Code that any person owning a property or holding any interest of title, acquired before the sale, can apply under the said rule but subject to the condition that if he has applied for setting aside the sale under Order XXI, Rule 90 of the Code, he must withdraw the same before he seeks relief under Order XXI, Rule 89 of the Code.
Here, it is appropriate to reproduce Order XXI, Rule 89 of the Code, which is as follows:- "89. Application to set aside sale on deposit.---
(1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court,-- (a). for payment to the purchaser, a sum equal to five percent of the purchase-money, and (b). for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
(2). Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3). Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale".
(Emphasis supplied)
8. The deceased judgment-debtor opted not to withdraw from his stance of fraud and irregularity up till the Honourable Supreme Court of Pakistan. In this situation, the learned Banking Court passed the order of confirming the sale in terms of Order XXI, Rule 92 of the Code that reads as follows:- "92. Sale when to become absolute or be set aside.---
(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.
(2). Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby".
(3). XXX.
(Emphasis supplied)
9. It is clear from wording of above provisions of law that if a person fails to file application under Order XXI, Rule 89 of the Code and his application under Order XXI, Rule 90 of the Code is also dismissed, the Court does not have choice but to proceed to pass an order confirming the sale, which then becomes absolute. Reference can be made to the cases titled "Zakaria Ghani and 4 Others Versus Muhammad Ikhlaq Memon and 8 Others" (2016 CLD 480), "Mir Wali Khan and another Versus Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another" (PLD 2003 Supreme Court 500), "Muhammad Hussain Versus Industrial Development Bank of Pakistan, Hyderabad and another" (2014 MLD 192) and "Janak Raj Versus Gurdial Singh and another" (1967 AIR (SC) 608).
10. In "Zakaria Ghani and 4 Others" case (supra), the Honourable Supreme Court of Pakistan has observed that where application under Order XXI, Rule 90 or 89 of the Code is not made or such application is rejected, it becomes mandatory for the Court to make an order of confirmation. The Honourable Supreme Court of Pakistan has also held that if judgment-debtor chooses not to take advantage of the opportunity provided to him by the law (i.e. failure to file application under above said rules), the matter comes to an end. It will be advantageous to reproduce the relevant extracts of "Zakaria Ghani and 4 Others" case (supra), as follows:- "....The above is further clarified by the provisions of Order XXI, Rule 92, C.P.C. which lays down explicitly the consequences of a failure to make an application under Order XXI, Rule 89 or Order XXI, Rule 90. The said provision states that where no such application has been made under the above mentioned rules, or where such application has been made and disallowed, it becomes mandatory on the court to make an order confirming the sale and thereupon the sale becomes absolute. These provisions leave no doubt for any ambiguity in the matter. The plaintiff has not merely a legal right flowing from the contract between the parties but a statutory right crystallized in the form of a decree passed by a court of competent jurisdiction. The law has laid down the only methods available in order to challenge such a crystallized right vesting in a plaintiff. If a judgment debtor chooses not to take advantage of the opportunities afforded to him by the law the matter comes to an end".
(Underlining is added)
11. The application under Order XXI, Rule 90 of the Code was dismissed in the life time of the deceased judgment-debtor, who failed to exercise his right under Order XXI, Rule 89 of the Code, within permissible time after the sale that took place on 20.08.2014 by depositing the amount as stipulated in Order XXI, Rule 89(1) (a) and (b) read with Order XXI Rule 92(2) of the Code, thus, the deceased judgment-debtor was left with no interest that could be affected or which could have been passed on to the legal representatives.
12. The deceased judgment-debtor after the above situation, if alive, could not have done anything, therefore, interest of justice is not likely to be defeated by not giving fresh notices to the legal representatives. The similar question was raised before the learned High Court of Andhra Pradesh in case titled "R.Rajamma Versus Avula Saraswathamma and Others"(1973 AIR (A.P.)132) and somewhat the similar conclusion was drawn and it was observed that filing of application under Order XXI, Rule 89 or Rule 90 of the Code and getting them disallowed, thus, exhausting practically all the remedies available to deceased judgment-debtor, therefore, left little or nothing for any one, much less for his legal representatives to agitate, thereafter.
13. It will also be beneficial to reproduce the following conclusion in "R.Rajamma" case (supra):- "36. It may be noted that the provision of law as found adumbrated in sub-rule (1) of Rule 92 also does not provide for bringing on record the legal representatives of the judgment-debtor, who dies between the date of sale and the date of confirmation. It may also be noted that the duty imposed upon the Court, under the aforesaid provision, is couched in a mandatory form, leaving little or no discretion with the Court, excepting that of making an order of confirmation, provided the conditions, mentioned therein, are found fulfilled and the conditions in this case, as contemplated under sub-rule (1) of rule 92, as already noted above, were found fulfilled in the sense that the applications made by the judgment-debtor, under Rules 89 and 90 of Order 21, Civil Procedure Code were disallowed by the Court, thus leaving the Court free to discharge its duty.
That factual situation was not disputed by the counsel appearing for the respondents. We may also notice, in this connection, that the provision as is contained in the proviso appended to sub- mile (2) of Rule 92, requiring the issuance of notices to the persons affected, is found designedly absent in the case obtaining under sub-rule (1) of Rule 92, the reason being obvious. While setting aside the sale if there are certain persons that are likely to be affected, notices shall have to be given under sub-rule (2) of Rule 92, but, in a case where all the remedies available under Rule 89, 90 and 91 by an application filed within thirty days after the sale, were found to have been exhausted and when such applications under Rules 89, 90 and 91 were disallowed, there is no one, who can be said to have had his interest affected as to be given any notice. We may also note, in this connection, that for getting an order of confirmation passed under sub-rule (1) of Rule 92 no application by any person need be filed to the Court, nor the provisions of the Limitation Act as applicable to application under rules 89, 90 or 91 are attracted to a case contemplated under sub-rule (1) of Rule 92. On account of the omission, under sub-rule (1) of Rule (92), to provide for the issuance of a notice to the persons concerned, as provided for in the proviso appended to sub-rule (2) it may safely be assumed that the object of the Legislature in enacting a provision like sub-rule (1) of Rule 92 is to render the sale as confirmed, under that Rule, subject to the fulfillment of the conditions mentioned therein immune from any attack from any quarter, as, otherwise, the possibility of securing the maximum price in the sale of immovable property effected in execution of a decree, will be slender.
(Emphasis supplied)
14. As far as reliance of Mr. Shahzad Shoukat, learned Senior ASC on "Minor Smt. Shanti case (supra) is concerned, suffice to say that the judgment-debtor in the said case died after proclamation of the sale but before the sale / auction took place, thus, that case is clearly distinguishable from the case in hand. Likewise, the other case laws, including "Muhammad Khalil" case (supra) relied by Mr. Shahzad Shoukat are of no help to the appellants. In "Muhammad Khalil" case (supra) the Honourable Supreme Court of Pakistan reached to the conclusion in favour of the judgment-debtor on the basis that the property was sold for less than the market value, whereas, in the present case the learned Banking Court has already rejected the claim of the deceased judgment-debtor vide order dated 14.11.2014 and the rejection order in the application under Order XXI, Rule 90 of the Code attained finality up to the level of the Honourable Supreme Court of Pakistan.
15. In view of the above, we are of the considered view that the learned Banking Court has rightly dismissed the objection petition. Consequently, the present appeal is dismissed with no order as to costs.