MUHAMMAD RAZA QURESHI, J. Through this Judgment we intend to decide Execution First Appeals bearing Nos.83 of 2016, 15 of 2017, 16 of 2017, 17 of 2017, 32065 of 2021 and 32320 of 2021 as all these Appeals emanate from same execution proceedings and question the rejection of respective Objection Petitions filed by the Appellants in proceedings before the learned Banking Court-I, Faisalabad (hereinafter referred to as the ("learned Executing Court").
2. Through their respective Objection Petitions and now through these Appeals auction proceedings are, inter alia, challenged on the grounds that property admeasuring 08 Kanals 08 Marlas situated in Square No.38 Khewat No.833, Khatoni No.1445, situated at Chak No.223 RB Tehsil and District Faisalabad was auctioned for an amount of Rs.410,000/- for realization of Judgment and Decree in the sum of Rs.277,158/- by the learned Executing Court. It is alarming for this Court that commercial land having approximately 100 shops constructed on it comprising of 08 Kanals 08 Marlas (168 Marlas) were sold for Rs.410,000/- i.e. at the rate of Rs.2,440'- per Marla.
3. Through Execution First Appeal bearing No.83 of 2016 the Judgment Debtors, Travel International Limited and Haji Muhammad Yaqoob (hereinafter referred to as the ("Appellants in EFA No.83") have, inter alia, challenged Impugned Crder dated 01.12.2015 as well as auction proceedings dated 20.12.2005 and entire subsequent proceedings including the confirmation of sale through Order dated 24.01.2006 and direction for issuance of sale certificate through Order dated 21.02.2006 and consequent mutation in favour of Auction Purchaser, Sajid Mehmood Khan (hereinafter referred to as the ("Impugned Order in EFA No.83").
4. Through EFAs Nos.15, 16 and 17 of 2017 Muhammad Suleman, Muhammad Younis, Muhammad Ajmal and Razia Bibi Appellants of referred EFAs respectively (hereinafter referred to as the ("Appellants in EFAs of 2017") have, inter alia challenged the Orders dated 14.12.2016 (hereinafter referred to as the ("Impugned Orders in EFAs of 2017") passed by the learned Executing Court.
These EFAs also challenge the auction proceedings conducted by the learned Executing Court being fraudulent, unlawful and illegal.
5. Through EFAs Nos.32065 of 2021 and 32320 of 2021 respective Appellants Iram Waqar and Waqar Haider (hereinafter referred to as the ("Appellants in EFAs of 2021") have challenged the Orders dated 12.04.2021 and 18.05.2021 dismissing the Objection Petitions filed by the Appellants in EFAs of 2021 by the learned Executing Court (hereinafter referred to as the ("Impugned Order in EFAs of 2021").
6. It is pertinent to mention here that the Impugned Orders in EFAs of 2017 and EFAs of 2021 are similar in nature and accordingly will be decided by this common Judgment.
7. The facts leading to these Appeals are that pursuant to an alleged default committed by the Appellants in EFA No.83 of 2016 in the year 2000 Habib Bank Limited, Aram Bagh Branch, Karachi (hereinafter referred to as the ("HBL") instituted a Suit bearing No.149 of 2000 which was subsequently numbered as 16/2000 seeking recovery of an amount of Rs.1,466,166.49 before the learned Banking Court-IV, Karachi. Since the Appellants in EFA No.83 were not served, as a consequence thereof the quit filed by HBL was decreed ex parte by the learned Banking Court, Karachi through Judgment and Decree dated 31.08.2000 in the sum of Rs.277158/- alongwith mark up till realization along with costs.
8. Consequently, HBL being decree holder filed Execution Petition bearing No.54/2000 before learned Executing Court at Karachi. Since the subject matter property of Execution Petition as well as these Appeals was mortgaged in favour of HBL and situated in Faisalabad, therefore, the same was transmitted through a precept before the learned Executing Court.
9. Upon receipt of the precept the learned Executing Court in terms of Order XXI, Rule 66, C.P.C. issued notices to the Judgment Debtors/Appellants in EFA No.83 of 2016 at the same address provided by the HBL in Suit. Since the notices could not be served upon the Appellants in EFA No.83 of 2016 the auction of the subject matter property was ordered by the learned Executing Court on 15.03.2005.
10. It appears from the auction schedule that the realizable amount pursuant to Judgment and Decree was mentioned as Rs.277,158/- along with mark up and costs and reserve price was fixed as Rs.400,000/- for the two properties; first admeasuring 08 Kanals 08 Marlas situated in Square No.38, Khewat No.833, Khatoni No.1445 situated in Chak No.223 RB Tehsil and District Faisalabad alongwith constructions and second land admeasuring 08 Kanals 08 Marlas situated in Square No.38, Khewat No.1223, Khatoni No.2231 situated in Chak No.223 RB Tehsil and District Faisalabad along with constructions thereon. The auction for subject matter property No.1 was conducted on 20.12.2005 and consequently, the mortgaged property was auctioned for Rs.410,000/-.
11. The Appellants in EFA No.83 of 2016 on acquiring knowledge of proceedings on 20.05.2006 instantly appointed an Attorney and initiated proceedings seeking setting aside of ex parte Judgment and Decree before the learned Banking Court IV, Karachi and simultaneously filed the Objection Petition before the learned Executing Court on 24.05.2006. The learned Executing Court at Karachi dismissed the Application of the Appellants of EFA No.83 of 2016 through its Order dated 23.06.2006.
12.. The said Order was assailed by the Appellants before the Hon'ble Sindh High Court at Karachi through Appeal bearing No.51 of 2006. It is pertinent to mention here that on account of institution of Appeal by the Appellants the learned Executing Court on the Objection Petition adjourned the proceedings sine. die based on the rule of propriety.
13.The Appeal filed by the Appellants before Hon'ble Sindh High Court at Karachi was allowed on 04.03.2009 and the ex parte Judgment and Decree passed by the learned Banking Court-IV, Karachi was accordingly set aside. We have observed that the reason for setting aside ex parte Judgment and Decree pre vailed with the Hon'ble Sindh High Court at Karachi was that the Appellants were not served properly and HBL despite having knowledge and correspondence with the Appellants at their addresses in Jeddah had filed the Suit with the addresses of the Appellants at Karachi.
14. Upon setting aside of Judgment and Decree the Appellants approached the Bank i.e. HBL for settlement of their liability and accordingly paid to the bank an amount of Rs.658,623/-. Upon receipt of settlement of amount the 11BL redeemed the mortgaged properties on 06.07.2009 through It Redemption Letter only issued by HBL, Circular Road Branch, Faisalabad. The learned Banking Court-IV, Karachi consequently dismissed the Suit proceedings pending before it through remand Order hiving become infructuous and forwarded an Order to the learned Executing Court before whom the execution proceeding were pending pursuant to a precept issued by the Court at Karachi.
15. Since the auction had taken place on 20.12.2005 and subsequently the sale was confirmed and accordingly sale certificate was issued, the Respondent No.2 Sajjad Muhammad Khan, the Auction Purchaser challenged the Judgment dated 04.03.2009 passed by the Hon'ble Sindh High Court at Karachi, before the august Supreme Court of Pakistan through Civil Petition No.844 of 2009 and august Supreme Court of Pakistan through its Order dated 20.07.2009 dismissed the said Petition.
The operative part of the Order passed by the august Supreme Court of Pakistan is reproduced hereunder:- "It is submitted by the learned counsel for the petitioner that the petitioner is bona fide purchaser for value and in the circumstances, the learned Banking Court correctly dismissed the application of respondent No.1 under section 12 of the above Ordinance, 2001 for setting aside the ex parte judgment and decree dated 31.08.2000 because in the meanwhile the mortgaged property had already been auctioned in favour of the petitioner and sale proceedings had been confirmed by the Banking Court at Faisalabad. We find no force in the arguments of the learned counsel for the petitioner. The Hon'ble Judges of the High Court of Sindh, Karachi have given valid and cogent reasons for allowing the appeal of the judgment debtor. The same are based on the case-law discussed in the impugned judgment which is a settled law and need not be repeated. The auction of the mortgaged property was the result of the ex-parte judgment and decree and once the said ex-parte judgment and decree had been set aside, the legal consequences had to follow.
We do not want to make any further comment on the rights of the petitioner lest it prejudice his case before the Banking Court because while High the impugned judgment the Hon'ble Judges of the High Court have made observations in the last paragraph of the said judgment permitting the concerned parties to approach the Banking Court, before whom the recovery suit stands revived, with their respective further pleas with regard to their respective rights, which may be involved in the suit as well as with regard to the property mortgaged which has been purchased by the petitioner in the auction in view of above mentioned, this Petition is dismissed with an observation that the right of the Petitioner claiming as a bona fide auction purchaser, stranger to the Suit may also be considered by the Banking court, while deciding the Suit, if the Petitioner approaches it, in accordance with law. Leave is accordingly refused."
16. Pursuant to the direction of august Supreme Court of Pakistan the Respondent No.2, Auction Purchaser approached the learned Banking Court, Karachi for setting aside this Order dated 19.06.2009 under section 12(2), C.P.C. Since the suit had become infructuous upon payment of decretal amount by the Appellants to the HBL, therefore, the learned Banking Court dismissed the Application of the Auction Purchaser.
17. Upon said dismissal the Respondent No.2 filed an Appeal bearing No.36 of 2010 before the Hon'ble Sindh High Court at Karachi and the same was allowed pursuant to Judgment dated 19.11.2011.
18. The Appellants being aggrieved by the Judgment passed by the Hon'ble Sindh High Court at Karachi approached the august Supreme Court of Pakistan through Civil Appeal No.1192 of 2011. The august Supreme Court of Pakistan pursuant to its Order dated 05.10.2015 disposed of the said Appeal through the following Order:- "During the hearing of arguments of the learned ASC for the appellant, it has been brought to our notice that on 24.05.2006, appellant has filed objection petition before the Banking Court, praying for setting aside the auction proceedings in favour of Respondent No.5 held on 20.12.2005, which is still pending adjudication before the Banking Court No. 1, Faisalabad.
2. This being the position, with the consent of the learned ASCs for the parties, this Civil Appeal is disposed off with the observation that the Banking Court,, Faisalabad shall expeditiously hear and decide the Objection Petition dated 24.05.2006 filed by the appellant, without being influenced by any observation made by the High Court in the impugned order, preferably within three months. It may be clarified that the order of setting aside the ex-parte judgment and decree in the suit will not affect the merits of the case of the auction purchaser/Respondents. "
19. Pursuant to Order passed by august Supreme Court of Pakistan the Objection Petitions filed by the Appellants were taken up by the learned Executing Court on 01.12.2015 and through the Impugned Order Objection Petition filed by the Appellants was dismissed being barred by time.
20. It has been argued on behalf of the Appellants in EFA No.83 of 2016 that while passing the Impugned Order and dismissing the Objection Petition filed by the Appellants the learned Executing Court has acted arbitrarily, illegally and unlawfully and consequently has committed material illegality. According to learned counsel for the Appellants the Objection Petition has been dismissed summarily without adverting to the fact that gross violation of Order XXI, Rules 54, 66 and 67, C.P.C. were committed by the learned Executing Court as the Appellants never received notices of the proceedings pending before the learned Executing Court.
The Decree Holder Bank despite having knowledge that the Appellants were no more residing at their addresses at Karachi and Bank itself was exchanging correspondence with the Appellants and their addresses in Jeddah, the notices were never served at the correct addresses and the whole proceedings before learned Executing Court were sham and tainted.
Especially, on identical grounds the Hon'ble Sindh High Court at Karachi had dismissed the ex parte Judgment and Decree passed by learned Banking Court-IV, Karachi. It has also been argued before us that the mortgaged property was sold at a throwaway price and it was obligation of learned Banking Court to identify even though the Appellants were not present before the learned Banking Court that a prime commercial property admeasuring 168 Marlas was sold at the rate of Rs.2,440/- per Marla.
Additionally, it was argued before us that even the sale was confirmed and sale certificate was issued in absence of the Appellants, therefore; the limitation for the provision of Order XXI, Rule 90, C.P.C. cannot come in the way of the Appellants as the Appellants cannot suffer on account of an act of the Court particularly where the provision of law was ignored and mandate of right to access to justice and fair trial was denied to the Appellants. Since the auction proceedings were conducted in absence of the Appellants and were challenged being bogus and fraudulent the Objection Petition filed by the Appellants could not have been dismissed being time barred.
According to learned counsel for the Appellants the Impugned Order is illegal and suffers from material irregularities, therefore, is liable to be set aside.
21. In EFAs Nos.15 to 17 of 2017 it has been argued before us that the Appellants in EFAs Nos.15 to 17 of 2017 were owners of 04 Marlas 51/2 Sersai through registered gift deed bearing No.9607/1 dated 21.12.1994 registered with the office of Sub Registrar, Urban-II, Faisalabad vide Mutation No.15876.
Subsequently, the Appellant in EFA No.15/2017 also purchased land admeasuring 2 Marlas 5 Sersai in the subject matter property vide registered sale deed bearing document No.3527 dated 16.03.2004 having Mutation No.23750 and sale deed dated 07.06.2005 having Mutation No.25265.
The Appellants approached the Halqa Patwari to obtain 'fard' when they were informed that pursuant to Order of Banking Court the mutations in favour of Appellants have been cancelled.
Appellants inunediately approached the learned Executing Court and learnt that through bogus and fraudulent subject matter auction proceedings the shops of the Appellants have been sold at a throwaway price.
The Appellants forthwith filed respective Objection Petitions and learned Executing Court illegally dismissed the same filed by the Appellants on 09.06.2006 through the Impugned Order dated 14.12.2016. It has been argued before us that the Appellants are the bona fide purchasers of the property which was purchased by them through registered instruments much prior to even holding of the auction proceedings and learned Executing Court illegally and unlawfully dismissed the same summarily. The learned counsel for the Appellants has argued that the whole auction proceedings are bogus, fraudulent and sham as the subject-matter property has been sold at a throwaway price.
In EFA No.16 of 2017 it has been argued before us that the Appellant is owner of shop admeasuring 1 Marla 04 Sersai situated in the subject matter property and purchased the same through the registered sale deed dated 26.02.2005. The said registered sale deed is duly registered with Sub Registrar Urban-II, Faisalabad and in this regard mutation bearing No.24632 was also recorded in favour of the Appellant and the Appellant along with others learnt from Halqa Patwari about the impugned auction.
In EPA No.17 of 2017 while challenging the impugned auction proceedings and rejection of Objection Petition it has been argued before us that the Appellants are owners of shops admeasuring 02 Marlas and 08 Sersai and 02 Marlas and 71/2 Sersai respectively and they became owners through registered sale deed bearing document No.9685 dated 26.11.1996 and sale deed bearing No.10379 dated 08.06.2002 and are seriously effected through the impugned auction and the Impugned Order.
22. In EFAs of 2021 it has been argued before us that the Appellants are owners of land admeasuring 07 Marlas 08 Sersai in the subject matter property and purchased the same for a consideration of Rs.896,000/- through registered sale deed dated 08.03.2006 duly executed and attested by Sub Registrar Urban-II, Faisalabad and since then Appellants are owners in possession of total 02 Kanals 01 Marla and 08 Sersai and their lands were never mortgaged with the Bank. It has been argued before us that the Appellants obtained knowledge when warrant of possession was issued. However, pursuant to their Objection Petition their warrants of attachment were directed to remain suspended and learned Executing Court instead of directing demarcation of the property summarily rejected the Objection Petition filed by the Appellants without determining that the Appellants had a valid title. The Appellants in EFAs of 2021 also argued before us that the auction proceedings are illegal, fraudulent and bogus and lands of the Appellants had been sold at a throwaway price.
23. On behalf of Respondent Bank, HBL it has been argued before us that there is nothing left to be decided. The subject matter property has been auctioned. The Bank has received the settlement amount from the Judgment Debtors and their properties have been redeemed, therefore, effectively there is nothing outstanding to be decided and adjudicated by this Court.
24. On behalf of Respondent No.2 Auction Purchaser it has been argued vehemently that the Impugned Orders have been rightly and lawfully passed and the Objection Petitions were validly dismissed by the learned Executing Court. According to learned counsel for the Auction Purchaser the auction purchaser is a bona fide purchaser for consideration who pursuant to auction notice purchased the subject matter property. Being a successful bidder a sale for the property was confirmed by the learned Banking Court and the sale certificate was accordingly issued by the learned Executing Court. According to learned counsel the learned Executing Court has become functus officio and there was nothing left to be decided by the learned Executing Court.
Learned counsel has also argued that subsequent to the auction proceedings any settlement of the Judgment Debtors/Appellants in EFA No.83 of 2016 with the Bank is immaterial and irrelevant as valuable rights have been created in favour of the Respondent No.2 being auction purchaser and the only option left with the Appellants is to receive the auction consideration from the learned Executing Court. The learned Banking Court had rightly dismissed the Objection Petition being barred by time as the same was filed after 04 months of issuance of sale certificate by the learned Executing Court. Learned counsel has argued that subsequent settlement between the Decree Holder and the Judgment Debtor cannot affect the rights of an auction purchaser.
25. We have heard learned counsel for the parties and have minutely examined the voluminous record in all the cases.
26. Upon perusal of the Impugned Order through which the Objection Petition filed by the Appellants in EFA No.83 of 2016 was dismissed, it appears that learned Executing Court dismissed the Application of the Appellants on the basis that the Objection Petition filed by the Appellants was barred by time, therefore, it is imperative to first evaluate and identify whether the Objection Petition filed by the Appellants was time barred or not. In case upon analysis of legal as well as factual position we reach to the conclusion that the learned Executing Court reached to a right conclusion then obviously door to enter the instant proceedings stands closed.
27. The pivotal aspect in the matter is to determine whether the Objection Petition filed by the Appellants was actually time barred or not?
28. It is most fundamental principle that upon receipt of a precept from the learned Banking Court, Karachi the learned Executing Court was under legal obligation to issue notices to the Judgment Debtors/Appellants in EFA No.83 of 2016. It appears from the record that the notices were issued to the Appellants at an address provided by the Bank and the same remained unserved at Karachi.
The question arises whether the Bank was directed to provide a substituted address or whether the provisions of Order V CPC were complied with or not.
29. The Judgment and Decree pending realization before the learned Executing Court was ex parte.
It is abundantly established from the record annexed before us which demonstrates that the Decree Holder Bank was in close liaison with the Appellants through various correspondences at P.O. Box No.9209, Jeddah 21413, K.S.A. So the Bank was throughout aware of the correct address of the Appellants.
30. The same fact ultimately prevailed with the Hon'ble Sindh High Court at Karachi who set aside the Judgment and Decree passed by the learned Banking Court. Instead of dismissing the Objection Petition summarily had this aspect been analyzed and evaluated by the learned Executing Court the rights and interests of all the parties could have been protected.
There is no cudgel to the legal position that `debtor seeks the creditor' but this cannot be stretched to the detriment of the Appellants for the obvious reason that they had not lost their whereabouts and the Bank as well as the Appellants were in contact with each other at the address of Kingdom of Saudi Arabia. The principle could be applied where the Appellants had lost their whereabouts. In the instant case the Bank was in liaison with the Appellants and kept on pressing its demands and also apprising the Appellants with the defaults under the various finance facilities. The moment the Appellants prima facie established that the Bank was aware of their foreign address, the Appellants stood absolved of their obligation. In such a case the debtors/Appellants shall rather be deemed to have chased the creditor Bank. This legal aspect has already been thrashed out by this Court in PLD 1993 Lahore 706 titled "Bri Retd. Mazhar-ul-Haq and another v. Muslim Commercial Bank Limited and another,
31. Be that as it may, at the time of deciding the Objection Petition it was cogently established and became "crystal clear through the Judgment passed by the Hon'ble Sindh High Court that the Appellants were not residing at the addresses provided by the Bank and the address at Jeddah was known to the Bank. The learned Executing Court was under a legal obligation to identify through recording of evidence whether notices under Order XXI, Rule 66, C.P.C, were withheld fraudulently or not. Because if it is proved that the Bank despite having knowledge of the new address of the Appellants withheld the information from the learned Executing Court then whole superstructure for sale would fall. To reach our finding this Court derives wisdom from the Judgment of this Court referred supra in the case of Brig. (Retd.) Mazhar-ul-Haq wherein it is held:- "A fraud is a multidimensional concept. Broadly speaking, it is a deceitful act which exposes someone to actual loss or risk of possible loss. An active concealment of fact by anyone having knowledge of the same is another facet of the fraud. A distinction has to be drawn between mere suspicion and the actual commission of fraud. It is not easy to unearth a fraud because a person who embarks upon such an exercise usually defaces all traces leading to his deceitful act. Law does not provide a particular quantum of evidence for establishing a fraud. It is for the Court called upon to decide such an issue to be satisfied by the material brought before it, as to the practicing of fraud, on it or on one of the litigating parties by the other. From evidential point of view, a finding of fraud is an inference arising in relation to certain facts established on the record.
But in order to determine whether the appellants have succeeded in establishing the allegation of fraud, the effect of the facts proved on the record, must be assessed in totality. The material on the record shall have to be evaluated in the light of these accepted principles. "
Upon careful and minute examination of the record we irresistibly gain a prima facie impression that on question of fraud and concealment the Appellants' contentions are entitled to some weight as the fraud vitiates most solemn proceedings. The facts as well as the Judgment by Hon'ble Sindh High Court at Karachi exhibits sufficient preponderance of probability in favour of the Appellants.
The learned Executing Court should have also not shut its eyes on all these issues and was under an obligation to decide the Objection Petition after recording of evidence. The summary conclusion does not mean that right to access to justice and fair trial is altered and sacrificed.
32. Under applicable provisions of Order XXI, Rule 90, C.P.C. wherein the immovable property has been sold in execution of a Decree the Decree Holder or any person entitled to share in a ratable distribution of assets or whose interests are effected by sale may apply to the Court to set aside the sale on the ground of materially irregular or fraud in publishing or conducting it. This provision of Rule 90, C.P.C. is subject to two provisos provided at the foot of the provision.
For an aggrieved person to challenge the sale of a property through public auction is governed by provisions of Article 166 of the Limitation Act, 1908 which provides a period of 30 days of limitation from sale. In the instant case it has been noticed that sale of the property of the subject matter property took place on 20.12.2005 whereas the sale was confirmed and declared absolute on 24.01.2006 whereas the sale certificate was directed to be issued in favour of Respondent No.2 being Auction Purchaser on 21.02.2006, therefore, in terms of Article 166 the Objection Petition was to be filed by the present Appellants in the month of January, 2006.
33. In view of clear position of law the period of 30 days is meant for an aggrieved person falling under provision of Order XXI, Rule 90. C.P.C., who has knowledge of sale or holding public auction, Section 18 of the Limitation Act, 1908 provides that where a party is kept away from the knowledge of their right to see or file their Application because of some fraud or concealment the time shall be computed from the date of knowledge or discovery of fraud. This obviously cannot be even conceived that someone may seek remand of order emanating from the proceedings to which he had no knowledge. It, thus, leads to a conclusion that when the Judgment Debtor is kept away from the proceedings against him such an ex parte decree, subsequent auction proceedings and confirmation of sale, the limitation would commence from the date of knowledge of the fraud or proceedings.
34. In the facts and circumstances of the instant case admittedly the Appellants filed their Objection Petition on 24.05.2006 on the premise that the Appellants were residing in Jeddah and they had, no information about the ex parte Judgment passed against them and likewise of the execution proceedings or pendency of proceedings under the precept issued by the learned Executing Court, Karachi. As already observed above we have examined from the record that the Appellants have placed various documents duly addressed by the HBL to the Appellants at their address in Jeddah meaning thereby it was well within the knowledge of the Bank that Appellants at all the relevant (hoes were residing in Jeddah. It appears from the record that they simultaneously filed an Application before learned Banking Court at Karachi under section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and learned Banking Court pursuant to Order dated 23.06.2006 dismissed the Application of the Appellants. However, the ground prevailed with the learned Division Bench of the Hon'ble Sindh High Court at Karachi who while setting aside the ex parte Judgment and Decree held that the Appellants had proved that they were not served as neither notice was properly issued for service upon them nor they were ever served with the notice of the Suit. Consequently, the ex parte Judgment arid Decree was set aside. We consider that in the facts and circumstances of the case the Appellants had already established before the Hon'ble Sindh High Court that HBL/Decree Holder was aware of their addresses at P.O. Box No.9209, Jeddah 21413 Saudi Arabia. Therefore, it is established that Appellants had no knowledge of the pendency or conducting of auction proceedings of their mortgaged property.
35. In our tentative opinion it appears that Article 166 will be inapplicable in the facts and circumstances of the case and consequently period for filing of Objection Petition within 30 days is inapplicable on the Appellants and their plea and allegation of fraud in conducting and holding the subject matter auction proceedings and challenge in respect thereof fall under the residuary provision of Article 181 of the Limitation Act, 1908 for which the period of limitation has been prescribed as three (03) years. Consequently, it appears ex facie that the learned Banking Court has wrongly declared the Objection Petition filed by the Appellants as barred by time.
36. In the facts and circumstances, the judicial Orders, the facts and nature of fraud alleged necessitated that instead of dismissing the Objection Petition/Application of the Appellants summarily, the learned Executing Court should have framed the issues. Reliance in this respect is placed upon PLD 2003 SC 500 titled "Mir Wali Khan and another v. Manage Agricultural Development Bank of Pakistan and another."
37. Since the Hon'ble Sindh High Court at Karachi had already declared that Bank was aware of the actual addresses of the Appellants at Jeddah and as a consequence thereof set aside the Judgment and Decree. The learned Executing Court should have applied its judicial mind as the subject matter executing proceedings were actually never in the knowledge of the Appellants. It leads to irresistible conclusion that on the face of it the fundamental requirements of Order XXI, Rule 66, C.P.C. were never complied with and the Appellants were never granted their right to access to justice and fair trial as envisaged under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. In view of law laid down by this Court in PLD 2009 Lahore 552 if the fundamental requirements including compliance of Order XXI, Rule 66, C.P.C. are not met with the question arises whether the proceedings before learned Executing Court could have even sustained.
38. The next glaring aspect in the matter remains to yet consider that albeit the Appellants were not present before the learned Executing Court it was still an obligation of the learned Executing Court to determine the reserve price according to criteria of applicable provisions of law and dicta laid down by the Hon'ble Superior Courts of the Country. It has been noticed by us with great pain that 168 Marlas of land was sold in auction proceedings in just a paltry sum of Rs.410,000/- which comes to Rs.2,440/- per Marla.
It appears from the Notification bearing No.408-M/HRC dated 16.03.2006 issued by District Officer (Revenue), Faisalabad annexed with the instant Appeal that the applicable D.C rate prevalent at the time of auction for residential area was Rs.58,000/- per Marla and for commercial property Rs.
135,000/- per Marla. The subject matter property was sold even far less than the Deputy Commissioner (D.C.) value. Calculating the rate applying D.C rate for residential property comes to Rs.9,744,000/- and if the rate for commercial property is applied the auctioned property was worth Rs.22,680,000/- whereas the subject matter property comprising of almost 100 shops as per D.C value, was sold for Rs.410,000/- for realization of Judgment and Decree of Rs.277,158/-. There was a huge gulf between the value represented by the auction price and the real market value and there is no plausible or reasonable explanation for such difference. Reliance in this regard is made to the case reported as 2019 SCMR 321 titled "Muhammad Khalil v. Messrs Faisal M.B. Corporation and others."
39. We are therefore, in no manner of doubt that the land in question was indeed sold at a throwaway price and ex facie causing substantial injury and loss to the Judgment Debtors. This seems to be a classic case of Order XXI, Rule 90, C.P.C. The learned Executing Court should have considered this aspect of the matter even in absence of the Appellants.
40. It appears from the Impugned Order also that argument of the Decree Holder Bank prevailed over the learned Executing Court without adverting to the fact that Bank's stakes were no more involved in the facts and circumstances. HBL on the one hand got the valuable property auctioned at a paltry amount and on the other hand it received the settlement amount from the Judgment Debtors in year 2009 and consequently not only withdrew its Suit but also withdrew the main execution petition pending before the learned Banking Court at Karachi.
We hold that learned Executing Court in the facts and circumstances of the case instead of dismissing the Objection Petitions summarily should have framed issues and allowed parties to lead evidence in the matters.
41. The Impugned Orders in EFAs of 2017 also reflects that the Objection Petitions in these cases were even also dismissed summarily. Out of 03 EFAs of 2017 for the properties involved were claimed to have been purchased even before passing of Judgment and Decree the Appellants in these cases were obviously not parties to the execution proceedings and, therefore, were not in a position to challenge the same. The determination of their rights could not have been undertaken in a slipshod manner. It appears that the Impugned Order in EFAs of 2017 was passed in even ignorance of Order dated 05.10.2015 passed by the august Supreme Court of Pakistan in Civil Appeal No.1192 of 2011 wherein the learned Executing Court was specifically directed to decide the Objection Petitions without being influenced by the Judgment dated 19.11.2011 passed by the Hon'ble Sindh High Court at Karachi.
42. The Impugned Orders passed in EFAs of 2021 also reflect the same flaws as learned Executing Court in undue haste summarily dismissed the Objection Petitions on the sole ground that the Appellants shall approach proper forum for seeking partition of the property. It was specifically pleaded by the Objection Petitioners in EFAs of 2021 that their portions of land have been sold without the same being mortgaged with the Bank. This was the question, which squarely fell within the jurisdiction and domain of learned Executing Court as if Appellants had a bona fide claim and their properties were claimed to have been illegally sold. The question was ought to have been decided by the learned Executing Court after giving its findings on the question of law as well as facts.
43. Upon examination of the legal as well as factual position in the facts and circumstances of the ease we are convinced that the Impugned Orders dismissing the Objection Petitions in all EFAs cannot sustain in the eyes of law. Consequently, the same are set aside. In the light of Mir Wali Khan's case referred supra (PLD 2003 SC 500), the Objection Petitions filed by the Appellants will be deemed to be pending before the learned Executing Court who shall frame issues with respect to the Objection Petitions and decide the same after recording of evidence strictly in accordance with law within a period of 04 months from the receipt of certified copy of this Judgment and determine the questions including but not limited to whether the mandatory requirement of Order XXI, Rule 66, C.P.C., were met with; whether the Appellants in EFA No.83 of 2016 were duly served; whether the case of all Appellants fell under Articles 166 or Article 181 of Limitation Act, 1908; whether the criteria for determining the reserve price was followed and lastly in facts and circumstances of the case the Respondent No.2 can seek protection under the principles applicable to a bona fide purchaser in public auction.
All these questions will have a material bearing to determine whether a fraud has been committed in the instant case or not or whether a substantial injury was caused to the Judgment Debtors as well as all the Appellants in the facts and circumstances of each case.
44. Before parting with this Judgment it is directed that the conclusions arrived at in this Judgment are tentative in nature and learned Executing Court while framing issues and determining the fate of the parties shall decide the matter strictly in accordance with law and facts without getting prejudiced or influenced by the Judgment passed by us.
In terms of paragraph 43 of this Judgment the Appeals are allowed.