This appeal in terms of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter to be referred as the "Ordinance") arising out of execution proceedings calls in question the vires of order dated 15.03.2022 whereby learned Judge Banking Court proceeded to accept the objection petition filed by the Respondents.
2. Facts of the case are that the Respondent No.4/Allied Bank Limited instituted a suit for recovery of outstanding principal amount of Rs.20 million along with mark-up which was decreed vide judgment dated 09.01.2002 by Banking Court No.1, Karachi. Thereafter, for satisfaction of decree, the Respondent No.4 submitted application for auction of mortgaged property i.e. land measuring 308 kanals and said decree was subsequently transferred to Banking Court at Rawalpindi on 02.08.2007. During execution proceedings, above said mortgaged property was put to auction on 15.02.2021 whereby the Appellant was declared as successful bidder. After submission of report of court auctioneer, the Respondents Nos.2a and 2b, claiming to be legal heirs of Abdul Rehman, filed their respective objection petitions however, objection petition filed by the Respondent No.2b under section 19(7) of the "Ordinance"; challenging the validity of auction proceeding, was withdrawn by her whereas objection petition filed by the Respondent No.2a under Order XXI, Rule 89 of the Code of Civil Procedure (V of 1908) (the "C.P.C.") was dismissed in terms of order dated 23.04.2021 being time barred. The said order was then challenged by aforesaid Respondents before this Court through separate appeals bearing F.A.Os. Nos. 67 of 2021 and 51 of 2021 while decree holder bank also challenged the same order through E.F.A. No.25 of 2021 to the extent of charging 14% mark-up upon principal outstanding amount. Above said appeals were decided through consolidated judgment dated 31.01.2022 (the "consolidated judgment") pursuant to which the impugned order dated 15.03.2022 was passed. Hence this appeal.
3. Learned counsel for the Appellant inter alia contends that the impugned order has been passed in utter disregard to the observations given in the "consolidated judgment"; that the conclusion drawn by the learned Judge Banking Court declaring the Respondents Nos.2a to 2f as legal heirs of Mian Abdul Rehman is contrary to record; that the learned Judge Banking Court should not have decided the matter during the pendency of CPLA No.323/2022 filed against the "consolidated judgment" pending before the Hon'ble Supreme Court of Pakistan; that while passing the impugned order, the learned Judge Banking Court has not taken into consideration the mandatory requirement of Order XXI, Rule 89 of the "C. P. C. ".
4. On the other hand, learned counsel for the Respondents controverted the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of appeal on the ground that there is no illegality or perversity in the impugned order which has rightly been passed.
5. Arguments heard. Record perused.
6. It evinces from the perusal of impugned order that the question of limitation, as agitated by the Appellant in this appeal as well as in his reply to application under Order XXI, Rule 89 of the "C.P.C." before the Banking Court, has already been settled in the "consolidated judgment" whereby it was observed that: "Admittedly, the auction in this case was held on 15.02.2021 and the application under Rule 89 of Order XXI of the Code was filed on 05.04.2021 whereas the "sale" was confirmed by the Banking Court on 23.04.2021. Learned counsel for respondents could not refer to any order passed by the learned Banking Court before 23.04.2021 whereby the bid of Raja Hafeez-ur-Rahman (respondent No.2) was expressly accepted by the Court. In the impugned order dated 23.04.2021, for the purpose of limitation, the learned Executing Court has held the "sale" in this case to have taken place on 15.02.2021 i.e. date of fall hammer and not acceptance of offer, which is contrary to the above mentioned legal position. Thus, following the law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Jawed and Muhammad Attique (supra), the F.A.O. No.51 of 2021 is hereby allowed in the terms that the impugned order dated 23.04.2021 whereby application of the appellant under Rule 89 of Order XXI of the Code was dismissed for being barred by limitation is set-aside as the period of 30 days limitation prescribed under Article 166 of the First Schedule to the Limitation Act, 1908 would run in this case from the date of sale i.e. 23.04.2021 and resultantly application of the appellant shall be deemed to be pending before the learned Banking Court, Rawalpindi to be decided on merit in accordance with law".
7. A specific ground of non-complying the directions given in the "consolidated judgment", is agitated before us by learned counsel for the Appellant. It is imperative to reproduce concluding paragraph of the "consolidated judgment" which reads as: "Resultantly, F.40 No.51 of 2021 is allowed in terms that the order dated 23.04.2021 is set aside for consideration and decision of Objection Petition filed by Mst. Ayesha Rehman under Rule 89 of Order XXI on merit and F.A.O. No.67 of 2021 is disposed of with the observation that the learned Banking Court shall consider if any material irregularity or fraud in the sale or auction proceedings has been established before confirmation of sale of the mortgaged property in question. E.F.A.
No.25 of 2021 is also allowed and the impugned order dated 23.04.2021 is hereby reversed and application of the respondent No.2e under section 47 of the Code shall be deemed to have been dismissed".
8. From the observation made in the "consolidated judgment", it is quite clear that order specific directions were given to the Banking Court to decide application under Order XXI, Rule 89 of the "C.P.C." on merit. The Banking Court in the impugned order has observed as under: "The petitioner has produced certain documents to prove that late Abdul Rehman was son of Jamal Din and not Sodagar as objected by the respondents. He has produced copy of mutation of inheritance of Jamal Din dated 20.07.1985 regarding agri land situated in revenue District Kasur and as per Pedigree table drawn on its back Jamal Din is recorded as son of Sodagar and name of the wife of Jamal Din is Sabira Bibi and Muhammad Abdullah, Abdul Rehman and Fazal Rehman are sons of Jamal Din. Then produced copy of jamu bandi 2019 according to which Abdul Rehman son of Jamal Din is recorded as owner of the said land through mutation of inheritance of his father. Copy of the jama bandi of year 2007-2008 show that on the death of Abdul Rehman his said property devolved upon the petitioner and aforesaid other legal heirs. Copy of judgment (produced) passed in declaratory suit titled Mst. Zarina Begum versus Public at large prove that petitioner is daughter of Abdul Rehman who died on 15.02.2017. Another copy of the judgment dated 14.06.2017 passed in the declaratory suit titled Mst. Zarina Begum v. NADRA prove that correct name of father of Abdul Rehman is Jamal Din and not Sodagar. Copy of judgment dated 06.03.2020 passed in declaratory suit titled Mst. Shagufta Abdul Rehman v. NADRA prove that correct name of the mother of Abdul Rehman is Sabira and not Hajira Bibi. Copy of the judgment dated 02.12.2020 passed in declaratory suit titled Mst. Shagufta Abdul Rehman v. Tehsildar Kasur prove that correct name of father of petitioner is Abdul Rehman Awan son of Jamal Din".
9. From the above observations, it is obvious that the Banking Court, decided the application under Order XXI, Rule 89 of the "C.P.C." as per directions given in the "consolidated judgment" keeping in view the declaratory suits decided in favour of the Respondents Nos.2a and 2b and other revenue record produced before it. It is settled preposition of law that presumption of correctness is attached to judicial proceedings, and strong and unimpeachable evidence is required to rebut such presumption. In the present case, the Appellant has not produced any cogent evidence to dislodge the said presumption.
10. So far as the objection of the Appellant with, regard to decision of application under section 47 of the "C.P.C." is concerned, we have noted application relevant thereto stands dismissed vide the "consolidated judgment" having later been assailed through C.P.L.A. No.323 of 2022 yet pending adjudication before the Hon'ble Supreme Court of Pakistan. As such, issue related to said application though is sub-judice before Hon'ble Supreme Court of Pakistan, but no stay order, has been issued in proceedings thereof hence, the argument of the Appellant that the Banking Court has not taken into consideration the tiling of C.P.L.A., does not carry weight.
11. Mere filing of CPLA cannot operate as a stay order against a decree or order. Reliance in said regard can easily be placed upon judgment is case titled "Messrs British Biscuits Company (Pvt.)
Limited v. Messrs Atlas Investment Bank Limited" (2005 SCMR 671) reading as follows: "3.... It is, however, to be noted that no stay order was granted by this Court, hence, the question of suspension of execution of proceedings does not arise. It is an admitted feature of the case that neither any stay order was granted by this Court nor the judgment impugned was suspended. ... "
12. It is held in "Maulvi Abdul Qayyu m v. Syed Ali Asghar Shah and 5 others" (1992 SCMR 241) reading as follows: "5.... Order XLI, rule 5, C.P.C., which provides that mere riling of an appeal does not operate as a stay of the decree appealed from. The Appellate Court, is, however, empowered to order the stay of the execution of such decree. ... It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified."
13. In another case, the Hon'ble Supreme Court of Pakistan in "H. M. Fazil Zaheer v. Kh. Abdul Hameed and others" (1983 SCMR 906) has held as under: "It is an elementary principle of law that mere filing of a revision petition or an appeal does not operate as a stay order. A prohibition or a restraint on the statutory powers cannot be inferred or implied but must be clearly expressed and communicated."
14. In another pronouncement reported in "Shah Wali v. Ghulam Din Alias Gaman and another"
(PLD 1966 Supreme Court 983) it has held that: "... It is well settled that the operation of a decree, passed by a Court of first instance is not automatically suspended, on the mere filing of an appeal therefrom. This is also clear from rule 5, Order XLI of the First Schedule to the Code of Civil Procedure, ...."
15. The learned Division Bench of this Court in the case titled "Ahmad Waqas and others v. Ishtiaq Ali and others" (PLD 2022 Lahore 313) has held that: "7. The appellants at the moment have no right whatsoever to retain their possession over the disputed property as required by Article 5(2) of the Constitution of Islamic Republic of Pakistan, 1973, which ordains that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. Moreover, admittedly no injunctive order has been issued by the Hon'ble Supreme Court of Pakistan in the appeal filed against the judgment of this Court dated 04.06.2015. In the dictum reported as H. M Fazil Zaheer v. Kh. Abdul Hameed and others (1983 SCMR 906), the Hon'ble Supreme Court of Pakistan has held that mere filing of appeal or revision does not operate as stay order and prohibition or restraint cannot be implied but must be clearly expressed and communicated. In the judgment reported as Messrs Agro Dairies (Pvt.) Limited through Director and 2 others v.
Messrs Agricultural Development Bank of Pakistan through Branch Manager and 03 others (2004 CLD 232) it has been observed that mere filing or pendency of petition/appeal before the Hon`ble Supreme Court does not operate as a stay or restraint order."
16. We, therefore, fully agree with the findings of the Banking Court and do not find any illegality in the impugned order which has been passed in consonance with the spirit of law, hence, does not call for interference by us.
17. In the above circumstances, this Appeal, being devoid of any merit, is hereby dismissed with no orders as to cost.