SULTAN TANVIR AHMAD, J:-The petitioner has sought to set-aside auction conducted on 02.12.2024 by the learned Banking Court-V, Lahore (the 'Banking Court') for satisfaction of the judgment and decree dated 04.03.2022 passed under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the 'Ordinance').
2. Ch. Ghulam Murtaza, learned counsel for the petitioner has stated that the pre-requisites of Order XXI rule 90 of the Code of Civil Procedure-1908 (CPC) have been ignored by the learned Banking Court; that no mala fide on the part of the petitioner is involved so that they could have been directed by the learned Banking Court to deposit 50% of the sale amount or to furnish security.
3. Conversely, Ms. Manahil Khan, learned Advocate for respondent No. 2 / auction purchaser has vehemently opposed this petition. She has contended that the orders passed by the learned Banking Court are in accordance with law; that the petitioner himself resiled from his stance regarding the alleged infirmities in the auction and made a request to the learned Banking Court through an application dated 12.02.2025, whereby, he requested to consider the earlier application under Order XXI rule 89 of CPC but then he failed to deposit the sale proceed along with 5% of the purchase money. In course of arguments, she has relied upon various judgments including cases titled "House Building Finance Corporation through Branch Manager versus Abdul Sattar Anjum" (2022 CLD 1555), "Chaudhary Ghulam Hussain and another versus Messrs Saudi Pak Commercial Bank Limited, Lahore and another" (2025 SCMR 298) and "Ghulam Rasool Bhatti versus Judge Banking Court-II, Lahore and 4 others" (2007 CLD 1578).
4. Mr. Ashar Elahi, learned counsel for the decree-holder / respondent No. 1 has stated that this petition and the applications before the learned Banking Court have been filed in utter bad faith to deprive the decree-holder from the benefits of the decree which was passed more than two years ago.
5. We have heard the arguments and perused the record with able assistance of the learned counsel for the parties.
6. It is not denied by anyone in attendance that no challenge was made by the petitioner during entire proceeding to any order fixing the reserve price, terms of auction or its schedule, until the auction is conducted. It is noticed that the petitioner was present before the learned Banking Court on 10.10.2024 and different other dates when these proceedings were being conducted. After the auction an application dated 13.12.2024 (the 'first application') was filed under various provisions of CPC as well as section 19(7) of the Ordinance. On 15.01.2025 the learned Banking Court refused to treat the same as an application filed under Order XXI rule 89 of CPC and directed the petitioner to deposit 50% of the sale amount or security. Upon which another miscellaneous application dated 12.02.2025 (the 'second application') under sections 151 and 152 of CPC was instituted with the prayer to consider the first application under Order XXI rule 89 of CPC and permitting the petitioner to deposit total decretal amount along with 5% of the purchase money. The second application was turned down in view of the fact that the petitioner has failed to deposit required amount, as per Order XXI rule 89 of CPC, within the permissible time period.
7. In case titled "Mst. Anwar Sultana through L.Rs. versus Bank Al-Falah Ltd. and others" (2014 SCMR 1222), while considering the same question, the Supreme Court of Pakistan has entranced that such deposit is a condition precedent to entertain the application under rule 89 ibid and the Court cannot extend time for deposit of amount under section 148 of CPC. The said rule is intended to confer right upon the judgment-debtor even after the property is sold to satisfy the decree and to compensate the auction purchaser by paying 5% of the purchase money, however, the provision does not approve defeating the claim of auction purchaser, unless the condition is fulfilled. Same view is adopted in case titled "Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and other versus Allied Bank of Pakistan and another" (2014 SCMR 1662). Paragraph No.10 of the said judgment reads as under:- "10. The appellants have filed objection petition apparently on the ground that auction proceedings were irregular and the Banking Court has failed to follow the procedure provided under Order XXI, .P. . The appellants themselves moved the Banking Court under section 19(7) of the Ordinance and have not made an application under Order XXI, Rule 89 or 90, C.P.C. Even if the objection petition of the appellants is treated as an Application under Order XXI, Rule 89 or 90, C.P.C., then the said Rules mandate that the objector should deposit the amounts mentioned therein along with the application. In absence of the deposit, as mandated by the Rules, the application and or objections cannot be entertained by a Banking Court. In the case in hand, the appellants have not deposited any of the amounts required under the aforesaid Rules, therefore, the objections were rightly rejected by the Banking Court."
(Underlining is added)
8. The auction took place on 02.12.2024. The petitioner has not requested even before this Court for permission to deposit the required amount. The second application to treat the first application under Order XXI rule 89 of CPC was also filed at the belated stage. It appears that the prayer of permitting to deposit the required amount is made merely to derail the execution proceeding.
9. Learned counsel for the petitioner has stated that the learned Banking Court should have treated the first application under Order XXI rule 89 of CPC, at its own. He stated that the provision of Order XXI rule 89 of CPC was invoked in the first application. A careful examination of the first application reveals that in the entire application no stipulation or request is made which can qualify to treat the application under Order XXI rule 89 of CPC. We have no doubt in our mind that merely captioning an application or a document is not always material rather it is the instrument, application or the document which determines its nature. Reference if required can be made to the case titled "Asif Raza Mir versus Muhammad Khurshid Khan" (2011 SCMR 1917). Needless to reiterate that the first application was not accompanied by any banking instruments or request to deposit the amount under Order XXI rule 89 of CPC.
10. Next are the questions formulated by petitioner-side regarding justification to direct the petitioner to deposit the amount in terms of second proviso to rule 90 of Order XXI of CPC as well as some alleged conflict between Order XXI rule 90 of CPC and section 19(7) of the Ordinance. These aspects have already been considered by a four member Bench of the Honourable Supreme Court of Pakistan in case titled "Mst. Samrana Nawaz and others versus MCB Bank Ltd. and others"
(PLD 2024 Supreme Court 873), wherein both questions have already been answered. The purpose of the referred proviso is to discourage the frivolous objections. It has been ruled that the Court cannot proceed to consider and adjudicate upon merits of an application, under Order XXI rule 90 of CPC, until the deposit of amount or security and when the applicant fails to make deposit, despite specific direction in this regard, the Court is to dismiss the application without proceeding to consider and adjudicate upon its merit. Paragraph No. 6 of the judgment reads as under:- "With this understanding of the keywords used therein, we find that the second proviso stipulates that upon filing the application to set aside the sale, the court will direct the applicant to deposit an amount not exceeding twenty per cent of the sum realised at the sale or furnish security for that amount, and provide the applicant with an opportunity to fulfill this requirement. Until the applicant deposits the amount or furnishes the security, the court cannot proceed to consider and adjudicate upon the merits of the application. Only when the applicant complies with this requirement within the allowed time, can the court proceed to consider the application on its merits. If the applicant fails to do so, the court is to dismiss the application without proceeding to consider and adjudicate upon its merits."
(Emphasis Supplied)
11. Here we want to revert to facts of the case. The direction to make deposit under Order XXI rule 90 of CPC was not challenged before the learned Banking Court or this Court at the relevant time. No request was even made to reduce the amount directed to be deposited or the security. Rather the petitioner proceeded to file second application for treating the first application under Order XXI rule 89 of CPC.
12. We have noticed that the petitioner has repeatedly changed his stance. Firstly, he objected the conduct of the auction. Secondly, he made request to treat his application under Order XXI rule 89 of CPC. Now he has once again resiled from the same and through this petition has raised challenge to the terms of the auction. These frequent shifts and developments are hit by principle of approbate and reprobate. The petitioner cannot be permitted to adopt one stance and to resile from the same before the learned fora below and then to file the present petition before this Court permitting him once again to take a somersault. Reliance can be placed on law laid down by the Honourable Supreme Court of Pakistan in the cases titled "Faqir Muhammad versus Fazal Rahman and 13 others" (1970 SCMR 662), "Federation of Pakistan versus Amir Hamza" (2001 SCMR 1959) and "Overseas Pakistanis Foundation and others versus Sqn. Ldr. (Retd) Syed Mukhtar Ali Shah and another" (2007 SCMR 569).
13. Ch. Ghulam Murtaza, learned counsel for the petitioner has stated that the learned Banking Court was obliged to treat the objections of the petitioner under section 19(7) of the Ordinance in summary manner, independent of the provisions of Order XXI rule 90 of CPC. This argument has correctly been answered by Ms. Manahil Khan, learned counsel for respondent No. 2, by referring to paragraph No. 13 of Mst. Samrana Nawaz case (supra). The relevant extract of which is as under:- "As evident from the above analysis, clauses (a) and (b) of Section 19(7) of the Ordinance are not comprehensive provisions regarding objections to the sale of property in the execution of a decree. They do not specify who can make objections or the grounds on which objections can be made. Therefore, these clauses cannot function independently of Rule 90 of Order XXI, C.P.C., regarding objections to the sale of property in the execution of a decree. It is worth noting that since Section 141, C.P.C., does not apply to applications under Rule 90 of Order XXI, C.P.C., the procedure for investigating objections made under this rule is also summary, as provided in clause (a) of Section 19(7) of the Ordinance. The latter provision merely further prescribes a period of 30 days to complete the investigation of objections through a summary procedure. Clause (b) of Section 19(7) of the Ordinance provides for imposing a penalty of up to twenty percent of the sale price of the property if objections are found by the Banking Court to be mala fide or aimed at delaying the sale of the property. This penalty amount, as discussed earlier, is to be deposited by the applicant, or its security furnished, as per the second proviso to Rule 90 of Order XXI, C.P.C., before the court entertains the application to set aside the sale. Thus, there is no conflict between the two provisions; clauses (a) and (b) of Section 19(7) of the Ordinance are only complementary to the provisions of Rule 90 of Order XXI, C.P.C., for the execution of decrees under the Ordinance. A Banking Court is therefore bound to follow both the provisions in the matter of objections made to the sale of property in the execution of a decree."
14. The present petition is referred to this Division Bench at the request of the decree-holder and the auction purchaser with the view that appeal is maintainable before a learned Division Bench under section 22 of the Ordinance. The petitioner maintained before the learned Single Bench that permission should be granted to convert the constitution petition into an appeal. Paragraph No. 2 of order dated 29.04.2025 passed by the learned Judge-in-Chambers reads as under:- "Learned counsel for petitioner states that although appeal is not maintainable against the impugned order and this Court is competent to exercise its constitutional jurisdiction yet in order to avoid any future complication, he may be permitted to convert the instant constitution petition into an appeal."
As already observed above, the petitioner has not made any request during arguments or prayer in the petition for permission to deposit any amount under Order XXI rule 89 of CPC and even otherwise the time period provided by law has elapsed. In substance the petitioner kept on maintaining that this Court should intervene in order dated 15.01.2025. The present petition was filed on 06.03.2025, much after the period for filing an appeal under section 22 of the Ordinance.
Limitation period has been prescribed by the Ordinance which is a special law to which the provisions of section 5 of the Limitation Act-1908 are not applicable. Needless to say that no request or application to condone the delay is made, either. No question arises to convert the petition into appeal.
Banking Court are in consonance with law, hence, the same are hereby maintained and upheld.
The present petition is dismissed. No order as to costs.