' QURBAN SADIQ IKRAM, J.--Facts necessary for decision of this appeal are briefly stated below:- ' On 18th February, 1975, Allied Bank of Pakistan Limited, Gole Cloth Bazar Branch, Faisalabad sanctioned loan of Rs.14,49,427 to Premier Textile Mills (Pvt.) Limited for opening a letter of credit for import of parts of textile machinery from United Kingdom of the value of 68,756. The Premier Textile Mills (Pvt) Limited applied for rearrangement under the Companies Act which was sanctioned on 26th March, 1976 in Civil Original No. 16 of 1975. As a result of this rearrangement, the Premier Textile Mills (Pvt.) Limited was divided into three independent units given below:-
(i) Hudaybia Textile Mills (Pvt.) Limited.
(ii) Zulfiqar Associates (Pvt.) Limited.
(iii) ABM Associates (Pvt.) Limited.
' The three new Companies and their Directors undertook to be jointly and severally liable for the liabilities of the defunct Premier Textile Mills Limited. The immovable assets of the Premier Textile Mills Limited were divided physically at the spot while movable assets were kept joint with an understanding that after sale the proceeds will be rateably distributed amongst the three Companies.
2. The loan advanced by the Allied Bank of Pakistan Limited was not cleared. As such, on 30th September, 1981, a suit for the recovery of Rs.44,95,039 was filed against the three newly- constituted Companies after rearrangement in the Court of Special Judge (Banking), Lahore. The ABM Associates (Pvt.) Limited went in liquidation whereafter the Special Judge (Banking) directed that the suit will proceed against the remaining two Companies i.e. Hudaybia Textile Mills (Pvt)
Limited and Zulfiqar Associates (Pvt) Limited. The suit in the sum of Rs.65,60,651 was decreed by learned Special Judge (Banking) Lahore vide judgment dated 30th October, 1984 against these two Companies. Zulfiqar Associates (Pvt) Limited did not challenge the said decree. However, Hudaybia Textile Mills (Pvt) Limited filed an appeal to challenge the decree dated 30th October, 1984. This appeal was dismissed because the appellant had failed to deposit the required security.
3. The decree-holder Bank filed execution application No.2 of 1985 for execution of the decree. The property was attached by Court on 10th June, 1985. The terms and conditions of auction were finalised on 10th July, 1985. No one took any objection to the attachment of the property or to the proposed terms and conditions of auction. The immovable property of the share of Hudaybia Textile Mills (Pvt) Limited was auctioned on 15th September, 1985. Rao Muhammad Suleman and Sheikh Muhammad Shafiq were the highest bidders. The machinery was auctioned on 16th September, 1985 whereafter the Court-auctioneer submitted his report to the executing Court. The Hudaybia Textile Mills (Pvt) Limited on 18th September, 1985, filed an application (C.M. No.103 of 1985) praying that the auction be not confirmed. The learned executing Judge vide impugned order dated 6th May, 1986, accepted the said application and refused to confirm the auction for the reason that Hudaybia Textile Mills (Pvt) Limited has paid its entire share of the decreed amount to the decree-holder.
4. In support of this appeal, it is contended that the application dated 18th September, 1985 (C.M.
No. 103 of 1985) was in fact an application for setting aside of the sale under Order XXI, rule 89, C.P.C.; secondly, that petition under rule 89 could have been filed only on depositing in Court for payment to the purchaser a sum equal to 5 per cent. Of the purchase money and for payment to the decree-holder, the amount specified in the proclamation of sale. It was, therefore, argued that Hudaybia Textile Mills Limited having failed to deposit these amounts, the application dated 18th September, 1985 should have been dismissed. The learned counsel for respondents 3, 8 to 10 controverted the above contentions and submitted firstly, that the application was under section 151, C.P.C. For which no deposit in Court was required and in alternate, at its best, the application could be treatd as an application under Order XXI, rule 90, C.P.C. And not under rule 89 of the said Order. The learned counsel for respondents further contended that the land sold in auction did not belong to the judgment-debtor; secondly, that the land was purchased in auction by Rao Muhammad Suleman and Sheikh Muhammad Shafiq but the appeal has only been filed by Rao Muhammad Suleman; and thirdly, that the Court-auctioneer committed material irregularities during auction and as such, the impugned order dated 6th May, 1986 was unassailable. The learned counsel appearing on behalf of the Bank admittd that the Bank has already received Rs.35,00,000 in full and final satisfaction of the decree against Hudaybia Textile Mills Limited and as such, if the auction is confirmed the amount paid by the auction-purchasers would go to Hudaybia Textile Mills Limited and if the auction is not confirmed, the property will go back to the judgment- debtor and the auction-purchasers will be entitled to receive back the money paid by them.
5. We have considered the respective arguments on behalf of the parties.
' It is not disputed that a decree in the sum of Rs.65,60,651 was passed on 30th October, 1984 in favour of Allied Bank of Pakistan against Hudaybia Textile Mills (Pvt) Limited and others. In an application for execution of this decree, the property belonging to Hudaybia Mills was attached on 10th June, 1985. The terms and conditions of sale by auction of the said property were finalised on 10th July, 1985. Hudaybia Mills did not file objections under Order XXI, rule 58, C.P.C., or any other law to question the attachment of its property and finalisation of the terms and conditions of auction.
The executing Court vide order dated 10th July, 1985, fixed 14th, 15th and 16th September, 1985 for sale by auction of the property of Hudaybia Mills. Accordingly, the sale of immovable property took place on 15th September, 1985 while the machinery was auctioned on 16th September, 1985. This sale was for the first time challenged by Hudaybia Mills through an application (C.M. No. 103/B of 1985 in execution application No. 2/B of 1985) on 18th September, 1985. It was prayed that "the auction held in the past and to be held in future may graciously be held in abeyance in so far as the attached properties are concerned until the finalisation of the negotiations between the parties." An objection to the sale of immovable property in execution of decree could be taken either under rule 89 or rule 90 of Order XXI, C.P.C. It is conceded that Hudaybia Mills before filing application dated 18th September, 1985 (C.M. No. 103/B of 1985) did not deposit in Court firstly, for payment to the purchaser. a sum equal to 5 per cent of the purchase money; and secondly, 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. Rule 89 of Order XXI, C.P.C., makes it a condition precedent that the above-said two deposits be made in the Court before applying for setting aside of the sale. The sale could not be permitted to be challenged through an application under section 151, C.P.C. It was held in Nanhelal and another v. Umrao Singh AIR 1931 P C 33 that when once a sale had been effected, a third party's interest intervene and there is nothing suggest that the provisions of Order XXI, rule 2 or 89 are to be disregarded. It was further held that after a sale is duly held, the Court cannot refuse to confirm sale on the ground that the decree-holder and judgment- debtor say that the decree has been satisfied. In Nurjahan Khatun v. Asia Khatun AIR 1932 Cal. 216, it was held that the deposit under rule 89 must be made in the ordinary way for payment to the decree-holder voluntarily and unconditionally in order to get an execution sale set aside. It was further held that where the judgment-debtors prevent the money from becoming available unconditionally for payment to the decree-holder, such a deposit is not a good deposit under rule 89 of Order XXI, C.P.C. In Amritlal Narsilal v. Sadashiv AIR 1944 Born. 233 it was held that rule 89 of Order XXI, C.P.C., must be strictly complied with if judgment-debtor wants to take advantage of concession given by that rule. In this case the judgment-debtor had in fact deposited the amount within limitation but by mistake in calculation, the deposit was short by small amount. It was held that rule 89 cannot be considered to have been complied with although the deficiency was made good on discovery of mistake but after limitation. Similar view was taken in Lutfor Rahman v. Mst.
Tahera Khatun and others PLD 1961 Dacca 303. As such, Hudaybia Mills, one of the judgment- debtors whose property was sold by the Court-auctioneer having failed to make requisite deposit under rule 89 of Order XXI, C.P.C., the Court was left with no choice except to confirm the sale. It was argued by the learned counsel that application, dated 18th September, 1985 was filed under section 151, C.P.C., and as such, no deposit was required to be made by the judgment-debtor. In alternate, the learned counsel contended that the said application could be treated as an application under Order XXI, rule 90, C.P.C. This argument is without any force and cannot be given any credit. The inherent powers under the Code of Civil Procedure can be exercised only where no specific provision of law is available. In the instant case, as held above, the sale of attached property in execution of decree could be challenged either under rule 89 or under rule 90 of Order XXI, C.P.C. The argument that the said application be treated as an application under Order XXI, rule 90, C.P.C. Cannot be accepted because the judgment-debtor, in the said application did not allege any material irregularity or fraud in publishing or conduction of sale by the Court-auctioneer.
Secondly, the allegation of material irregularity and fraud by the Court auctioneer before us seems to be an afterthought, and thirdly, no finding on material irregularity or fraud could be recorded without recording evidence. As no such objection was taken before the executing Court, these questions were not adverted to and as such, cannot be permitted to be canvassed by the judgment-debtor, for the first time, before us. It was half-heartedly argued by the learned counsel firstly, that the land sold in auction in fact belonged to the Government and as such, could not have been sold and secondly, that the land was purchased in auction by Rao Muhammad Suleman and Sheikh Muhammad Shafiq but the present appeal has been filed only by Rao Muhammad Suleman. The learned counsel, therefore, submitted that the appeal be dismissed. We are not impressed by these two contentions. No objection regarding the ownership of the property was taken either during the trial of the suit or before the executing Court. It is correct that only Rao Muhammad Suleman has filed the appeal. He was one of the aggrieved persons and could alone challenge the impugned order through this appeal.
6. In view of the above discussion, this appeal is accepted and the sale by auction of the properties of Hudaybia Textile Mills (Pvt) Limited held on 15th and 16th September, 1985 is confirmed. As a difficult question of law was involved in this appeal, the parties are left to bear their own costs of this appeal.