' SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of the abovementioned two petitions for special leave to appeal by a common order as they arise from the same impugned judgment.
2. Hakeem Hafiz Muhammad Ghaus, respondent No,1 in the above petitions obtained a loan of Rs,5,000 from the Government Gazetted Officers Cooperative Housing Society, Bahawalpur (hereinafter to be referred as 'the Society' only) on 23-4-1968. It appears that he did not repay the said loan and accordingly, in the arbitration award dated 27-5-1971 he was found liable for a sum of Rs,6,250 for the period ending 31-12-1970, to the Society. Respondent No,3 through notice dated 16-3-1972 called upon respondent No,1 to repay the above outstanding balance to the petitioner in C.P. No,1154-L/96 (hereinafter to be referred as 'the Cooperative Bank' only). It further appears that the above amount was not paid by respondent No,1, in spite of notice, to the Cooperative Bank whereupon house constructed on Plot No,5-A Shopping Centre Model Town 'A' Bahawalpur (hereinafter to be called as 'the suit property' only) measuring 3-1/2 Kanals belonging to respondent No,1 was put to auction for recovery of loan amount on 18-4-1972. Malik Abdul Aziz, the petitioner in C.P. No,1155-L/96 (hereinafter to be called as 'the auction-purchaser') gave the highest bid for the suit property in the auction which was confirmed in his favour on 19-4-1972. Respondent No,1 having come to know about the said auction immediately tendered the amount of loan outstanding against him through pay order dated 20-4-1972. The pay order was, however, not accepted by the Cooperative Bank which led to the filing of the civil suit by respondent No,1 against the Cooperative Bank, Assistant Registrar, Cooperative Societies, Bahawalpur, Deputy Registrar, Cooperative Societies, Bahawalpur, Registrar, Cooperative Societies, Bahawalpur, and the auction- purchaser for declaration that the auction proceedings culminating in the auction of suit property and recovery of loan were illegal, void and mala fide. A perpetual injunction was also claimed by respondent No,1 in the suit restraining the defendants in the suit from taking over the suit property and a further direction was sought for cancellation of the auction proceedings in respect of the suit property. The suit was resisted by the defendants and on the pleadings of the parties following two issues were framed:--
(1) Whether the Civil Court has no jurisdiction to entertain this suit? OPD
(2) Whether the defendants' proceedings in respect of auction and confirmation etc. Are illegal, void and inoperative for the reasons stated in para. No,7 of the plaint? OPP ' The trial Court after recording evidence of the parties came to the conclusion that the auction proceedings were not held in accordance with the law and accordingly, the auction held on 18-4- 1972 was declared void. On the issue of jurisdiction of the Civil Court in the matter, the Trial Court held that as the auction was not held in accordance with the law, the Civil Court had the jurisdiction to entertain the suit. The Judgment and Decree of the Trial Court was, however, set aside by the first appellate Court on appeal and the suit filed by respondent No,1 was dismissed on the ground that the jurisdiction of Civil Court to adjudicate the controversies raised in the suit was specifically barred under the provisions of West Pakistan Cooperative Societies and Cooperative Banks (Repayment of Loans) Ordinance (No, XIV) of 1966 (hereinafter to be referred as 'the Ordinance' only). Respondent No,1 challenged the judgment and decree of first appellate Court, in a Civil Revision Application before the High Court, which was allowed by a learned Single Judge and the judgment and decree passed by the Trial Court was restored after setting aside the judgment and decree of the first appellate Court. The Cooperative Bank and the auction- purchaser are now seeking leave to appeal against the impugned judgment of learned Judge in Chambers.
3. It is jointly contended by the learned counsel for the Cooperative Bank and the auction- purchaser that the jurisdiction of the Civil Court under the Ordinance was specifically barred and as such the Civil Judge had no jurisdiction to entertain the suit and pass a decree therein in favour of respondent No,1 Reliance is placed by the learned counsel in support of their contention on section 13 of the Ordinance, which reads as follows:-- "13. Bar of jurisdiction.--(1) No Court or other authority shall have jurisdiction--
(a) to entertain or adjudicate upon any matter which the Registrar or the Assistant Registrar is empowered by or under this Ordinance or the rules framed thereunder to dispose of or determine; or
(b) to question the legality or validity of anything done under this Ordinance or the rules framed thereunder by the Registrar or Assistant Registrar.
(2) No Court or other authority shall be competent to grant an injunction or other order in relation to any proceedings before the Registrar or the Assistant Registrar, or anything done or to be done by or at the instance of the Registrar or the Assistant Registrar under this Ordinance or the rules framed thereunder."
' It is jointly contended by the learned counsel for the petitioners that the Civil Court otherwise had no jurisdiction in the matter as the auction of the suit property had taken place under Martial Law Order (M.L.O.) No,241 and paragraph 7 thereof, which reads as follows, completely ousted the jurisdiction of Courts in respect of all matters and actions taken under M.L.O. No,241:-- "Para.7. Any provision of this order or any action taken by any person or authority in pursuance of this order, shall not be called in question by or before any Court."
' After hearing the learned counsel for the petitioners at length, we are of the view that no case for interference with the judgment of the learned Judge in chambers is made out.
4. From the material produced before us in the above cases, it is quite clear that respondent No,1 was found liable in the arbitration proceedings for payment of a total sum of Rs,6,250 which included Rs,5,056.72 as the principal amount of loan, Rs,625 as interest up to 31-12-1970 and arbitration fee amounting to Rs,568. The notice (Exh.D/11) issued by respondent No,3, Assistant Registrar/Collector, Cooperative Societies, Bahawalpur to respondent No,1 also showed the liability of respondent No,1 to the Cooperative Bank as Rs,6,250.28. The contention of the learned counsel for the petitioners jointly, however, is that apart from the liability mentioned in Exh.D/10 (Arbitration Award) and Exh.D/11 the son of respondent No,1 was also found liable to pay a sum of Rs,13,222 to the Cooperative Bank which was recoverable from respondent No, l. In effect the contention of the learned counsel for the petitioners jointly is, that the loan obtained by Muhammad Anwar (son of respondent No,1) was a 'benami"loan of which the real beneficiary and recipient was respondent No,1 and as such the sum of Rs,13,222 found due and payable against said Muhammad Anwar was also recoverable from respondent No,1. This contention of the learned counsel has no merit. There is nothing on record before us to show that the loan obtained by said Muhammad Anwar, from the Cooperative Bank, was at any time held to be a 'benami' loan for the benefit of respondent No,1. The order of Assistant Registrar, Cooperative Societies, Bahawalpur, dated 7-8-1971, holding said Muhammad Anwar liable for a sum of Rs,13,222 to Cooperative Bank, reads as follows:-- "The complainant bank represented that a loan of Rs,13,222.18 which was advanced as Clean Overdraft is recoverable from the defendant.
' Notice under section 5 of the Ordinance was issued on 14-12-1970 for Rs,13,222.18 which served upon him on 26-12-1970 through Registered A.D. But he failed to comply with the provision of section 7 of the Ordinance.
' Date of hearing of the case was fixed for 10-5-1971 but he did not come present. Next date of hearing was fixed for 14-6-1971 but he also failed to come present of this date. The notice was issued in the daily Nawa-i-Waqe dated 21-6-1971 and daily 'Kainat' dated 22-6-1971 but he did not attend the Court on the fixed date.
' Under the circumstances noted above, the case is decided ex parte and Mr. Muhammad Anwar Prop. Arrai Dawakhana, Model Town 'A' Bahawalpur is held liable for the payment of Rs,13,222.18 principal along with interest at the rate of 10% with effect from 1-10-1970 to the date of full repayment of this loan failing which he will be liable for action under sections 9, 10 and 11 of the Ordinance."
There is nothing in the above order of Assistant Registrar to indicate that the loan advanced to Muhammad Anwar was a benami' loan and that the real beneficiary and recipient of loan was respondent No, 1 . In the absence of a finding by a competent forum that the real beneficiary of the loan advanced to Muhammad Anwar was respondent No,1 the latter could not be held liable for the loan advanced to Muhammad Anwar.
5. The next question which arises for consideration in the cases is, whether the Civil Court was competent to examine the validity of the auction conducted by the authorities? The Civil Court under section 9 of the Code of Civil Procedure are competent to try all suits of civil nature except those of which their jurisdiction is barred either expressly or by necessary implication. It is a well- settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court. In the case before us, the action of the Cooperative Authorities in auctioning the suit property for recovery of the loan against respondent No,1 was challenged in the suit as contrary to the provisions of the Ordinance and M.L.O.
241.
6. The scheme of sections 5, 6 and 7 of the Ordinance contemplates that when a notice is served on the borrower or his surety requiring him to repay and secure the loan and he does not depute the liability then within 60 days of the service of notice, and in cases where the borrower disputes the liability within 60 days of the determination of his liability by the Registrar or the Assistant Registrar as the case may be, under section 6 of the Ordinance, he is required to take the following steps:--
(a) To secure the loan or liability by creating a mortgage, pledge, hypothecation or assignment of such property of the borrower or his surety or of both before the Assistant Registrar if the amount of loan does not exceed Rs,30,000 and in case where the amount exceeds from Rs,30,000 before the Registrar in the manner as the said authority may deem fit;
(b) repay 15% of the loan within 6 months of the service of notice under section 5 or within 6.
Months of the decision of Assistant Registrar or the Registrar where the liability is disputed;
(c) the balance amount of loan is to be repaid in 12 equal half-yearly instalments, the first instalment to be paid after expiry of six months' period mentioned in (b) above.
' In case the borrower failed to take steps mentioned above, the loan is to be recovered in accordance with the provisions of section 8 of the Ordinance, which reads as follows:-- "8. Recovery of loans.--If amount of any loan or any part thereof to be repaid in accordance with the provisions of section 7 is not paid within the period or the periods specified in the said section, the same may, without prejudice to the provisions of section 10, be recovered according to the law and under the rules for the time being in force for the recovery of arrears of land revenue."
7. It is. Therefore, quite clear that the procedure for recovery of loan to be followed under section 8 of the Ordinance is the same which is prescribed under the West Pakistan Land Revenue Act (hereinafter to be referred as ' the Act' only) for recovery of arrears of land revenue. The procedure for conducting sale of immovable property for recovery of arrears of land revenue is contained in sections 92 to 112 of the Act. Section 92 of the Act provides for issuance or proclamation of the sale, specifying the date, the time and place of sale, particulars of the property to be sold, the encumbrances on the property and the amount for which recovery the property is to be sold.
Under section 94 ibid, a copy of the proclamation is to be affixed in a conspicuous part of the office of Tehsildar and also in the office of Collector, besides serving it on the defaulter. Section 95 ibid specifies that sale shall not take place on a Sunday or other holiday and unless 30 days had expired from the date of proclamation. Section 96 provides for postponement of sale by the Collector from time to time for reasons to be recorded in writing. Section .97 provides that if at any time before bidding of the auction is completed, the defaulter or any other person having interest in the property pays the arrears for which the property is being sold together with the costs incurred for recovery, the officer conducting the sale shall stay the sale. Sections 98 to 101 deal with the procedure to be followed in cases of default in payment of auction money by the highest bidder and section 102 provides for reporting the auction to the Commissioner concerned by the Collector. Section 103 provides that at any time within 30 days of the sale, on an application made to the Commissioner the sale can be set aside on the ground of some material irregularity or mistake in publishing or conducting the sale. Under section 104(1) ibid, the sale is to be confirmed after expiry of 30 days from the date of sale if no application is moved under section 103 and if such an application is filed then after rejection of such application. Subsection (2) of section 104 ibid provides that if at any time within 30 days from the date of sale, the defaulter pays the arrears in respect of the property sold together with the costs incurred for recovery of such arrears, the Commissioner shall make an order setting aside the sale. In such an event the money deposited by the auction-purchaser is to be refunded to him. It is to be noted that under the abovementioned provisions, the borrower/defaulter has the right to get the sale stayed before the bidding in the auction is completed by paying the amount of dues and the cost incurred on sale to the officer conducting the sale. After the auction sale, borrower/defaulter has another chance to get the auction sale of his property set aside by paying the amount due and the costs incurred for recovery of the amount, within 30 days of the date of sale. This valuable right vesting in the defaulter/borrower to save his property from being sold away for realisation of the dues against him 'cannot be defeated by circumventing the provisions of the Act.
8. It is not disputed before us that the auction sale in the present cases was advertised on 15-4- 1972 and the auction took place on 18-4-1972 which was confirmed on 19-4-1972. As we have already reached the conclusion that in view of section 8 of the Ordinance, the auction sale was to be conducted in accordance with the provisions of the Act, the auction sale in the present cases besides having been conducted with undue haste, was in utter disregard of the provisions of the Act applicable to such sale. It has come on record that immediately on coming to know of the auction sale respondent No,1 offered to pay the entire amount of loan outstanding against him within two days of the auction sale and as such there was no occasion for confirmation of auction sale in favour of the auction purchase. The learned counsel for the Cooperative Bank and the auction-purchaser have, however, also jointly contended that the auction sale could not be questioned on any ground as it was conducted under M.L.O.
241.
9. We have already pointed out earlier in this judgment that the total liability 'of respondent No,1 for the loan of Cooperative Bank against him determined under the arbitration award dated 27-5-1971 was Rs,6,250 only. In these circumstances, the provisions of M.L.O. 241 were not attracted in the present case as they applied only to cases where the total amount of loan due against a borrower including interest was in excess of Rs,10,000. As a result of the above discussion, we hold that the actions taken by the official respondents in the case in auctioning the property of respondent No,1 and confirming the auction sale in favour of auction-purchaser were contrary to law and as such the Civil Court had the jurisdiction to examine the validity of their actions in the suit filed by respondent No, 1 . We, therefore, see no reason to interfere with the judgment of learned Single Judge. The petitions are, accordingly, dismissed and leave is refused.
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