1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed against the judgment dated 7-5-1995, in H.C.A. No.3 of 1994, whereby the Hon'ble Division Bench of the High Court of Sindh remanded the case tb the learned Judge in Chambers with the direction that the reference of the Official Assignee forwarding the bid offered by the appellants to purchase the properties of Karachi Cardiac and General Hospital (Pvt.) Limited (hereinafter to be- referred as 'the Hospital') be heard and disposed of after giving opportunity of hearing to all the interested parties.
2. ' The relevant facts of the case are that the Hospital was incorporated as a Private Limited Company under Companies Ordinance, 1984 (hereinafter to be called 'the Companies Ordinance') in the year 1984. The object of the Company was to establish and run the hospital through finances to be equally contributed by three groups of doctors led by Dr. Surgeon Suleman Ahmed Khan, Dr. Surgeon S.A Hamid and Dr. Syed Hamid Shafqat, respectively. In addition to the finances which were to be provided by the above mentioned three groups of doctors, it was also agreed that further funds could be raised through borrowings from Industrial Development Bank of Pakistan (hereinafter to be referred as 'the Bank'). It appears that in order to secure loan from the Bank, besides mortgaging the assets of the hospital, personal properties belonging to Mrs. Sarah Shafqat, Mrs. Rashida Hameed and Adnan Ahmed Khan were mortgaged with the Bank. It further appears that the loan obtained by the hospital could not be repaid with the result that on 19-11- 1990, the Bank filed an application (J.M. No. 8/90) under section 39 of the Industrial Development Bank of Pakistan ordinance, 1961 (hereinafter to be referred as the Ordinance') for recovery of a sum of Rs.2,61,36,464. In the abovementioned J.M. Filed by the Bank besides the hospital Mrs. Sarah Shafqat, Mrs, Rashida Hameed and Adnan Ahmed Khan; the three guarantors, were also impleaded as party besides Dr. Surgeon Suleman Ahmed Khan and the legal heirs of late Surgeon S.A. Hameed, who died in the meantime. On 23-1-1991 a learned Single Judge issued ad interim attachment order in J.M. No. 84 of 1990 in respect of properties offered as security for the loan. The Court simultaneously directed the Official Assignee to engage the services of a Chartered Accountant to determine the exact amount of liabilities against the hospital. The official assignee accordingly, engaged the services of a Chartered Accountant and in the light of the report of a Chartered Accountant submitted his report to the Court showing the liability of the Hospital as on 15-11-1992 amounting to Rs.2,12,03,886. None of the parties disputed the liability so determined and accordingly, no objections were filed by any of the respondents against interim attachment issued by the learned Single Judge which was made absolute on 29-10-1992. As a result of the order of learned .Single Judge making the attachment absolute, the properties belonging to the hospital as well as that of the guarantors; except the property belonging to Dr. Syed Hamid Shafqat, were ordered to be sold by the Official Assignee. As the order making the attachment absolute was not challenged by any of the parties, the properties belonging to the hospital were advertised for sale through open auction by the Official Assignee on 26-4-1993 showing the reserve price of the properties as Rs.2,50,00,000. It is an admitted position that in response to the auction notice, no bid was received by the Official Assignee. Accordingly, under the direction of the Court, a second advertisement was issued by the Official Assisgnee on 11-8-1993 inviting offer for sale of the properties of the hospital showing the reserve price of the properties as Rs.30,00,000. In response of the second auction notice, only one offer of Rs.2,27,00,000 was received from one Dr. Mrs. Talat Khan along with pay order Rs.22,70,000. This offer was submitted by the Official Assignee through his report dated 30-8-193 to the Court for approval. It appears that after expiry of the period fixed in the auction notice for submitting the bid for the properties of the hospital, Messrs Mehran Motors also submitted their, bid for Rs.2,32,00,000. Alongwith pay,, order of Rs.5,00,000. The Court, however, did not accept the offer made by Dr. Mrs. Talat Khan as it was not found adequate. The offer made by Messrs Mehran Motors was also rejected as it was not made within the period prescribed for making the bid in the auction notice. The Official Assignee was, accordingly, directed to cause a fresh advertisement for sale of the properties of hospital with reserve price of Rs.2,75,00,000.00. In response to this third auction notice, dated 3-11-1993 Dr. Mrs. Talat Khan and Mrs. Birjees made an offer of Rs.2,32,25,000. To the Official Assignee to purchase the properties belonging to the hospital.
3. The Official Assignee through his reference dated 20-11-1993 forwarded the above offer of appellants to the Court. It is the case of appellants that the copies of the reference of Official Assignee, dated 20-11-1993, were supplied to all the parties. It also appears that an attempt was made to obtain urgent order in Chambers on the reference of the Official Assignee on 23-11-1993 but the learned Judge declined to grant the application for urgent hearing. Thereafter, the reference of the Official Assignee in the normal course came up for hearing before the learned Judge in Chambers on 14-12-1993 in presence of the counsel of the Bank, counsel of auction- purchaser, Advocate of the hospital and the Official Assignee. The learned Judge accepted the bid of Rs.2,32,25,000 and directed the appellants to deposit balance amount with the Official Assignee within 15 days. It is not disputed that the balance of the bid money was deposited by the appellants as directed by the Court whereupon possession of the property was handed over to the appellants on 22-1-1994. The fee claimed by the Official Assignee on the sale of the property was also sanctioned by the learned Judge in Chambers by order, dated 11-1-1994. Mrs. Sarah Shafqat, who was one of the respondents in J.M. No.8 of 1984 filed H.C.A. No. 3 of 1993 against the order of learned Judge in Chambers, dated 14-12-1993 accepting the bid offered by Dr. Talat Khan and Mrs. Birjees Khan for Rs.2,32,25,000. Before the learned Division Bench, respondent No.1 (who was appellant before the Division Bench) contended that the order-accepting bid of Dr. Talat Khan and Mrs. Birjees Khan was without notice to her. It was also contended before the learned Division Bench that respondent No.1 had filed J.M. 19 of 1992 under section 290 of the Companies Ordinance in April, 1992 which was ordered to be heard along with J.M. 84 of 1990 by the learned Company Judge on 15-9-1993. It was contended before the learned Division Bench that in view of the order passed on 15-9-1993, which was by consent of both the parties, the order passed by the learned Single Judge in J.M. 84 of 1990 confirming sale of properties, was not a valid order. The appeal was resisted on behalf of the appellants on the ground that J.M. 19 of 1992 filed by respondent No.1 had no nexus with J.M. 84 of 1990 and in any case no prejudice was caused by confirming the sale of the properties of the hospital which had taken place in pursuance of the order passed by The learned Single Judge making the interim attachment absolute under the provisions of the Ordinance. It was also contended before the learned Division Bench that the hospital having been put to auction twice and no bid having been received, the confirmation of sale in favour of auction-purchaser/appellants as a result of 3rd notice of auction sale did not suffer from any infirmity in the circumstances of the case. The learped Division Bench, however, did not agree with the contention of appellants and reached the conclusion that the reference of the Official Assignee in J.M. No. 8 of 1990 could not be heard separately from J.M 19 of 1992, as both the cases were ordered to be heard together. Accordingly, the H.C.A. Filed by respondent No.1, was allowed and the order passed by the learned Single Judge confirming the sale in favour of appellants was set aside and the case was remanded to the learned Single Judge with the direction that the reference made by the Official Assignee for acceptance of the bid offered by the appellants be heard alongwith J.M. 19 of 1992 after notice to all the interested parties. Leave was granted against the judgment of learned Division Bench, dated 7-5-1995 to consider, legality of the order passed by the learned Division Bench including the question of maintainability of H.C.A. Filed by respondent No.1 before the learned Division Bench of High Court of Sindh.
4. ' We have heard Mr. Syed Sharifuddin Pirzada, the learned Senior Advocate Supreme Court for the appellants, Mr. Abdul Hafeez Pirzada, the learned Senior Advocate Supreme Court for respondent No.1 while Mr. Afsar Abidi, Advocate Supreme Court, appeared for respondents Nos.6 and 7. Mr. Syed Sharifuddin Pirzada, in support of the appeal, has raised the following contentions:--
(i) That J.M. 84 of 1990 having been filed under a Special Law, section 39 whereof provided appeal only in respect of orders passed under clauses (7) and (9), no other order passed under section 39 was open to be challenged by way of appeal;
(ii) that the sale of properties of the hospital having taken place in accordance with provisions of Code of Civil Procedure, the only remedy available to the respondents to challenge the sale was in accordance with Order 21, rule 90 of the Code of Civil Procedure and the respondents having failed to avail of that remedy in accordance with the law, the appeal filed before the learned Division Bench was not maintainable;
(iii) that the order confirming sale of the properties being an order not falling within the ambit of clauses (7) and (9) of section 39 of the Ordinance, no appeal against such an order was competent before the learned Division Bench;
(iv) that the hospital having been put to auction on 2 occasions and having failed to attract the bid, the offer made by the appellants in response to the 3rd advertisement was rightly accepted/ confirmed by the learned Judge in Chambers;
(v) that the respondent No. 1 having notice of the reference made by the Official Assignee for acceptance of the bid of appellants, did not put in appearance before the learned Single Judge at the time of hearing of the reference and, therefore, she could not subsequently object to the confirmation of sale/ bid of the appellants for Rs.2,32,25,000;
(vi) that in any case, the respondent No.1 till today, has failed to place before this Court or during hearing of the H.C.A. By the learned Division Bench any offer or bid higher than the bid offered by the appellants and as such there was no valid ground for remand of the case to the learned Single Judge for rehearing;
(vii) that the subject-matter of J.M 84 of 1990 and 19 of 1992 being different, no prejudice was caused by taking up J.M. 84 of 1990 separately and disposing of the same by a separate order.
5. ' In reply to the above submissions of the learned counsel for the appellants, Mr. A.H. Pirzada, the learned Advocate Supreme Court for respondent No. 1, has advanced the following contentions:-
(i) That the order confirming the sale in favour of the appellants passed by the learned Judge in Chambers, dated 14-12-1993 was wholly without jurisdiction as the said order was passed without hearing respondent No.1, who was a necessary party in the case;
(ii) that according to the cause-list of the High Court for 14-12-1993, the case was fixed on a motion, and therefore, it could not be disposed of without issuing notice to the parties. It is urged by the learned counsel that in the cause-list, the cases which were listed for motion, did not contain names of the Advocates appearing in the cases, and therefore, it cannot be argued that the counsel of respondent No. 1 had the notice of said reference fixed before the learned Judge in Chambers;
(iii) that in view of the order passed by the Court on 15-9-1993 directing that J.M. 19 of 1992 will be taken up and heard alongwith J.M.. 84 of 1990, disposal of J.M. 84 of 1990 without hearing J.M. 9 of 1992 was not a proper disposal;
(iv) that the learned Judge having rejected the bid of Rs.2,27,00,000 offered by appellant No.1 and also having refused to accept bid of Rs.2,32,00,000 offered by Messrs Mehran Motors as inadequate, acceptance of bid of the appellants for Rs.2,32,25,000. Was not a proper exercise of discretion by the Court specially when the reserve price of the hospital was fixed as Rs.3,50,00,000.
6. And the properties were being sold below the reserve price;
(v) that the order passed by the learned Single Judge confirming the sale was appealable under Ordinance XV of 1980 as well as under Law Reforms Ordinance 1972, and as such the appeal filed by respondent No. I was fully competent;
(vi) that the learned Judge in Chambers while confirming the sale in favor of the appellants failed to address the question of adequacy of the price offered by the appellants and as such the exercise of discretion to accept bid which was admittedly below the reserve price, was not a proper exercise of discretion;
(vii) that the provisions of Order 21, Rule 90 of the Code of Civil Procedure were not attracted in the present case as it was not a sale by auction which was accepted by the Official Assignee. It was only a bid which was received by the Official Assignee and forwarded to the learned Judge in Chambers for passing appropriate order. In any case, the respondents having filed application under Order 21, Rule 90 (ibid), before the H.C.A. Bench and the case having been remanded to the learned Judge in Chambers, the same could be taken up and disposed of in accordance with the law.
7. ' Mr. Afsar Abidi, the learned counsel for the hospital, supported the contentions of Mr. S.S. Pirzada to the extent that the appeal before the H.C.A. Bench was not maintainable. He further stated that the amount of Rs.2,32,25,000. Deposited by the appellants towards the sale price of the properties belonging to the hospital, was invested and by now this amount alongwith the interest accrued thereon, is not only sufficient to cover the claim of the Bank but perhaps some amount may also be available for disbursement among the shareholders.
8. ' We will first take up the contentions of the learned counsel for the appellants that no appeal was competent against the order of the learned Judge in Chambers confirming/accepting the bid of the appellants. It is contended by Mr. S.S. Pirzada, the learned counsel for the appellants, that J.M.
9. 84 of 1990 was filed under a Special Law, which provided appeal only against specified category of orders under section 39 of the Ordinance. It is contended by the learned counsel that the right of appeal having been made available under a Special Statute under special circumstances, appeal against any other order was not available under the General Law. It is further contended by Mr. S.S. Pirzada that the learned Single Judge while deciding the application under section 39 of the Ordinance, acted as a District Judge in the capacity of Principal Court of Original Jurisdiction in the Civil District of Karachi and as such no High Court Appeal was competent against such an order. In order to appreciate the contention of the learned counsel for the appellants, it is necessary to examine in depth the provisions of section 39 of the Ordinance, which reads as follows:-- "39. Special provisions for enforcement of claims by the Bank.---(1) Where the bank becomes entitled to require the immediate payment of any loan by reason of the breach of any condition of any agreement between the bank and an industrial concern to which the loan has been granted or any person liable for repayment of that loan fails to repay the loan or where an industrial concern to which any loan has been granted or any person liable for repayment of that loan fails to repay the loan in terms thereof or in compliance with the notice under section 38, an officer of the Bank, generally or specially authorized by the Board in this behalf, may apply to the District Judge within the local limit of whose jurisdiction the concern carries on the whole or a part of its business, or the office or branch of the bank from which the loan was disbursed is situated, for one or more of the following relief, namely--
(a) an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan and any other properties, disclosed or undisclosed, of the industrial concern or the properties, disclosed or undisclosed, of persons liable for the repayment of the loan, including guarantors; or
(b) an order for the transfer of the management of the industrial concern to the bank or its nominee, provided that when such management is so transferred to the bank, the bank shall be deemed to be the agent of the industrial concern and shall manage the industrial concern on its behalf and all actions taken by the bank on such transfer shall be deemed to be those of the industrially concern; or
(c) an injunction ad interim where there is apprehension that machinery or equipment may be removed from the premises of the concern without the permission of the board.
(2) An application under subsection (1) shall state particulars of the loan and the sums claimed in respect of the same, particulars of the concern and any other person or persons liable for the repayment of the loan and such other particulars as may be prescribed by rules.
(3) Where the application is for the relief mentioned in clause (a) of subsection (1), the District Judge shall,--
(a) pass an order ad interim attaching such properties referred to in clause (a) aforesaid as are likely in the estimation of the Court to fetch, on being sold, an amount equivalent to the sums claimed by the bank together with the costs of the proceedings taken under the section, and
(b) pass an order appointing one or more Receivers of the properties referred to in clause (a) aforesaid where in the application filed by the bank such remedy is specifically sought.
(4) The Bank shall have the option to seek an order under clause (b) of subsection (3) in the first instance or at any subsequent time prior to grant of the relief mentioned in clause (a) of subsection (1).
10. (4A) Where the application is for the relief mentioned in clause (b) of subsection (1), the District Judge shall grant an injunction ad interim restraining the concern or the person liable for repayment of the loan from transferring any of the properties, including machinery, equipment and stocks, without the permission of the bank and shall issue a notice calling upon the concern and the persons liable for repayment of the loan to show cause on a date to be specified in the notice why the management of the concern should not be transferred to the bank.
(5) Before passing any order under subsection (3) or subsection (4), the District Judge may, if he thinks fit, examine the person making the application.
(6) At the time of passing an order under subsection (3), the District Judge shall issue to the concern a notice accompanied by a copy of the order; the application and evidence, if any, recorded by him and calling upon it to show cause on a date to be specified in the notice why the order of attachment ad interim should not be made absolute or the injunction be not confirmed.
(7) If no cause is shown on or before the date specified in the notice under subsection (4) or subsection (6), the District Judge shall forthwith make the order ad interim absolute and direct the sale of the attached property or transfer the management of the concern to the bank or confirm the injunction.
(8) If cause is shown the District Judge shall proceed to investigate the claim of the Bank and the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), shall as far as practicable, apply to such proceedings.
(9) On completing an investigation under subsection (8) the District Judge shall pass an order--
(a) confirming the order of attachment or directing the sale of the attached property, or
(b) varying the order of attachment so as to release a portion of the property from attachment and directing the sale of the remainder of the attached property, or
(c) releasing the property from attachment, if he is satisfied that it is not necessary in the interests of the Bank to retain it under attachment, or
(d) confirming or vacating the injunction, or
(e) transferring or refusing to transfer the management of the concern to the bank: ' Provided that when making any order under clause (c) the District Judge may make such further orders as he thinks necessary to protect the interests of the Bank and may apportion the cost of the proceedings in such manner as he thinks fit: ' Provided further that unless the Bank intimates to the District Judge, that it will not appeal against any order releasing any property from attachment such order shall not be executed until the expiry of the period mentioned in subsection (11), or if an appeal is preferred, unless the High Court otherwise directs, until the appeal is disposed of.
(10) An order under this section for the attachment or sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908 (Act V of 1908), for the attachment or sale of property in execution of a decree as it' the Bank were the decree-holder.
(11) Any party aggrieved by an order under subsection (7) or subsection (9) may within thirty days from the date of the order, appeal to High Court or, where the order is of a Judge of High Court exercising original civil jurisdiction, to the Court to which an appeal from a judgment of such Judge lies; and upon such appeal the Appellate Court may, after hearing the parties, pass such orders as it thinks proper.
(12) Nothing in this section shall be construed, where proceedings for liquidation in respect of the industrial concern have commenced before an application is made under subsection (1), as giving the bank any preference over other creditors of the concern not conferred on it by any other law for the time being in force."
11. ' Section 39 of the Ordinance is a self-contained provision which provides for the detailed procedure for enforcement of the claims by the Bank against the defaulting party. Subsection (1) of section 39 lists the circumstances under which the Bank would become entitled to require immediate payment of loan. It further provides that in such an event the Bank may apply to the District Judge of the area, where the defaulting concern is carrying on the whole or part of its business, for one or more of the several reliefs mentioned in clauses (a) to (c) of subsection (1) of section 39. Subsection (2) of section 39 (ibid), prescribes the particulars required to be mentioned in the application of the Bank to the District Judge under section 39 (1). Subsection (3) of section 39 provides for the kind of interim order which the Court shall pass on the application of the Bank, A when relief is claimed in terms of section 39(1) (a) (ibid). Subsection (4) of section 39 gives an option to the Bank to seek appointment of receiver of the properties of the defaulter in terms of clause (b), subsection (3) of section 39 either in the first instance or at any time before the grant of relief under section 39(1) (a)(ibid). Subsection (4-A) provides that where the Bank files application seeking relief in terms of clause (b) of subsection (1) of section 39, the Court shall, through an ad interim order, restrain the respondents from transferring any of the properties, including machinery, equipment and stocks without the permission of the Bank. In addition to it, the Court may also call upon the person liable to repayment of loan to show cause why the management of the concern be not transferred to the Bank. Subsection (5) provides that the Court may if it thinks it necessary examine the person making the application. Subsection (6) provides that at the time of passing of the order under section 39(3), the District Judge shall issue notice to the concern accompanied by the copy of the ad interim order and the evidence if any recorded to show cause why the ad interim order should not be made absolute. Subsection (7) of section 39 provides that if the party against whom ad interim attachment order had been issued under subsection (6) of section 39, fails to show cause in response to the notice issued to him on or before the date specified in the notice, the Court shall make the ad interim order absolute and the attached property shall be directed to be sold or the management of the Company be transferred to the Bank. However, if the party to whom ad interim attachment is directed, appears and contests the ad interim attachment an investigation is to be undertaken under subsection (8) and after completing that investigation, the Court may either confirm the order of attachment and sale of attached property or may vary the attachment so as to release a portion of the property from attachment and direct sale of the remaining portion of attached property or it may release from attachment if it is found that keeping the property under attachment is not in the interest of the Bank or it may confirm or vacate the injunction or it may either transfer or refuse to transfer the management of the Company to the Bank. In case the Court decides to release the property on the ground that it is not in the interest of the bank to retain the property under attachment, the Court may pass such other order to protect the interest of the Bank and may also order for apportionment of the cost of the proceedings in such manner as it thinks fit. In case the order is passed for release of the property from attachment and the Bank intimates the Court that it intends to prefer an appeal against the order, the order, passed by the Court releasing the property would not be executed until expiry of the period of appeal provided under subsection (11) of section 39 of the Ordinance. Subsection (10) provides that attachment and sale of the property under section 39 shall be carried out as far as possible in the manner provided in the Code of Civil Procedure, 1908, attachment and sale of property in execution of a decree treating the Bank as the decree-holder. Subsection (11) of section 39 gives right to the aggrieved party to file an appeal from the orders passed under subsections
(7) and (9) within 30 days of the passing of such order to the Court mentioned in this subsection.
12. Subsection (12) of section 39 declares that where liquidation proceedings in respect of the industrial concern commenced before making of an application by the Bank under section 39(1), the Bank cannot claim any preference over other creditor of the concern unless it is conferred on it by or under any other law.
13. ' It is true that in terms of section 39 (1) of the Ordinance, the application is to be filed by the Bank before the District Judge concerned but as in the Karachi District, the original civil jurisdiction in respect of matter exceeding certain valuation is exercised by the High Court, the application is to be filed before the High Court. This, however, does not mean that the High Court while hearing the application under section 39 of the Ordinance acts as District Court. Mr. S.S. Pirzada, has relied on the case of Firdous Trading Corporation v. Japan Cotton and General Trading Company Ltd. (PLD 1961 (W.P.) Karachi 565) in support of his contention that the High Court while dealing with the application under section 39 of the Ordinance acts as a District Judge. No doubt Firdous Trading Corporation was referred with approval by this Court in Pakistan Fisheries Ltd. v. United Bank Ltd.
14. (PLD 1993 SC 109). But these cases are distinguishable. Firstly the view expressed by a learned Single Judge in Firdous Trading Corporation (supra) was dissented to by a learned Division Bench of the same Court in the case of Haji Razzaq v. Usman (PLD 1975 Kar. 944). The dissenting view of the Division Bench of Karachi High Court in Haji Razzaq v. Usman was not brought to the notice of this Court, when it referred with approval the observations of learned Single Judge in Firdous Trading Corporation's case in Pakistan Fisheries Ltd v. U.B.L. Apart from it, in Firdous Trading Corporation's case the point for consideration before the learned Single Judge was whether ad valorem court-fee is payable or not on the memorandum of appeal filed under letters patent against the judgment of Single Judge passed in exercise of the ordinary Civil Jurisdiction Act. In any case, Firdous Trading Corporation's case was decided on 24-4-1961 while subsection (11) was substituted in 1965 by Ordinance 19 of 1965. After substitution of subsection (11) of section 39 (ibid), the appeal against an order passed under subsection (7) or subsection (9) of the Ordinance lies to the High Court within 30 days of the date of the order if the order is passed by the District Judge but where the order is made by a Judge of the High Court exercising original civil jurisdiction. The appeal lies to the Court to which the appeal lies from the order of such Judge. It is, therefore, quite clear that an appeal against the order of a learned Single Judge passed on an application under section 39 (7) or (9), would lie before a Division Bench of the High Court in terms of section 39 (11) of the Ordinance read with section 3 of Law Reforms Ordinance, 1972. Mr. S.S. Pirzada, however, contended that the order passed by the learned Single Judge was neither covered by subsection
(7) nor subsection (9) of section 39 of the Ordinance and, therefore, no appeal was competent against such an order.
15. ' It is true that the order accepting the offer made by appellants for purchase of the properties of the hospital neither fell under subsection (7) nor subsection (9) of section 39 of the Ordinance and therefore, such an order may not be appealable under section 39 (11) of the Ordinance. However, this does not mean that against such an order no appeal at all was competent. Subsection (10) of section 39 (ibid), provides that the order of attachment or sale of the property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of property in execution of a decree, as if the Bank were the decree-holder. It is, therefore, quite clear that the order of the Court accepting the offer ibid in respect of the property put to sale by the Court would be regulated in accordance with the 'provisions of Code of Civil Procedure, 1908. It cannot be disputed that the order, dated 14-12-1993 was passed by the learned Single Judge in exercise of his original civil jurisdiction . Mr. A.H. Pirzada, the learned counsel for respondent No. 1 rightly contended that the right of appeal against such an order was available under section 15 of Ordinance X of 1980 which reads as follows:-- "15 Appeal to High Court in certain cases.---Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."
16. ' The fact that under subsection (11) of section 39 of the Ordinance, an appeal is provided only against an order passed under subsections (7) and (9) of section 39 does not mean that against an order not covered by subsection (7) or subsection (9) no appeal would be competent. There is no provision under the Ordinance which prohibits filing of appeal against the order which is otherwise permissible under any other enactment. In the absence of any specific provision prohibiting filing of appeal against the orders passed under section 39 of the Ordinance, the general provisions contained under Ordinance. X of 1980 providing for an appeal from an interlocutory order passed by a learned Single Judge of the High Court would be clearly available to a party. Since the order accepting bid of appellants was interlocutory in nature, in our view, the appeal was competent before Bench of the High Court as provided under section 15 of Ordinance X of 1980. The contention of Mr. S.S. Pirzada that as the order was passed by the learned Judge in Chambers accepting the bid offered by appellants as a District Judge, the appeal before a Bench of the High Court was not maintainable, has not impressed us. If the contention of the learned counsel for the appellants is accepted then an order passed by the learned Single Judge of the High Court in exercise of his original civil jurisdiction would be immune from attack and against that no redress would be available to an aggrieved party. This contention also does not find support from the amended provision contained in subsection (1) of section 39 (ibid). We are, therefore, of the view that the order dated 14-12-1993 passed by the learned Judge in Chambers accepting the bid offered by the appellants was an order passed in the course of execution of a decree and therefore, both in terms of section 3 of Law Reforms Ordinance and section 15 of Ordinance X of 1980 an appeal against such an order was maintainable. Having dealt with the question of maintainability of the appeal filed by respondent No.1 before H.C.A. Bench of the High Court, we now take up the case on merits.
17. ' It is an admitted position in the case that the properties of the hospital were offered for sale through auction/ invitation of bids and the notice for such a sale was published in the paper on 26- 4-1993 showing the reserve price of the hospital as Rs.2,50,00,000 but no offer was received by the Official. Assignee in response to the above advertisement. The parties, however, requested the Court to re-advertise the properties for sale with reserve price of Rs.3,50,00,000 instead of Rs.2,50,00,000 which was earlier fixed at the time of first advertisement. The Court accepted this proposal and the property was advertised for sale on 11-8-1993 for the 2nd time with reserve price of Rs.3,50,00,000. In response to the 2nd advertisement, only appellant No.1 gave bid of Rs.2,27,00,000 within time. After expiry of the period fixed for submission of bid, another offer was received by the Court offering Rs.2,32,00,000. The Court, however, did not accept the offer of Rs.2,27,00,000 made by appellant No.1 on the ground of its inadequacy while 2nd offer of Rs.2,32,00,000 was rejected by the Court on the ground that it was submitted by the party after expiry of the period fixed for submission of the bid. The 3rd auction notice was thereafter issued filing the reserve price of the properties as Rs.2,75,00,000 on 15-11-1993. In-response to the 3rd advertisement, only appellants made a bid of Rs.2,32,25,000 for the properties of the hospital. The Official Assignee forwarded the bid of the appellants to the Court under his reference for acceptance and also applied for urgent hearing of the reference. The Court, however, declined the request on the ground that there was no urgency for hearing of the reference of Official Assignee.
18. Thereafter, the Official Assignee in the normal course forwarded the bid received by him to the Court for consideration and supplied copies of his reference to the Court, to all the parties. The letter sent by Official Assignee forwarding his reference to parties, however, did not indicate the date of hearing of the reference. From the record placed before us, it appears that the above reference was fixed before the learned Single Judge as a motion case on 14-12-1993. The cause-list, however, did not mention the names of other counsel of the parties. It it, therefore, quite clear that the reference Of Official Assignee was fixed before the Court on 14-12-1993 only for orders. The Court, however, on this date accepted the offer made by the appellants. From the order confirming the sale, it appears that at the time the above reference was taken up by the Court, the counsel for the Bank, the auction-purchaser and the hospital were present before the Court. The counsel for respondent No.1, who was one of the parties in the case, was, however, not present. The learned Judge accepted the bid offered by the appellants on the ground that the earlier 2 auctions failed to attract any bid. The counsel appearing for the hospital at the time of confirmation of the bid made by the appellants requested the Court to grant him further time to secure a better offer but the learned Judge declined to grant him time, on the ground that the earlier attempt to sell the properties failed to attract any bid. After confirmation of the bid, the appellants deposited balance of the sale price and after allowing fee claimed by the Official Assignee, by its order dated 11-1-1994, the possession of the hospital and the properties was handed over to the auction-purchaser on 22-1-1994. In the appeal filed before the High Court against the order of learned Single Judge accepting the bid, respondent No.1 complained that the confirmation/acceptance of the bid by learned Single Judge on 14-12-1993 was without notice to them which caused serious prejudice as respondent No.1 would have made higher bid than that which was offered by the appellants. From the order passed by the Hon'ble H.C.A. Bench, however, it appears that the only circumstance which persuaded the learned Judges of the Division Bench to set aside the order passed by the learned Single Judge was, that the confirmation/acceptance of the bid offered by the appellants was in disregard of the consent order dated 15-9-1993 passed in J.M. Of 1992, which directed that J.M 84 of 1990 and J.M 19 of 1992 will be heard together. The order dated 15-9-1993 relied by the learned Division Bench in the impugned judgment, reads as follows:-- "Learned counsel for the parties have pointed out that there is another petition i.e. J.M No. 84 of 1990 filed by I.D.B.P., respondent No.9 for the sale of the property of the respondent No.8 and several orders have already been passed in that petition. In the circumstances the learned counsel for the parties request that this case may be fixed for hearing along with the said petition. Accordingly by consent of the learned counsel for the parties the office is directed to fix this petition for hearing along with the said J.M. No.84 of 1990."
19. ' From the above order, it is quite clear that on 15-9-1993 J.M. 19 of 1992 filed by respondent No.1, was fixed for regular hearing before the learned Single Judge. However, instead of proceeding with that case it was stated before the Court by the learned counsel for the parties jointly that J.M. No.84 of 1990 filed by the Bank, wherein several orders were passed for sale of the properties of the hospital be fixed for hearing along with J.M. No. 19 of 1992. The learned Company Judge, accordingly, by consent of the learned counsel for the parties directed the office to fix J.M. No. 19 of 1992 (which was filed under section 290 of the Companies Ordinance) along with J.M. No. 84 of 1990 (which was filed under section 39 of the Ordinance). From the order sheet produced before us it appears that J.M.
20. No. 19 of 1992 came up for hearing before the Court on 15-10-1993 but it was adjourned to 26-10- 1993 by consent of both the parties. On 26-10-1993, it appears that both J.M. No. 84 of 1990 and J.M.
21. No.19 of 1992 were fixed before the learned Single Judge. In J.M. No. 84 of 1990, two references of Official Assignee were fixed. The learned Judge in the first reference rejected the offer made by appellant No.1 for Rs.2,27,00,000.00 and in the second reference found that the offer of Rs.2,32,00,000.00 made by Mehran Motors was not within time and therefore, rejected the same and directed re-advertisement for sale of the properties of the hospital fixing the reserve price at Rs.2,75,00,000. However, when J.M. No.19 of 1992 was taken up by the Court after disposing of the references of Official Assignee in J.M. No. 84 of 1990, it was found that the learned counsel for the respondents had left the Court and it was noted that it was apparently under the impression that the hearing had been concluded in the cases which the learned Judge did not find to be a correct impression. Accordingly, both the cases were adjourned to 4-11-1993. On 4-11-1993 both the cases were fixed before the learned Judge but were adjourned to 6-12-1993 by consent of the parties. It appears that in the meanwhile, respondent No.1 moved two applications in J.M. No. 19 of 1992 which came up for hearing before the learned Single Judge on 24-11-1993 but these applications were rejected. On 6-12-1993 both J.M. No. 19 of 1992 and J.M. No. 84 of 1990 were fixed in Court. There were some miscellaneous applications filed in J.M: No. 19 of 1992 but they were not pressed and, therefore, they were dismissed. After dismissal of the miscellaneous applications, a request was made on behalf of the counsel for respondent No.1 for adjournment which was granted and the case was accordingly, adjourned. From the above facts, it is quite clear to us that J.M. No. 84 of 1990 which was filed by the Bank for sale of property of the hospital, had no direct nexus with J.M. No. 19 of 1992 which was filed by respondent No.1 against other directors of the company. The subject- matter of two J.Ms. Being quite distinct and separate, the learned counsel for the respondent No.1 is unable to point out any prejudice having been caused to her on account of disposal of J.M. 84 of 1990 in the manner stated above. It is admitted before, thus, that the properties belonging to the hospital were put to sale as a result of the application filed by the Bank to recover its dues. J.M.
22. No.19 of 1992 under section 290 of the Companies Ordinance was admittedly filed by respondent No.1 after the sale of the properties was ordered in J.M. 84 of 1990. It is also not denied that no attempt was made by respondent No. 1 to stop the sale of the properties under J.M. 84 of 1990 after filing of J.M 19 of 1992. It cannot be denied that the controversy raised in J.M. 19 of 1992 did not concern the Bank which was petitioner in J.M. 84 of 1990 and no relief could be granted in J.M.
23. 1.9 of 1992 against the Bank. We are, therefore, unable to understand as to how in these circumstances, the respondent No. 1 could be prejudiced by passing of the order for confirmation of sale in J.M. 84 of 1990. The contention of the learned counsel for respondent No.1 that if his client would have succeeded in her application filed under section 190 of the Companies Ordinance the Court could have ordered sale of the majority share to respondent No.1, is merely conjectural. There is nothing on the record to show that the Bank was willing to drop the proceedings initiated under J.M. No. 84 of 1990 or that it was willing to enter into any separate arrangement with respondent No. 1 over the head of other shareholders of the company. In our view, the success or failur of J.M.No. 19 of 1992 filed by the respondent No. 1 had little bearing on the proceedings initiated by the Bank against the Company and its shareholders for recovery of its dues. No doubt, it was argued before the learned H.C.A. Bench by the respondent No.1 that the confirmation of sale had taken place without hearing them but in our view this fact was of little consequence as firstly, the order accepting the bid of appellants was passed in the presence of the counsel for the hospital, the Bank and the auction-purchaser. Secondly, the respondent No.1 having been informed about the offer made by the appellants, by the Official Assignee failed to file any objection against the bid made by the appellants and, therefore, she could not claim that any prejudice was caused to her by the acceptance of the bid by the Court. Thirdly, respondent No. 1 neither placed any better offer before the H.C.A. Bench nor before this Court to demonstrate that the properties could be sold for a better price. Fourthly, the possession of the properties has already been handed over to the appellants as late as in 1994 and it will be inequitable now to set aside the auction at this stage when they had parted with the whole of the sale price. The learned Judge in Chambers gave very cogent reasons for confirmation of the bid offered by appellants. In these circumstances, it would only be an exercise in futility if the case is sent back again to the learned Single Judge for re- consideration of the offer made by the appellants for purchase of the properties of the hospital. We have been informed during the course of hearing of above appeal that the amount deposited by the appellants towards the sale price of the properties was invested by the Official Assignee in an interest bearing account and by now the amount is well over three crores, which is sufficient to meet the liability of the hospital. In these circumstances, we are of the view that no prejudice has been caused to respondent No.1 by accepting the offer made by the appellants. We, accordingly, allow the above appeal, set aside the order of learned Division Bench and restore that of the learned Single Judge of High Court of Sindh. There will, however, be no order as to costs.