1. ' ANWAR ZAHEER JAMALI, J.--- This first appeal calls in question an order, dated 1-5-1999 passed by the Banking Court No,III, Karachi (hereinafter referred as Trial Court ) in Execution Application No,91 of 1997 thereby dismissing an application of the appellant/decree-holder, dated 1-5-1999 for withholding auction process of the mortgage properties.
2. ' The relevant facts of the case are that a suit for recovery of amount filed by the appellant bank, being Suit No,170 of 1996 was decreed by the trial Court on 25-4-1997. The judgment-debtors in the suit i,e, respondents Nos.1 to 7 in this appeal, did not prefer any appeal against the judgment and the decree of the trial Court. The appellant filed execution application before the trial Court praying therein for attachment and sale of the two mortgaged immovable properties of the judgment- debtors viz. Flat No,H-3 UK Apartment Phase II, Plot No,FL-5, Scheme No,24, Block 14, Gulshan-eIqbal, Karachi and industrial Plot No,636 Survey Nos.35-P/1, 6/13, S.I.T.E., Karachi. The trial Court put both these properties to open public auction several times and on receipt of highest bid of Rs,12,30,000 for the plot with deposit of 25% of bid money on the spot, vide order, dated 24-4-1999 confirmed the auction of the plot in favour of the respondent No,9 and on receipt of highest bid of Rs,8,00,000 for the Flat with 25 pre cent. Payment of bid money on the spot, confirmed the sale of Flat in favour of respondent No,8 on 6-5-1999.
3. ' On 1-5-1999 the appellant/decree-holder moved an application before the trial Court with the prayer that further process of auction of mortgaged properties may be withheld.
4. ' The trial Court after hearing the learned counsel for the appellant/decree-holder summarily rejected this application of the appellant on the same day which is impugned in this appeal.
5. ' We have heard Mr. Aijaz Ahmed, Advocate for the appellant, Mr. Akhtar Hussain, Advocate for the respondent No,9 and respondent No,8, Mir Saifullah Khan in person. The respondents Nos.1 to 5 who are judgment-debtors before the trial Court, though served as, per bailiffs endorsement, have chosen to remain absent.
6. ' The learned counsel for the appellant has contended that decree-holder bank has received an' application for settlement from the respondent No,6 wherein he has offered to pay a sum of Rs,50,00,000 as full and final payment to settle the entire loan liability of the decree under execution and such matter is under process of settlement with the appellant/decree-holder bank and for this reason the decree-holder has moved the trial Court for withholding further process of auction of the mortgaged properties. The learned counsel further contended that such offer made by the respondent No,6 clearly indicated that both the mortgaged properties were auctioned at a much lower price and in such circumstances, the trial Court was not justified in either accepting the highest bids given by respondents Nos.8 and 9 or confirming the same in their favour in support of his contention the learned counsel has placed reliance on the case of Messrs Dawood Flour Mills and others v. National Bank of Pakistan 1999 M LD 3205.
7. ' On the other hands Mr. Akhtar Hussain the learned counsel for respondent No,9, the auction purchaser of the mortgaged plot, has controverted these contentions and strongly supported the impugned order passed by the trial Crist, he contended that the appellant has not disclosed the relevant facts in this appeal about the proceedings in the execution application before the trial Court. The learned counsel referred before us the counter-affidavit of the respondent No,9, Mr. Liaq t Ali and the documents annexed with the counter-affidavit as Annexures "R-1" to "R-4" filed in this appeal to unveil the facts and submitted that the respondents Nos.8 and 9 had given the highest bid in open public auction, they had paid 25 per cent. Of the bid money on the spot and had also deposited the balance 75% amount of their highest bids within the time as provided under law, sale in favour of the respondent No,9 was confirmed by the trial Court. On 22-4-1999 and after completion of all other formalities sale certificate was also issued in his favour on 30-4-1999. It is, thereafter, that a baseless application was moved by the decree-holder bank for withholding of further auction proceedings with ulterior motive. The respondent No,9 after the delivery of possession of plot to him has invested more than 15,00,000 over it by applying machinery, men and material and in such circumstances, the application moved by the appellant before the trial Court was misconceived and was rightly dismissed. In support of his case the learned counsel has placed his reliance on the case of Hudaybia Textile Mills Ltd. And another v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC 512.
8. ' Mir Saifullah Khan, the respondent No,8 in his arguments submitted that in open auction he had given the highest bid of Rs,7,80,000 for the flat but on persuasion he had enhanced his offer to Rs,8,00,000 and paid 25 per cent. Of the bid money on the spot and also deposited the remaining 75 per cent. Amount within the stipulated period. Sale of flat in his favour has been confirmed on 6- 5-1999 in presence of the representatives of the appellant bank and in such circumstances the impugned order of the trial Court is justified and this appeal is liable to be dismissed.
9. ' We have carefully considered the arguments advanced by the learned counsel for the parties and carefully perused the material placed on record. It is an admitted position that after passing of decree in the suit on 25-4-1997 the respondents Nos.1 to 7 neither challenged the same in appeal nor approached the appellant/decree-holder for any settlement in the matter. After filing of execution proceedings by the appellant/decree-holder in the year 1997 the process of execution of decree continued for a considerable time during which period the two mortgaged properties of the judgment-debtors were put to auction several times and for such auction wide publicity was made through various newspapers. The reserved price of the two properties was fixed in presence of the learned counsel for the appellant/decree-holder which was not objected by him. The respondent No,9 himself twice participated in the auction proceedings held on 28-3-1999 and 13- 4-1999 and gave the highest bid of 12,30,000 in presence of the representative of the appellant/decree-holder bank which at the time of confirmation was not opposed or objected by the appellants representative. The payment of whole bid money has already been made by both the auction purchasers. Not only this but sale in favour of the respondent No,9 was confirmed by the trial Court on 22-4-1999 and even the sale certificate was issued in his favour on 30-4-1999 i,e, prior to the filing of application by the appellant before the trial Court .
10. ' The perusal of the contents of the application, dated 1-5-1999 moved by the appellant goes to show that the prayer made therein is not covered by any Rule of Order 21, C.P.C., which deals with the procedure for sale of immovable property by Court through auction. In our view once the mortgaged properties have been lawfully purchased by the highest bidders, and they have fulfilled all other legal formalities regarding payment of purchase price etc. Proceedings of such sale transaction can neither be withheld nor could be disturbed merely to accommodate the appellant/decreeholder and the judgment-debtor to negotiate for a settlement in the matter.
11. ' In the case of Hudabia Textile (supra) the Honourable Supreme Court has inter alia, examined the rights of an auction-purchaser in the matter of sale through Court and observed as follows:- "In this context the argument that since the Court was vested with the wide discretion to choose any mode of execution of the decree, it can likewise refuse confirmation of sale on any ground it chooses, is without substance. Judicial discretion vested by statutory provisions cannot be construed in such a manner as it will harm the Court with arbitrary powers and would inevitably destroy the public confidence in the stability of the judicial sales as pointed out by the American Jurisprudence. Therefore, on facts as well as on principle the learned Single Judge went wrong in refusing confirmation on the ground that after the sale and decree had been satisfied. Even otherwise once the Court had made up its mind to execute the decree by attachment and sale by public auction, as long as the order so directing was in the field, the discretion vesting in it under section 8(3) of the Ordinance stood exhausted and a particular course of proceedings was brought into motion which had to culminate in a result contemplated by legal principles, and this course could not be diverted on the assumption that the executing Court had discretion to choose any mode of execution. In the premises the question of confirmation was to be regulated either by the C.P.C. Or equitable principles under the provisions thereof or on general principles as pointed out above. From any angle the refusal of confirmation by the learned Single Judge is unsustainable and the auction purchaser was entitled, in the circumstances of the case to the confirmation of the auction sale."
12. In the instant case admittedly there are not allegations of any malpractice, irregularities or fraud in the process of auction conducted by the trial Court even the judgment-debtors have not come forward to question the legality of such auction proceedings. After payment of full bid money, and confirmation of sale, the auction purchasers have acquired valuable rights in the property which cannot be disturbed at this stage.
13. ' In the above circumstances we are of the view that the trial Court has rightly followed the guideline given by the Honourable Supreme Court of Pakistan in the case of Hudaibia Textile Mills Ltd. (supra) as the same is fully applicable and attracted to the facts and circumstances of this case, whereas the case-law referred by the learned counsel for the appellant is on different facts and is not applicable to the present case.
14. In view of the above no case for interference in the impugned order is made out and this appeal, which has no substance, is accordingly dismissed.
15. ' Foregoing are the reasons for our short order, dated 5-10-1999.