' NASEEM SIKANDAR, J.----This Execution First Appeal seeks to assail two orders of the Judge Banking Court-IV, Lahore, dated 19-3-2001 and 29-3-2001.
2. Through the first order the application of the appellant/judgment debtor under Order 21, rule 90 C.P.C. Filed on 15-1-2001 was rejected while by way of the second order, dated 29-3-2001 a direction was made to the bailiff of the Court under Order 21, rule 95, C.P.C. For delivery of possession to the purchaser Syed Moazam Ali Bukhari son of Syed Muratab Ali Bukhari. The subject-matter of auction sale completed at Rs,22,00,000 on 1-1-2000 being an industrial plot situated at Lahore Township Scheme, measuring 5 Kanals, 5 Marlas.
3. It is the case of the appellant/judgment-debtor that he enjoyed over draft facility of Rs,10,00,000 in 1994 from Messrs Habib Bank Limited against the security of the aforesaid plot. On account of his failure to discharge the liability a suit was filed on 31-3-1998 and ultimately a decree was passed in terms of the prayer at Rs,15,89,805 through a judgment and decree of the Judge Banking Court on 31-7-1998. Allegedly the application filed by the appellant to set aside the ex parte decree was rejected on the ground that it was not accompanied with an application under section 5 of the Limitation Act for condonation of delay.
4. The respondent/decree holder/bank filed an execution petition on 27-10-1998, on which Court auctioneer was appointed for auction of the mortgaged property. The Court auctioneer submitted his report on 25-1-1999 and the auction was said to be held on 8-2-1999. That exercise appears to have been undertaken for quite some time and finally the said industrial plot was disposed of to the aforesaid purchaser being the highest bidder at Rs,22,00,000 on 1-1-2000.
5. It is the case of the appellant that the schedule of auction was issued against the provisions of law without fixation of minimum price and that a number of objections taken by him in his objection petition were not properly addressed by the learned trial Court. It is repeatedly asserted that in fact a fraud was played upon the judgment-debtor inasmuch as his property worth Rs,2,57,00,000 was sold for Rs,22,00,000 only.
6. For the appellant it is admitted that the present appeal is barred by limitation. However, it is explained that after making of the aforesaid two orders the appellant approached this Court in Constitutional jurisdiction through West Pakistan 5644 of 2001 which was subsequently disposed of.
The present appeal was then filed after 10 days of the disposal of the writ petition. The time sought to be condoned includes the period taken in prosecuting the aforesaid Constitutional petition before this Court.
7. That prayer is resisted by the learned counsel for the respondent/purchaser. He contends that in the given situation filing of a Constitutional petition cannot be equinted with bona fide prosecution of a matter in a wrong forum, as contemplated in section 14 of the Limitation Act. To support these submissions learned counsel for the purchaser relies upon re. Abdul Ghani v. Ghulam Ahmad (PLD 1977 SC 102) Re. P.M. Amer v. Qabool Muhammad Shah and others, (1999 SCMR 1049) and Re. Raja Karamat Ullah etc. v. Sardar Muhammad Aslam Sokhara (1999 SCMR 1892).
8. Learned counsel for the appellant on the other hand seeks support from a judgment of this Court, in re. Brid. (Retd.) Manhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706). On merits learned counsel for the respondent/purchaser complains that the judgment-debtor is interested only in delay and it was on that account that even after three years from the passing of the judgment the matter has not come to an end and is still lingering on. The claim that property is worth ten times more than on which it was auctioned, is also disputed.
9. After hearing the parties we are not persuaded to agree that any fraud was committed in holding of auction or that the Executing Court in any manner went outside the limits prescribed by law. The alleged fraud in holding of auction proceedings has neither been specifically pleaded nor it is otherwise discernible from the proceedings. The proceedings on Constitutional petition cannot ordinarily be said to be proceedings before a forum without jurisdiction. At any rate the lapse of 10 days in filing of appeal after disposal of the Constitutional petition remains unexplained. The appellant has not given the date on which the Constitutional petition was filed. However, it is claimed that a stay was granted in his favour on 3-4-2001 while the petition was disposed of on. 4- 6-2001. The present appeal was filed on 14-6-2001. As mentioned above, the first impugned order was passed on 19-3-2001 which in fact is assailable through this appeal. The other order, dated 29- 3-2001 is neither appealable nor could be said to have properly been assailed by way of this appeal.
10. Therefore, neither on the petition for condonation of delay nor on merits we are satisfied that the appellant has a good case for our interference. All the more so, when the appellant never assailed the ex parte judgment and decree nor he challenged the dismissal of his application wherein setting aside of the ex parte judgment and decree, dated 31-7-1998 was prayed for. The objection of the appellant against non-mentioning of the minimum price is also hardly of any relevance inasmuch as the property in question was sold at a price more than the judgment and decree. Also is absence of any specific prejudice having been caused to the judgment-debtor, this objection cannot be entertained at this stage when admittedly it was not taken up before the executing Court.
11. Having said and done all, we are still of the opinion that the property sold in auction though not as valuable as alleged by the appellant could nevertheless fetch more price in the market. It is a common knowledge that properties sold through Courts do not fetch the market price for a number of reasons. The foremost amongst them being the shyness on the part of purchasers to involve themselves in transactions which entail proceedings before the Courts. It is an unfortunate reality which we must all accept.
12. At the time of arguments the learned counsel for the appellant has offered to pay the decretal amount as also interest on the total purchase price of Rs,22,00,000 which, according to the record was deposited on 15-1-2000 as directed by the Court. That proposal is not acceptable either to the purchaser or to the learned counsel appearing for the decree holder/bank. However, in order to protect the interest of both the judgment-debtor as well as the purchaser we are inclined to allow the appellant another opportunity to save this property. Obviously every owner of the property particularly the one in which he resides alongwith his family has a peculiar sentimental value for him. The investor/purchaser have not yet experienced that set of mind. Therefore, he cannot be equated with ' the judgment-debtor. Accordingly we direct the appellant/judgment-debtor to pay the decretal amount within thirty (30) days from today alongwith profit to be calculated till the date on which the payment is made. Also within a period of next thirty (30) days he will deposit before the Executing Court profit on Rs,22,00,000 calculated from 15-1-2000 till the date of its payment at the rate of 13%. This amount of deposited, shall be receivable by the purchaser.
13. In case the appellant fails to pay the aforesaid decretal amount alongwith its profits till the date of its payment, as also the aforesaid profit on the investment made by the purchaser, his appeal shall be dismissed both on account of bar of limitation as well as on merits.
14. In case he succeeds in making the aforesaid deposits within a period of thirty (30) days from today i,e, on or before 12-12-2001, the sale certificate in favour of the purchaser shall be cancelled and the purchaser shall be entitled to receive from the judgment-debtor all official and legal charges incurred earlier for obtaining the sale certificate.
15. Appeal disposed of in the above terms.