JAWWAD S. KHAWAJA, J.---This appeal impugns the order dated 8-2-2001 passed by the learned Judge Banking Court No.II, Faisalabad.
2. The facts of this case are straightforward. Muhammad Amin (respondent No.4) who is the son of the appellant Mst. Zainab Bibi, obtained a loan from Allied Bank respondent No.1. He was, however, unable to repay the same. As a result, the bank filed a suit for recovery against the aforesaid Muhammad Amin and others. Mst. Zainab Bibi, who had mortgaged her residential house No.356, Mohallah Piplanwala, Jhang measuring 7 Marlas, to secure the loan obtained by Muhammad Amin, was impleaded as a defendant in her capacity as a mortgagor.
3. The appellant and the other defendants filed an application seeking leave to appear and defend. The said application, however, was dismissed and as a consequence, a judgment and decree dated 7-10-1998 for a sum of Rs.3,19,191 was passed in favour of the Bank with costs.
The Bank filed an execution petition seeking sale of the aforesaid residential house of the appellant to satisfy the aforesaid decree. The property was purportedly auctioned on 1-3-2000. Abdul Latif respondent No.2 claims that he participated in the auction and made the highest bid of Rs.3,52,000.
4. The appellant, however, filed an objection petition to seek setting aside of the Court auction. It was averred by Mst. Zainab Bibi in the objection petition that she had never been served in the said petition. More specifically, it was stated that no notice under Order 21, rule 66, C.P.C. Had ever been issued to her. Finally, it was contended that no auction, in fact, took place at the site as alleged in the report of the Court Auctioneer.
5. The learned Banking Court summarily dismissed the objection petition vide order dated 8-2-2001 which is impugned in the present appeal.
6. We have heard counsel for the appellant as well as learned counsel for the auction-purchaser.
We have also gone through the record. It is clear from the order sheet of the learned Executing Court that indeed no notice under Order 21, rule 66, C.P.C. Was issued to the appellant. This is clear from the fact that there is no order directing the issuance of such notice. This circumstance establishes the contention of learned counsel that Mst. Zainab Bibi had-not been served. The notice under Order 21, rule 66, C.P.C. Is mandatory and the failure of an Executing Court to issue such notice constitutes material irregularity.
7. As to contention that no auction actually took place, we have noted, firstly, that the auction was advertised in the daily 'Soorat-e-Hall' dated 22-2-2000. The said newspaper, which is unknown, is in any event, published from Faisalabad. According to the High Court Rules, if a local newspaper is to be used for citation in any case, it should be a paper published in the same district in which the person desired to be served resides. In the present case, the appellant is undisputedly resident in Jhang Sadar and her property was also located in the same city. The advertisement of the auction sale in daily 'Soorat-e-Hall' also, therefore, constitutes material irregularity.
8. Furthermore, Mst. Zainab Bibi was residing in the house in question. This is clear even from the warrant through which possession of the house in question was handed over to the auction- purchaser Abdul Latif. It does not appear to be reasonable that Mst. Zainab Bibi would have delayed filing of her objection petition for more than four months had an auction actually taken place at the site.
9. For the foregoing reasons, we find that the alleged Court auction dated 1-3-2000 did not actually take place or even if it did take place, it suffered from material illegality --As a consequence, the said auction is set aside. Learned counsel for the appellant Mst. Zainab Bibi has undertaken that she would pay 5% over and above the bid amount of Rs.3,52,000 as a consequence of the setting aside of the auction sale. She is ordered to do the needful on the day possession of the aforesaid house is restored to her. This shall be done within 30 days from today.