Maulvi Anwarul Haq, J.--This judgment shall decide ICA No, 653/2000, ICA No, 654/2000 and ICA No, 655/2000 as these proceed against a common judgment dated 1.9.2000 of a learned Single Judge, in Chamber, of this Court, whereby W.P. No, 17222/2000, W.P.No, 17223/2000 and W.P. No, 17224/2000, filed by the appellants were dismissed.
2. These ICAs came up before the Court on 2.10.2000 when learned counsel for the appellants was called upon to address as to the maintainability of the ICAs. The matter was heard at some length on 12.3.2001 but further hearing was deemed necessary. Ultimately, these cases have been re- heard.
3. The facts necessary to be stated for the purposes of this judgment are that in suits filed by the respondent-Bank for recovery of money against the appellants in these cases decrees were passed by a learned Judge Banking Court-II at Lahore, on 22.1.1999. Some litigation ensued, the details whereof are not required to be stated here. The decrees were put into execution on 22.10.1999. Vide order dated 16.2.2000 the mortgaged properties were ordered to be sold. The decree holder-Bank was granted permission in terms of Order XXI, Rule 72 CPC to participate in the sale through auction. The properties were knocked down to the decree holder-Bank in the said auction held on 13.4.2000. In the first instance the appellants filed applications under Order XXI, Rule 90 CPC for the setting aside of the sale. On 28.6.2000, the Executing Court directed the appellants to deposit 20% of the sale price in Court before 17.7.2000. The appellants filed applications that they be permitted to furnish security instead of cash deposit. These applications were dismissed on 20.7.2000. Thereafter the appellants filed applications under Section 47 CPC for setting aside of the sale. These applications were dismissed on 5.8.2000, the said writ petitions were filed for setting aside of the said order dated 5.8.2000, which have been dismissed, vide the impugned judgments.
4. Mian Nisar Ahmad, learned counsel for the appellants, contends that the said order dated 5.8.2000 dismissing the applications of the appellants under Section 47 CPC would not be appealable. The contention is that the applications have not been decided on their merits and as such no appeal would lie against the said order. The relies on the case of Barkat Ram, General Manager, Bharat National Bank Ltd. v. Sardar Bhagwan Singh (AIR 1943 Lahore 140), a Full Bench judgment of this Court. Mr. Jawad Hassan, learned counsel for the respondent-Bank, on the other hand, says that by means of the said orders the applications filed under Section 47 CPC were dismissed and this order would be appealable under Section 104(ff) CPC. Also points out that the said earlier order under Order XXI Rule 90 CPC is also appealable under Order XLIII, Rule 1 (i) CPC. He relies upon the cases of M. Abdullah v. Deputy Settlement Commissioner (PLD 1985 SC 107) and Karim Bibi u. Hussain Baksh (PLD 1984 SC 344).
5. We have given some thought to the respective contentions of the learned counsel and have examined the files of the writ petitions with their assistance. Now the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 reads as follows :-- "Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order." There is no manner of doubt in our mind that the original order in these cases is the said order dated 5.8.2000 passed by the learned Executing Court dismissing the applications filed by the appellants under Section 47 CPC praying that the auction dated 13.4.2000 be set aside for the reasons stated therein. Now the learned counsel for the respondent has very rightly pointed out that this is an order, which is appealable under Section 104(ff) CPC. Now coming to the said contention of Mian Nisar Ahmad, based on the said Full Bench judgment of this Court, we deem it necessary to state here the facts of the said case. A money decree passed by a learned Senior Subordinate Judge, Ambala, was sought to be executed. The file was, however, consigned with the decree remaining unsatisfied. The decree was then assigned and the assignee filed an application before the said learned Judge of Ambala for transfer of the decree to Dehli. A transfer certificate was issued and it was addressed to the Senior Subordinate Judge at Dehli. Their Lordships pointed out that this was wrong as the Certificate had to be addressed to the District Judge, Dehli. Be that as it may, the said judge at Dehli commenced the execution proceedings and the property of the petitioner before their Lordships was attached and then sold. The petitioner filed objections, which were dismissed by the Executing Court. The case was, however, remanded and inquiry was conducted. We may note here that these objections were relatable to the manner of publishing and conduct of the sale. After the completion of the inquiry and hearing of arguments, the said petitioner presented an application under Section 47 CPC raising two new objections. First to the jurisdiction of the Dehli Court to execute the decree because of the defect in the Transfer Certificate and second that the execution application was time barred. The learned Executing Court refused to entertain the said two objections on the ground that these are belated and over ruled earlier filed objections to the proclamation and conduct of sale. The sale was confirmed. The said petitioner then filed an appeal in the High Court. A learned Single Judge held that because of the said defect in the Transfer Certificate all the proceedings in the Dehli Court were null and void.
The plea of limitation was rejected. On merits, it was found that the proclamation was defective.
The execution application was accordingly dismissed. An LPA was filed by the decree holder. Now the said learned LPA Bench remitted back the case to the Executing Court for issuance of a fresh proclamation of sale and taking further proceedings in accordance with law. Following findings were recorded :-- (i)The proceedings of Dehli Court did not suffer from any inherent lack of jurisdiction but merely an irregularity ; (ii)The plea of limitation could not have been allowed to be raised; and (iii)The proclamation for the sale was materially defective.
The said judgment debtor filed an application for leave to appeal to the Privy Council, which was heard by the Full Bench of this Court. According to the majority (Tek Chand and Bhide JJ.) an appeal against the said order was not competent. All the three Hon'ble Judges held that all orders under Section 47 CPC are not appealable. The reasons recorded by the majority for holding that appeal was not competent were that the sale had been set aside. The proceedings were found to be with jurisdiction and the result was that the process of execution commenced and as such continued and this would be an order not falling in the category of either a final adjudication with reference to a decree or a final order appealable in terms of Section 96 or Sections 109/110 CPC respectively.
6. An examination of the said judgment being relied by learned counsel for the appellants would, thus, show, that nothing turns in favour of the appellants with reference to the said judgment. In the present case, the effect of the dismissal of the applications under Section 47 CPC is that the objections against the sale having been set aside and nothing remains to be done by the Executing Court after having confirmed the said sale. Thus, the process of execution stands terminated so far as the said properties of the appellants are concerned, as also of course, their rights. title or interest therein are concerned. It is true that the order dated 5.8.2000 does not decide the merits but still it dismisses the applications under Section 47 for the reasons stated therein i,e, that it was incompetent or was not maintainable. Now this decision of the learned Executing Judge has been made subject to an appeal under Section 104(ff) CPC. This being so, the case squarely falls within the mischief of said proviso to Section 3(2) of the Law Reforms Ordinance, 1972 and these present ICAs would not be competent 7. We, therefore, do find that the ICAs are not competent and accordingly dismissed all the three ICAs. No orders as to costs.