' MIAN SAQIB NISAR, J.---This is an execution appeal filed against the order dated 31-1-2003, whereby the objection petition filed by the appellants to the private sale of the mortgaged property, conducted by the respondent/ Bank and purchased by respondent No,2, has been dismissed.
2. Briefly stated the facts of the case are that the respondent/Bank obtained a decree against the appellants to the tune of Rs,41,33,542; the appellant had challenged this decree in appeal i,e, Regular First Appeal No,23 of 2002, which has been dismissed vide separate judgment of even date. It may be pertinent to state there that, in the decree, the learned Court, while passing the decree, has converted the same into execution proceeding under section 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001. Anyhow, the bank was required to file the "Fard Taleeqa" by the Court vide order dated 16-1-2002, which was duly filed, but without seeking the execution through the Court process; on 2-1-2002, the bank issued a public notice for the private sale of the mortgaged property; the appellants filed application under Order 21, rule 206 (sic) read with section 151, C.P.C. Dated 9-1-2002, seeking stay of the auction on the ground, that the reserve price fixed in the public notice i,e, Rs,45,00,000 is far below to the actual value of the property. This application remained pending when the property which was originally put for auction on 17-1-2002, could not be auctioned and re-auction notice was published by the respondent-Bank on 9-2-2002 for auction of the property and on 11-3-2002, the property had been auctioned on this date in favour of respondent No,2 by the respondent/Bank for an amount of Rs,46,000,00. The respondent/Bank did not inform the Court about the auction, rather on 9-4-2002, submitted the accounts of the sale. The appellants on 13-4-2002, filed objection, mainly taking up the plea that no auction took place on the said date and the proceedings in this behalf are fictitious and reserve price is inadequate, because earlier at the time of mortgage, the respondent/ Bank got the property evaluated from the surveyor for an amount of Rs,1,04,27,000, but now the auction has been allegedly made for inadequate amount of Rs,46,00,000. This objection petition was contested by the respondent-Bank, and also by the auction-purchaser and has been rejected by the learned Court on the following reasons:-- "I have heard the arguments of the learned counsel for the parties and have perused the record.
From the perusal of the record it is evident that the Judgment-Debtors filed the R.F.A. Against judgment and decree dated 10-12-2001 passed by this Court and alongwith it, they also moved an application for staying the execution proceedings. The photocopy of the order of Honourable Lahore High Court, Lahore dated 16-1-2002 which is available on the file. The relevant portion of the said order is hereby reproduced:--- "Subject to the deposit of the admitted amount of Rs,23,00,000, with the respondent-Bank, the execution of the impugned decree shall remain stayed."
' The petitioner failed to comply with the direction of the Honourable High Court and even till today he has not deposited even a single penny in order to liquidate his liability which reflects his mala fide. From the perusal of the auction report, it is obvious that the sale was conducted in accordance with law, no material has been placed on the record by the objector to show value of the mortgaged property as alleged by him in the objection petition, even otherwise mere inadequacy of sale price is no ground to set aside the sale. According to the law of the limitation the objector was required to file the objection petition within 30 days from the date of auction but the same was filed beyond the period of limitation and no application for condonation of delay has been filed by the objector alongwith objection/ petition.
3. We have heard the learned counsel for the parties. As far as the reasoning of the Court below, that the appellants had failed to comply with the order of this Court by not depositing the amount of Rs,20,00,000 suffice it to say that such order was only confined to the stay of the execution of the decree and if, the appellants have not deposited the amount, obviously, the execution could be carried on, but no mala fide can be attributed to the appellants on this account. The second reason of the Court, that from the perusal of the auction report, it is obvious that the sale was conducted in accordance with law and no material has been placed by the objector to prove otherwise, it may be held that, the grievance of the appellants is that, no sale was conducted at the site and all the proceedings in this behalf are fictitious and fraudulent. This question could not be resolved by the Court without framing of issues and enabling the parties to produce evidence. The report by . Itself was not so sacrosanct that on the basis of the same, the Executing Court could have rejected the objections of the appellants in this behalf.
4. With regard to the inadequacy of sale price, it is settled law that, mere inadequacy, by itself ordinary is no ground for setting aside the sale, but in the instant sale, the Bank at the time of mortgage had got the evaluation of the property for a sum of Rs,1,04,27,000. Thus, subsequently the fixation of the reserve price for an amount of Rs,45,00,000 by the bank itself without taking the Court in confidence and the sale for Rs,46,00,000 has some reflection on the bona fides regarding the conduct of the sale. Therefore, this aspect of the matter should have been considered by the Court on the basis of some material placed on the record by the bank to justify that the reserve price fixed by the bank in the circumstances was adequate and justified.
5. Lastly, for the question of limitation, it may be held that the sale by the bank as mentioned earlier, was private in nature. The appellants were not served with any notice about the auction. The Court was also not taken into confidence in this behalf. The bank did not inform the Court about the auction having been conducted and the property sold to the auction-purchaser, but only filed a statement of accounts on 9-4-2002, on the basis of which, for the first time, it was learnt by the appellants that the property has been put to auction. Therefore, when the appellants had taken up the objection that they were prevented by fraud committed by the bank from the knowledge of sale of the property by auction, the appellants shall be entitled to the benefit of section 18 of the Limitation Act and the limitation would commence from the date of knowledge and not from the auction, thus the application moved within about 4/5 days of the date of knowledge cannot be held to be out of limitation.
' In the light of above, this appeal is allowed. The case is remanded to the learned Executing Court with the direction to frame appropriate issues and after enabling the parties to produce evidence, decide the objection petition of the appellants afresh.