' MIAN HAMID FAROOQ, J.---Messrs Ali Paper and Board Industries Limited etc., the appellants/judgmentdebtors, through the filing of the present appeal, under section 18 of the Non- performing Assets and Rehabilitation of Industrial Undertakings (Legal Proceedings) Ordinance, 2000 (hereinafter referred to as Ordinance, 2000), have called in question order dated 16-1-2002, whereby the learned Single Judge of this Court, acting as an executing Court, confirmed the sale of the property/assets, consisting of Paper Mill, situated at 27-K.M. LahoreSheikhupura Road (hereinafter referred to as property in question), statedly, belonging to appellant No,1 in favour of respondent No,3.
2. Brief facts culminating to the institution of this appeal are that pursuant to the filing of a suit for the recovery of Rs,142,959,931 (C.O.S. No,107 of 1997), by respondent No,1, against the appellants and respondents Nos,4 to 13, this Court, in exercise of its original banking jurisdiction, on 3-3-1998, passed a decree of the aforenoted amount together with the liquidated damages and costs.
Consequent thereto, on 15-9-1998, respondent No,1 filed an execution application (Exh. A. No,43-B of 1998), before this Court, and during the course of execution proceedings, although the property in question was put to auction under the orders of this Court, yet the sale could not be accomplished.
After the promulgation of Corporate and Industrial Restructuring Corporation Ordinance, 2000 (Ordinance No, L of 2000), respondent No,2 acquired the interest of respondent No,1 and thereupon the proceedings were undertaken under Ordinance, 2000, with respondent No,1, as one of the parties duly represented before the Court. The learned executing Court, in exercise of its powers under Ordinance, 2000, while approving the auction schedule, allowed the Court Auctioneer to auction the property in question and directed him to submit his report at least one week before the next date of hearing, vide order dated 6-12-2001. In obedience to the aforesaid directions, the learned Court Auctioneer conducted the sale/auction, on 29-12-2001, consequent thereto respondent No,3 was declared to be the successful bidder with an offer of Rs,33 million and accordingly he submitted his report, on 14-1-2002. After the receipt of the report, the learned Single Judge of this Court, acting as an executing Court, confirmed the sale in favour of respondent No,3, vide order dated 16-1-2002, hence the present appeal.
3. The learned counsel for the appellants has contended that under section 5 of Ordinance 2000, the provisions of Code of Civil Procedure are applicable in the matter of execution of decrees and as the learned executing Court confirmed, the sale/auction before the expiry of a period of thirty
(30) days, within which, the petition under Order XXI, rule 89 or 90, C.P.C. Could have been filed, therefore, the impugned order is not sustainable in law. On the other hand, the learned counsel for respondents Nos,1 and 2 and the auction-purchaser has contended that the provisions of C.P.C. Are not applicable in the instant case and under section 10(5) of Ordinance, 2000, this Court is' fully empowered to confirm the sale.
4. To our mind the controversy, which has emerged, from the respective contentions raised by the learned counsel, for determination, is as to whether the provisions of Code of Civil Procedure are applicable in the matter of execution of the decrees including the sale/auction, conducted under the provisions of Ordinance, 2000. Section 5 of Ordinance, 2000, provides that the High Court, under this Ordinance, shall follow the procedure as nearly as possible, as provided in the Code of Civil Procedure. For ready reference, relevant portion of section 5 of Ordinance, 2000, is reproduced below:--
5. "Procedure and power of High Court.---Subject to the provisions of this Ordinance, the High Court under this Ordinance shall--
(i) in exercise of its civil jurisdiction,--
(a) follow the procedure, as nearly as possible, provided in the Code of Civil Procedure, 1908 (Act V of1908): ' Provided that the High Court may, in its discretion, having regard to the facts of the case, follow the summary procedure, as nearly as possible, provided for in Order XXXVII in the First Schedule to the said Code; and
(b) have all the powers, including passing of decree and its execution, as vested in the Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); and ' Section 6(1) of Ordinance, 2000, inter alia, provides that the proceedings for the execution of the decree pending in any Court constituted under Act XV of 1997, shall stand transferred to the High Court having jurisdiction under this Ordinance. Section 8(1) provides that all suits and legal proceedings, including execution proceedings, which stood transferred to the High Court in pursuance of section 6 shall be decided and disposed of by the High Court in accordance with the provisions of respective law. Section 8(4) of Ordinance, 2000, envisages that any right available to a Banking Company or the borrower under Act XV of 1997 or the Companies Ordinance, 1984, or Ordinance IX of 1984, shall be available to the Corporation or the obligor, as the case may be, under this Ordinance. Section 10(5) of Ordinance, 2000, prescribes that the sale of the collateral or any part thereof by the corporation pursuant to subsection (3) shall be either by public auction or inviting sealed tenders subject to the orders of confirmation by the High Court.
5. In the instant case, the execution petition stood transferred to this Court under Ordinance of 2000, by virtue of section 6(1) of the said Ordinance, the learned Single Judge of this Court undertook the execution proceedings and proceeded with the execution application in accordance with the provisions of Ordinance, 2000, therefore, undisputedly the learned executing Court dealt with the execution proceedings under the provisions of Ordinance, 2000.
6. This Court in a case reported as Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC 512, while dilating upon the identical controversy with regard to Banking Companies (Recovery of Loans) Ordinance No, XIX of 1979, qua the Code of Civil Procedure, has held as under: "Reading sections 4(1) and 141, C.P.C. Together the position that emerges clearly, is that while exercising its civil jurisdiction the Special Court has to follow the procedure laid down in regard to the suits in the C.P.C. Except to the extent any contrary provision is made in the special enactment.
Therefore, wherever the provisions of the Ordinance are repugnant to the provisions of the C.P.C., the former will override the latter. To that extent the general provisions of C.P.C. Will give way to the contrary provisions of the Ordinance which will take over to the extent of the repugnancy."
' It flows from the above that whenever the provisions of special enactment are inconsistent with the provisions of C.P.C., in that case, the provisions of special law would be applicable and if special law does not provide any procedure in respect of a given situation, then, of course, the provisions of C.P.C. Would be attracted.
7. Now coming to the present case. Although section 10(5) of Ordinance, 2000, provides that the sale would by subject to the order of confirmation by the High Court, yet it does not provide other details/procedure, as to how the objection petition is to be filed, by whom, within which period and as to when and how the sale is to be confirmed. All these details and procedure has been provided in the provisions ranging from rules 82 to 92 of Order XXI, C.P.C. In this respect, we do not find any inconsistency or contradiction between the provisions of Ordinance, 2000 and C.P.C. Applying the yardstick laid down in Hudaybia Textile Mills' case (ibid), we are of the view that the provisions of C.P.C. Would be applicable in the matter of execution of decree and filing of objections etc. To the sale/auction, conducted under the provisions of Ordinance, 2000 and also regarding confirmation of sale.
8. Having said that, now we would deal with the question about the confirmation of sale by the learned executing Court. Admittedly, the Court Auctioneer conducted the sale/auction of the property in question, on 29-12-2001, he submitted his report, on 14-1-2002 and the learned executing Court passed the impugned order, thereby confirming the sale favouring respondent No,3, on 16-1-2002. In view of our findings given hereinbefore, we have held that in the absence of the procedure about the confirmation of the sale etc. Under Ordinance, 2000, the procedure provided in the Code of Civil Procedure would obviously be applicable. The provision, which deals with the confirmation of sale in the C.P.C. Is Order XXI, rule 92. For ready reference the said provision of law is reproduced below:-- "92.---(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.
(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale: ' Provided that no order shall be made unless notice of the application has been given to all persons affected thereby
9. Provisions of Order XXI, rules 89 and 90, C.P.C. Provide that where an immovable property has been sold in execution of a decree, any person, mentioned in the said rules, can file an objection petition seeking setting aside of sale within the parameter laid down under the said provisions of law. The fact remains that after the sale of the property, the persons interested are entitled, under the law, to file an objection petition thereby challenging the said sale. Article 166 of the Limitation Act provides a period of thirty (30) days from the date of the sale for filing an application under the Code of Civil Procedure to set aside the sale in execution of a decree, including any such application by the judgment-debtoRs, It flows from the joint reading of Order XXI, rules 89 and 90, C.P.C. And Article 166 of the Limitation Act that a person aggrieved from the Court sale can file an objection petition within a period of 30 days from the date of the sale thereby challenging the said sale. In this case, we find that the appellants, being the judgment-debtors, interested in the sale of the property and whose interests were affected by the sale, were declined a period, statutorily fixed, for filing the objection petition and before the expiry of a period of 30 days, the sale was confirmed in favour of respondent No,3. Undoubtedly, in the above perspective, we are of the view that in the present set of circumstances, the appellants were entitled at least to a period of 30 days from the date of the sale to file an objection petition, which right has, admittedly, been denied to them. The learned executing Court proceeded to confirm the sale, held on 2912-2001, on 16-1-2002; i,e, before the expiry of the period of thirty (30) days, thus, we are of the view that the impugned order is not sustainable in law. In the case of Hudaybia Textile Mills Limited (ibid), Honourable Apex Court of the country, while dilating upon the identical issue and about the confirmation of the sale has held as under:-- ' So far as the conditions of sale mentioned in the form in C.P.C., it is immaterial to expressly provide for confirmation of sale as a condition, because every party is deemed to know the law and under the C.P.C. a set procedure has been provided for confirmation of sale in Order XXI, rule 92. But still the argument was that the special provisions of the Ordinance conferred a discretion on the Court to adopt any manner deemed fit for execution of the decree requires to be considered. The argument was that the Court was not bound by the provisions of the C.P.C. To automatically confirm the sale, on the failure of the decree-holder to comply with the technicalities with regard to deposit of money as rovided by Order XXI, rule 89.
"10. In the above backdrop, we have examined the impugned order and find that the same is contrary to law, thus, not sustainable, hence we are inclined to set the same aside.
11. In view of the above, the present appeal is allowed and the impugned order dated 16-1-2002, is hereby set aside with no order as to costs. The result would be that the appellants, may file an objection petition, if they so choose, thereby challenging the sale, within a period of ten days from today and if such an application would be filed, the learned executing Court shall decide the same after hearing the parties and, of course, in accordance with law.