' MIAN HAMID FAROOQ, J.---The appellants/judgmentdebtors, through the filing of the present appeal, have called in question order, dated 9-7-2002, whereby the learned Banking Court dismissed appellants' objection petition, sale was confirmed and the sale certificate was ordered to be issued in favour of respondent No,2.
2. Briefly stated the facts leading to the filing of the present appeal are that pursuant to passing a decree, for the recovery of Rs,11,34,624 against the appellants and respondents Nos,3 to 6, the decree-holder initiated execution proceedings, during which property i,e, Shop No,47/48, statedly, belonging to the judgment-debtors was sold in open auction, conducted by the Court Auctioneer under the orders of the Court, which was purchased for a sum of Rs,11,65,951 respondent No,2, who reportedly deposited the total sale price with the Court. Seemingly aggrieved by the said sale, the appellant's filed an objection petition, under Order XXI, Rule 90, C.P.C., inter alia, pleading that as no notice, as required under Order XXI, Rule 66, C.P.C, were served upon the judgment-debtors, therefore, the sale is illegal. The said application was resisted by the decree-holders as well as the auction-purchaser and the learned Banking Court, ultimately, dismissed the said application, confirmed the sale and directed that the sale certificate be issued in favour of the purchaser, vide order, dated 9-7:2002, hence the present appeal.
3. None has represented respondents Nos,3 to 6, thus, they are proceeded ex parte. Learned counsel for the appellants has contended that although an order for the issuance of notices under Order XXI, Rule 66, C.P.C, was passed by the learned Executing Court on 7-3-2002, yet neither any notices were issued nor served upon any of the judgment-debtors, as required under the law, thus, according to the learned counsel for the appellants, the sale is nullity. Conversely, learned counsel for the contesting respondents have supported the impugned order.
4. Upon the examination of the record, we find that on 7-3-2002, the learned Banking Court directed that "proclamation of sale by public auction be made after issuing notices to the decree- holder and the judgment-debtors under Rule 66 of Order XXI of C.P.C." and then the case was adjourned to 29-3-2002. On this date, after finding that the fee of the Court Auctioneer has been deposited, the learned Banking Court issued notices to the Court Auctioneer to conduct the proceedings of auction, without realizing that its preceding order has not been complied with and no notice under Order XXI, Rule 66, C.P.C. Was issued to the judgment-debtoRs, Record reveals that no notices under Order XXI, Rule 66, C.P.C., as itself directed by the Court, were issued by the learned Banking Court to the judgment-debtors, as we do not find any such notices, either served or unserved, on record. Furthermore, after passing order, dated 7-3-2003, the concerned official of the Court did not report that notices, as per the terms of order, dated 29-3-2002, have been issued and the only report, we find in the order-sheet which is in lead pencil, is that fee of the Court Auctioneer has been deposited. The learned Executing Court, without taking into consideration that requisite notices have not been issued, proceeded to call upon the Court Auctioneer to conduct auction. We feel that it was the duty of the learned Executing Court to have satisfied itself that his preceding order has been implemented and the mandatory notices have been issued to the judgment-debtoRs, Strangely enough perusal of the impugned order manifests that the learned Executing Court, of course contrary to the record, has held as under:-- "....The record shows that the notices were sent under Order XXI, Rule 66 of C.P.C. To the judgment- debtor Liaqat Ali through registered post and the copies of registered post and the acknowledgement receipts are present on record...."
5. Learned counsel for the respondents have also thoroughly examined the record and stated that no notices, under Order XXI, Rule 66, C.P.C. Were, in fact, issued to the judgment-debtoRs, When confronted with the said scenario, the learned counsel for the respondents have not much to say in this regard, rightly realizing the implications of the noncompliance of the mandatory provisions of Order XXI, Rule 66, C . P. C .
6. We are of the view that by non-issuing the notices, under the said provisions of law, the learned Banking Court has committed glaring illegality, thereby vitiating the ultimate sale. It has been held in Brig. (Retd.) Mazher-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), that contravention of provision of Order XXI, Rule 66, C.P.C.
Could render the sale nullity.
7. In the above perspective, we are of the view that non-issuance of notice, under Order XXI, Rule 66, C.P.C. To the judgment-debtor, has vitiated the entire ensuing proceedings, including the sale in favour of respondent No,2, thus, the sale is nullity in the eyes of law and the same had to be set aside. At this juncture, the learned counsel for the auctionpurchaser/respondent No,2 has informed that, in fact, auction-purchaser has deposited total sale price of Rs,11,65,951 with the Court, which has ultimately been withdrawn by the respondent-bank. He has submitted that as the sale has been set aside, therefore, Bank may be directed to refund the said amount to the auction- purchaser.
8. Upshot of the above discussion is that the present appeal is allowed and the impugned order, dated 9-7-2002 is set aside with no order as to costs. Resultantly, the sale in favour of respondent No,2 is also set aside being nullity in the eyes of law. Consequent to the above, now the execution petition, filed by the decree-holder-bank, shall be deemed to be pending before the learned Executing Court, who shall process the execution proceedings in accordance with law till the recovery of the decretal amount. As the sale has been set aside, therefore, we also direct the respondent-Bank to refund a sum of Rs,11,65,951 to the auction-purchaser/respondent No,2, within a period of fifteen days, from today.