' MIAN SAQIB NISAR, J.---Througii the impugned order dated 21-3-2002, the learned Judge Banking Court, Faisalabad, has dismissed the objections of the appellant, challenging the sale of the disputed property in favour of respondent No,4 through Court auction, and has confirmed the sale in favour of the said respondent.
2. Briefly stated the facts of the case are that, respondentNo,1 instituted a suit for the recovery of Rs,12,29,629 against the appellant and others in the Banking Court, Faisalabad. The suit was decreed on 26-3-2001 to the extent of Rs,8,34,276 with mark-up and costs. The decree-holder brought an execution application on 2-6-2001, seeking satisfaction of the decree through the sale by auction of the mortgaged property of the appellant, which request was allowed by the learned Executing Court, vide order dated 6-6-2001; Mr. Tariq Bashir, Advocate and Rana Nazir Ahmad, Advocate, were appointed the Court AuctioneeRs, The proceedings were adjourned for 27-7-2001 and the notice for the settlement of terms and conditions of sale was issued to the judgment- debtor/appellant for the said date. On 27-7-2001, the appellant/one of the judgment-debtor, filed objections to the sale and also sought the suspension of -operation of the judgment and decree dated 26-3-2001, however, for three consecutive dates, the learned Presiding Officer was on leave; anyhow when the matter came up for hearing on 12-10-2001, the Court passed the following order:- - "An objection petition has beep. Instituted by the judgment-debtors alongwith application for suspension of operation of judgment and decree. Today, none has appeared on behalf of the objection-petitioner, however, in the interest of justice, notice on the objection petition has been given to the decree-holder bank for the next date of hearing. Copy of the objection petition be supplied to him. No ground exists to suspend the operation of judgment and decree in hand, hence, the application to this extent is hereby dismissed. To come up on 12-11-2001 for reply to the objection petition."
' When the matter came up for hearing on 12-11-2001, the Court ordered as order:-- "The mortgaged property has been auctioned on 13-10-2001 and report in this respect has also been filed by the Court AuctioneeRs, The auction-purchaser Pervaiz Akhtar has filed an application for confirmation of sale. An objection petition is already pending on behalf of judgment-debtor No,3, whereas another objection petition has been instituted by Lala etc. Replies to all the applications are yet to be filed, copies of the applications be provided to the respective counsel. To come up on 29-11-2001 for the purpose of reply."
3. As per the record, the Court Auctioneers auctioned the property on 13-10-2001 and respondent No,4 was the successful bidder for an amount of Rs,37,00,000. The appellant filed further objections to the sale, whereas respondent No,4 applied for the confirmation thereof. The learned Banking Judge through the impugned order, as mentioned earlier, has rejected the objections of the appellant and has confirmed the sale in favour of the said respondent. It may be pertinent to state here that as disclosed in the Court today, respondent No,4 has also been delivered the possession of the auctioned property.
4. Learned counsel for the appellant argued, that the Executing Court while passing the impugned order, has misconstrued the contentions of the appellant, inasmuch as, it is proved from the record that the appellant vide order dated 6-6-2001, was called upon through notice under Order 21, Rule 66, C.P.C. For the settlement of the terms and conditions of sale, but the same were never settled, and the alleged sale of the property was unauthorisedly made by the Court auctioneers through auction on 13-10-2001. He submits that it is proved from the record that neither the terms and conditions of sale were tendered by the decree-holder nor the Court auctioneers, and the Court also never caused the drawing and proclamation of the conditions, thus the sale conducted in violation of the provisions of Order 21, Rule 66, C.P.C., which are mandatory in nature, is nullity in the eyes of law. It is also submitted that the Court auctioneers without any authority and sanction of the Court, have issued the notice of sale, in which, the conditions of sale, as also the reserve price have been fixed by them, but this being without authority, resultantly, the sale, conducted by them, has no legal value and sanctity. Mr. Ahmad Waheed Khan, Advocate has lastly submitted that the notice, issued by the Court auctioneers for the sale of the property on 13-10-2001, does not contain the true and correct description of the property. No Khasra number of the land, which is agricultural in nature, has been specified and only Khata number is mentioned, which obviously is inadequate and inaccurate description; on this account also, the sale was liable to be set aside.
5. Confronted with the above, learned counsel for the respondent-Bank has conceded that the Court did not settle the terms and conditions of the sale under Order 21, rule 66, C.P.C., or caused the proclamation in this behalf. He further has not been able to controvert that the sale made in violation of the above provisions is a nullity in the eyes of law, however, he has argued that as the appellant was aware of the auction to be conducted on 13-10-2001, but did not make any effort or applied to the Court pointing out the said omission, resultantly, the appellant is estopped by his own conduct to challenge the sale on this ground.
6. Learned counsel for respondent No,4, who is the auction-purchaser, has vehemently opposed this appeal by submitting that, technicalities of law should not be allowed to deprive the auction- purchaser of the fruits of auction, in which, he has honestly participated and emerged as successful bidder. It is also submitted that according to section 19 of the Ordinance XLVI of 2001, the Executing Court, has the discretion to execute the decree in the manner, it considers appropriate, without following the provisions of Civil Procedure Code, therefore, if in exercise of such power the property has been put to auction without the drawing or issuance of the proclamation, it would not render the sale nullity in the eyes of law. He has further submitted that the failure of the Court to draw the proclamation in terms of Order 21, Rule 66, C.P.C., is a lapse on the part of the Court; and it is settled law that no one shall be prejudiced on account of an act of the Court, because respondent No,4, who is a bona fide purchaser, has participated in the auction on the basis of the public notice issued by the Court officer, under the genuine belief that the relevant provisions of law have been adhered to. Therefore, such a sale, which has been confirmed by the Court and the possession delivered to the said respondent, cannot be set aside on the principles of past and closed transaction. It has been further argued that the appellant had the option to seek the setting aside of the sale in terms of Order 21, Rule 89, C.P.C. On the deposit of 5% of the sale price, but he failed to avail such option; thus; the appellant cannot get the sale set aside on the grounds mentioned above. Lastly, it is argued that Vol.1, Chapter-12-L, clause 13 of the High Court Rules and Orders, provides that no sale can be set aside on any ground, which the objector could have taken before conducting the sale; but the appellant having failed to avail the appropriate remedy at the appropriate stage, is precluded to object afterwards. In support of his contentions, he has relied upon the following judgments:-- ' 2001 CLC 2016; 2000 CLC 1425; PLD 2000 Karachi 186; 2000 CLC 1438; PLD 1987 SC 512 and PLD 1984 SC 146.
7. We have heard the learned counsel for the parties. Where a decree is to be executed and satisfied through the sale of an immovable property belonging to the judgment-debtor, there are three mandatory steps, which the Court, in terms of Order 21, Rules 64 to 66 is required to take.
Firstly, to pass a specific order for the sale of the property sought to be sold. Secondly, to appoint the officer, who shall conduct the sale and thirdly, to effect the conduct of sale in the manner prescribed, which manner undoubtedly is provided in Rule 66. In the order dated 6-6-2001, first two requisites i,e, the decision for the sale of the property and appointment of officer in that behalf, are duly met. But for the prescribed manner, such as the settlement of the terms and conditions of the sale and drawing of the proclamation in that behalf under Rule 66, there is no order available on the record. The provisions of Rule 66, are mandatory in nature and without settling and causing a proclamation of the intended sale in terms of said rule by the Court itself, no sale shall be considered to have been lawfully made. The word "cause" appearing in rule 66, requires a specific order of the Court, which produces the effect of drawing the proclamation envisaging the terms and conditions of the sale. This includes the settlement of the conditions etc., by the Court itself or to approve those, filed by the parties, after hearing them. In the case in hand, as has been conceded by the learned counsel for the decree-holder and also seen from the record that, though a notice was issued to the judgment-debtor for 27-6-2001 for the causing of the proclamation, but as the Court was on leave on that date, no order in that behalf was passed. Same remains the position till the auction conducted by D. The officeRs, The record also reveals that the decree- holder Bank never filed the proposed terms and conditions of sale alongwith. Their execution application or subsequently. The power to draw the terms and conditions and issue a proclamation has not been delegated by the Court to the Court auctioneeRs, Therefore, the Court auctioneers could not on their own, issue the proclamation of sale.
8. Thus, the question, which arises for determination is, whether in the absence of an order by the Court, according to rule 66, any sale made, is valid or nullity in the eyes of law? The answer has been provided in the judgment reported as Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lahore 706, when the Division Bench of this Court, has ruled:-- "So far as the issuance of proclamation under Order 21, Rule 66, is concerned, it appears to be mandatory. Resultantly, due to contravention of this provision the sale is rendered as a nullity."
' In Appu alias Subramania Patter v.
0. Achuta Menon and others AIR 1926 Mad. 755, it has been held:-- "It is for the Court to settle the proclamation of sale and it cannot delegate the power to the Commissioner appointed by it. Order 21, Rule 66 directs that when any property is ordered to be sold by public auction in execution of a decree the Court shall cause a proclamation of the intended sale to be made in the language of such Court and that such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as fairly as accurately as possible the property to be sold and a number of other things."
' From the ratio of the aforesaid judgments, it is undoubtedly clear that, it is the duty of the Court to settle the proclamation of sale and it cannot delegate the power to the officer appointed by it. Even if a party is aware of the public notice issued by the Court auctioneers, advertising the sale, that would not be a substitute for the proclamation envisaged by the said rule. Therefore, any sale made in violation thereof, would be nullity in the eyes of law.
9. In the instant case, not only that the Court itself has failed to perform its duty to settle or approve the .Terms and conditions of sale, there is even no order of the Court, through which, such power has been delegated to the Court auctioneer, which otherwise could not at all be so delegated.
Resultantly, any publication of notice of sale by the Court auctioneers, shall be an unauthorised act, and of no legal consequence. It is settled law that no superstructure or legal rights can be based upon the foundation, which is void in nature. Consequently, the sale conducted by the Court auctioneers on 13-10-2001 was void ab initio and, therefore, on account of the principle of avoiding technicalities or that act of .The Court shall not prejudice any party, the impugned sale cannot be protected, The sale in favour of the respondent No,4, therefore, was liable to be set aside and could not have been confirmed by the Court, which has been so erroneously and illegally done through the impugned order.
10. Moreover, we have seen from the notice of sale issued by the Court auctioneers that the description of the property mentioned therein, is inadequate and inaccurate, because the exact Khasra numbers of the land, subject-matter of the sale, have not been mentioned therein. This too is a serious and material irregularity in the sale of the property and thus, the case of the appellant was squarely covered by the provisions of Order 21, Rule 90, C.P.C., and the sale was liable to be set aside on this ground as well.
11. The argument of the learned counsel for the respondent No,4 that, the appellant, instead of seeking resort to the provisions of Order 21, Rule 66, should have applied to the Court for the setting aside of the sale by paying 5% of the auction price, suffice it to say that, the right available to the decree-holder under Rule 89 is optional and can be exercised, where he does not have a case for seeking the sale set aside under rule 90, that he should pay the 5% over and above to the auction purchaser as compensation to the auction-purchaser and get the property released, however, where the case of the judgment-debtor is duly covered by Order 21, Rule 90, he cannot be compelled to exercise the option under Rule 89. Resultantly, the argument has no force and is repelled. ,
12. As far as the submission that, under the provisions of section 19 of the Ordinance XLVI of 2001, the Court had the power to execute the decree in any manner, as it considers fit, suffice it to say that, such power can only be exercised when there is request in this behalf made by the decree-holder and the Court by application of conscious mind, comes to the conclusion that the decree cannot be executed by applying the general rules as provided in the Civil Procedure Code. We have perused the record and find an obvious omission in this behalf. The Court has never, by a speaking order on the request of the decree-holder, exercised its discretion in terms of section 9, rendering the provisions of the Civil Procedure Code inapplicable, rather from the record, particularly from the order dated 6-6-2001 and also on account of issuance of notice to the appellant under Order 21, Rule 66, it seems clear that the executing Court intended to execute the decree according to the provisions of the Civil Procedure Code, rather than under the special law.
13. The last submission of the learned . Counsel for the respondent that the appellant should have filed the objections prior to the conducting of sale in terms of the High Court Rules and Orders mentioned above, it may be stated that the appellant did file, the objections before the Court on 27-6-2001, but on account of leave of the Court, these objections were not disposed of. Even otherwise, there is nothing on the record from where, it can be proved or verified that the appellant had any notice that the sale of the property is being conducted by the Court auctioneers on 13-10- 2001, as no date and time in this behalf, has at all been fixed by the Court. It is also not shown to us, if the Court auctioneers had given any notice to the appellant for the sale intended to be conducted by them on 13-10-2001. Thus, the rule quoted by the learned counsel for the respondent in the facts and circumstances, has no application; resultantly, this objection too has no force.
' In the light of what has been stated above, by allowing the objections of the appellant and setting aside the impugned order, the sale in favour of respondent No,4, is set aside with all the legal consequences to follow. This appeal is accordingly allowed.