2005 PLP 236 (CLD)

SYED JAMSHED ALI, J.

This appeal is directed against the order dated 16-4-2003, of the learned Banking Court-I, Faisalabad, whereby the objection petition of the appellants under rule 90 of the Code of Civil Procedure was dismissed. It arises out of the following circumstances.

2. On 30-12-1996, appellant No.1, through appellant No.2, borrowed a sum of Rs.3 lacs from the respondent Muslim Commercial Bank Ltd. On 9-6-2000, the Bank brought a suit for the recovery of Rs.3,02,794.07, which was decreed ex parte vide judgment dated 18-12-2000, in the sum of Rs.2,99,434.07. The aforesaid finance was secured by mortgage of two immovable properties of appellant No.2, in Mauza Civil Station, Jhang. The respondent-Bank filed an execution petition on 28-5-2001, for recovery of an amount of Rs.3,86,007.07 on which a notice under rule 66 of Order XXI of the Code of Civil Procedure, was directed to be issued to the appellants. On 28-6-2001, it was noted that despite issuance of process through registered notice, the postal receipts for which were on the file, nobody was in attendance on behalf of the appellants. Accordingly, the case was adjourned to 10-7-2001 for submission of the conditions of auction. On 10-7-2001, the case was adjourned to 17-10-2001, on which date the learned Banking Court directed auction of the property. Rana Muhammad Zulfiqar and Ch. Abdul Majeed, Advocates, were appointed as Court auctioneers to sell the mortgaged property. The case has been adjourned thereafter on a number of occasions. On 30-3-2002, the two Court auctioneers sold both the properties through a public auction. For the first property measuring 8 Marlas, Zahid Saeed, respondent No.3, was the highest bidder for a sum of Rs.4,80,

000. Property No.2 was sold for a consideration of Rs.3,10,000 in favour of Muhammad Altaf, respondent No.2. The dispute in this case pertains to property No.1 only (hereinafter referred to as the disputed property). On 22-5-2002, the appellants submitted to the learned Banking Court, two demand drafts in the sum of Rs.3,86,007 along with an application with the averments that the appellants were prepared to deposit any additional amount in favour of decree-holder in accordance with law as determined by the learned executing Court and were prepared to deposit 5% of the bid money. In this application it was alleged that the value of the disputed property was Rs.50 lac. On 10-4-2002, an application under rule 90 of Order XXI of the Code of Civil Procedure was also filed by the appellants before the learned executing Court. The application filed by the appellants was resisted by the respondent Bank and the auction purchaser. Vide impugned order dated 16-4-2003, the objection petition of the appellants was dismissed vide a separate order of even date, the sale of the disputed property was confirmed and a sale certificate issued on 23-4-2004 in favour of respondent No.3.

3. We have examined the record but could not find any order of disposal of the application moved by the appellants on 22-5-2002 nor the said application was disposed of vide order impugned in this appeal.

4. The learned counsel for the appellants contends that with the deposit of the decretal amount with the learned trial Court and the willingness of the appellants to pay the outstanding amount on determination by the learned Banking Court under the decree and also their willingness to deposit 5% of the bid money, further proceedings in execution should not have been taken. He also pressed into service that Property No.2, of appellant No.2 had already been sold for Rs.3,10,000 while with the deposit of demand drafts for an amount of Rs.3,86,007 an amount much more than the amount payable by the appellants stood realized but learned trial Court did not at all advert to this material and important aspect of the case. As far as the objection petition under Order XXI, rule 90 of the Code of Civil Procedure is concerned, his contention was that under rule 66, the learned Executing Court was required to draw a proclamation after notice to the appellants but neither any notice was issued nor the Court drew up the proclamation. According to him the provisions of rule 66 of Order XXI of the Code of Civil Procedure are mandatory which were violated. Reliance was placed on Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lahore

706. Another contention was that the Court auctioneers published a public notice in Weekly newspaper "Soorat-e-Hal" of Faialabad while the property in dispute was situated at Jhang. He also strenuously urged that in fact no auction was held at the spot and the entire proceedings were fake. According to him the disputed property is a house with two shops situated in the heart of the Jhang Town and according to the valuation table issued by the competent authority under section 27-A of the Stamp Act, the market price of the disputed property was Rs.2 lac per marla which was sold by the so-called public auction on a throw away price of Rs.4,80,

000. He also took exception to the proclamation published in weekly "Soorat-e-Hal" inasmuch as that it did not indicate the recoverable amount and even the description of the property was not correct.

5. On the other hand, the learned counsel for the respondents Nos.2 and 3 relied on the reasoning of the learned trial Court. His contention was that notice for sale was duly published by the Court auctioneer and there was no order of the Court for the publication of the proclamation in the newspaper as provided under rule 67 of Order XXI of the Code of Civil Procedure. He contends that the proceedings of the Court auctioneer show that the appellant was present and had signed the proceedings. He submits that a minor discrepancy regarding the description of the disputed property in the proclamation did not have the effect of vitiating the sale. He strenuously relied on the order dated 28-6-2001, according to which the notice under rule 66 of Order XXI of the Code of Civil Procedure was sent through registered letter and the postal receipts were on the record and contended that regularity is attached to all judicial orders and merely because the postal receipt was not on the record, the proceedings of auction are not vitiated.

6. The submissions made by the learned counsel for the parties have been considered. Although the application dated 22-5-2001, did not assert that it was being filed under rule 89 of Order 21 of the Code of Civil Procedure, yet in essence it was one under the aforesaid rule and although the proclamation did not specify the amount to be recovered yet, the appellants had deposited it the shape of Bank drafts, a sum of Rs.3,86,007 which was the amount claimed in the execution petition as on 10-5-2001. In the said application, the appellants had also undertaken to pay any additional amount due as determined by the Executing Court under the decree and had also undertaken to deposit 5%. Such an application lay as a matter of right. The only constraint to consider the said application was that the appellants had also moved an application under rule 90, and in accordance with the provisions of rule 89, the appellants were not entitled to prosecute the application under rule 90 but the appellants were entitled to a choice to prosecute one of the two applications. However, even if the application under rule 39 was deficient inasmuch as that with the said application 5% of the bid money for payment to the purchaser was not deposited, in the peculiar circumstances of the case when another property of the appellants had already been sold for a sum of Rs.3,10,000 (which is not, disputed), .the appellants were prepared to discharge the entire liability in accordance with the orders of the Court and their bona fides to discharge the entire liability, consideration of the said application could be deferred till the deposit of 5% of the sale price by the appellants and the learned Executing Court could direct deposit of 5% of the purchase money as offered by the appellants. And, such an application could even be considered under the inherent powers of the Court. Under rule 69 of Order XXI of the Code of Civil Procedure, an executing Court has, in its discretion, necessary power to A adjourn the sale and to our mind such a power will be available to an Executing Court, even after the sale before it is confirmed for the simple reason that a Court sale unless confirmed remains inchoate. It may be observed that all rules in the Code of Civil Procedure are intended to secure proper administration of justice and it is therefore, imperative that they should be made to serve and be subordinate to that purpose rather than be allowed to operate as a tyrant master. The said application was not, whoever, disposed of.

7. As far as the objection petition under rule 90, filed by the appellants is concerned, we have carefully examined the record. Vide order dated 28-5-2001, a notice was directed to the appellants under rule 66 of the Order XXI of the Code of Civil Procedure and according to the order dated 28-6-2001, the notice had been issued through registered post and the postal receipts were on the file Neither there is any copy of the notice on the record nor there was any postal receipt on the record. No proclamation was drawn up by the Court as required under rule 66 of the Code of Civil Procedure. There is an unsigned paper at page.47 of the record of the learned trial Court describing the conditions of the auction. It is a printed pro forma and blanks have been filled in, in ink This is not signed by the learned Judge. Therefore, we do not find that the provisions of rule 66 of Order XXI of the Code of Civil Procedure, had been complied with. We have also taken note of the 'fact that if at all the Court auctioneers had chosen to issue a public notice in al newspaper, it should have been issued in any newspaper, being published from Jhang, where the property was situated. We could not find any justification for publication of notice of sale in a weekly newspaper being published from Faisalabad. Besides error in the description of the property which may not be material, the amount to be recovered by the sale of the two properties was not indicated in the said public notice.

8. To support the application under rule 90 of the Code of Civil Procedure, affidavits of a number of persons were filed, according to which Court auctioneers did not visit the spot and it later transpired that the auction was conducted at the places which were not mortgaged with the Bank. The learned Banking Court was of the view that since the proceedings of the Court auctioneers were signed by appellant No.2, the auction must have been held at the spot, however, it was a seriously disputed matter which could only be resolved by the recording of evidence and not summarily as has been done by the learned Executing Court. We have seen the auction proceedings. Name of Sh. Muhammad Akbar son of Sh. Muhammad Hayat, has been entered at Sr. No.2 of the auction proceedings on two separate sheets. The signatures, on the said sheets appear to have been made by semi literate person. We have seen the signatures of appellant No.2, the sole proprietor of appellant No.1, on a number of places on the record of the learned Banking Court as well as on the record of this appeal. From the style and characteristic of the two writings we are prima facie of the view that the signatures on the bid sheet do not appear to be that of appellant No.2. In any case this aspect of the matter is left to be determined by the learned Banking Court.

9. For what has been stated above, we are of the view that while the application of the appellants dated 22-5-2002, was not decided, the application under rule 90 of the Code of Civil Procedure was not decided in accordance with law. Accordingly, this appeal is allowed. The impugned order dated 16-4-2003, is set aside and the case is remanded to the learned Banking Court-I, Faisalabad, to decide both the applications of the appellants afresh in accordance with law. No order as to costs. M.B.A./A-331/L Case remanded.