2016 PLP 892 (CLD)

SYED SAEEDUDDIN NASIR, J.

This 1st Appeal is directed against the order dated 20.5.2015 passed by the learned Judge of the Banking Court No.II, Karachi, wherein the learned Judge of Banking Court No.II, passed an order in Execution No.232 of 2013 of Suit No.556 of 2010 whereby the learned Judge of Banking Court No.II dismissed the application of the appellant under Order XXI, Rule 90, (second proviso) read with section 151 of the Code of Civil Procedure, 1908 confirming the auction sale of the mortgaged property and issuing writ of possession.

1. Brief facts of the case are that the Banking Court No.II at Karachi conducted auction of the mortgaged property on 01.04.2015 within the premises of the Court wherein the mortgaged property was sold for a total sale consideration of Rs.84,00,000/- (Rupees Eighty Four Lacs only).

2. Since the decree holder Bank had already given no objection for acceptance of the bid of Rs.84,00,000/- (Rupees Eighty Four Lacs only) offered by the joint bidders, who also deposited the entire sale consideration of the offered bid with the Nazir of the Banking No.II, Karachi, therefore, the said bid was accepted and the Nazir of the Court was directed to issue sale certificate in favour of the auction purchasers and the decree holder was also directed to deliver the original title documents of the mortgaged property to the Nazir of Banking Court No.II, Karachi.

3. The learned counsel for the appellants while arguing his case has inter alia contended that on 10.4.2015 the appellants filed an application under Order XXI, Rule 90, C.P.C. for setting aside the sale of the mortgaged property in auction on the ground that the market value of the said property was/is Rs.3 Crores, while the same had been sold by the Banking Court No.II, Karachi Rs.84,00,000/- (Rupees Eighty Four Lacs only) and as such the appellants were seriously prejudiced. On such application filed by the appellants, the learned execution Court vide order dated 16.04.2015 directed the appellants to first comply with the requirement of Order XXI, Rule 23-A of C.P.C. i.e. by depositing the decretal amount or furnishing surety for the repayment of money decree. However, the appellants failed to deposit the decretal amount with the Court and also failed to furnish surety to secure the repayment of decretal amount, and thereby failed to comply with the aforesaid order of the executing Court.

4. Thereafter, the appellants made another application under Order XXI, Rule 90, (second proviso), C.P.C. wherein they prayed that they may be allowed to furnish security for due performance of the decree in the shape of the property of their cousin. However, the affidavit of surety filed along with aforesaid application mentioned the value of the said property as Rs.55,00,000/- (Rupees Fifty Five Lacs only).

5. We have heard the learned counsel for the appellants and perused the material available on record with his assistance. Since short question of law is involved in this appeal, therefore, we intend to dispose of the same at the preliminary/Katcha Peshi stage.

6. It will be advantageous to note here that the application under Order XXI, Rule 90, C.P.C. is not competent unless it is shown therein that while selling an immovable property in execution of a decree, material irregularity or fraud in publishing or conducting the same has taken place, whereby the interest of decree holder or any other person entitled to share in a rateable distribution of assets has been adversely affected by such sale.

7. Upon bare perusal of the contents of applications, filed by the appellants under Order XXI, Rule 90, C.P.C. read with section 151, C.P.C. and Order XXI, Rule 90, (second proviso), C.P.C. read with section 151, C.P.C. along with the instant appeal as annexures-I and J respectively, and their supporting affidavits, we find that no allegation of material irregularity or fraud in publishing or conducting auction of the mortgaged property is made against the Banking Court No.II, Karachi, which is a condition precedent to make such applications. It appears from the record that the appellants failed to deposit the decretal amount with the Court and also failed to furnish surety to secure the repayment of decretal amount in compliance of Order XXI, Rule 23-A, C.P.C. The property documents furnished as security for the due performance of the decree/decretal amount in compliance of Order XXI, Rule 23-A, C.P.C. were also not valued properly and therefore, the appellants failed to comply with the aforesaid order of the executing Court dated 16.04.2015 on account of which the executing Court dismissed the aforesaid two applications of the appellants by the impugned order. For the aforesaid reasons we see no force in the arguments extended by the learned counsel for the appellants. Consequently, there is no reason to interfere with the impugned order, which is unexceptionable; therefore, we dismiss the instant appeal in limini at preliminary/Katcha Peshi stage along with all listed applications. SL/G-5/Sindh Appeal dismissed.