2008 PLP 1326 (SCMR)

JAVED IQBAL, J.

By this common judgment, we propose to dispose of the above captioned Civil Appeal bearing No.355 of 1999 and Civil Petition bearing No.456-L of 1999 as both are directed against the judgment dated 26-1-1999, whereby the appeal preferred on behalf of respondent has been accepted by the learned Single Judge of the Lahore High Court, Lahore, and orders dated 273-1997, 4-4-1997 and 31-5-1997 passed by the learned Executing Court have been set aside.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the respondent obtained an ex parte order for the recovery of loan amounting to Rs.4,91,947 against Messrs Madina Ice Factory etc. During the pendency of the suit Talib Hussain predecessor-in-interest of the appellant died. Without impleading all the legal heirs of Talib Hussain, deceased the respondent brought on record his two sons Muhammad Tahir and Muhammad Zahid. The said suit was decreed on 7-12-1995. The appellant on coming to know about the ex parte decree on 7-3-1996 when the property under loan was put to auction on 7-3-1996, moved an application under Order IX, rule 13 read with section 12(2) and Order 1, rule 10, C.P.C. before the learned trial Court. This application was dismissed for non-prosecution on 27-3-1997. On 1-10-1996 the appellant also moved an application for re-auction of the alleged property and prayed that he is ready to pay the decretal amount. On 14-4-1997 the appellant moved an application for setting aside the order, dated 27-3-1997 and dismissed the application under Order IX, rule 13 read with section 12(2) and Order 1, rule 10, C.P.C. He also prayed that the order dated 27-3-1997 may kindly be set aside and the petition be decided on its merits and further prayed that till the decision of the application execution proceedings may be stayed. On 16-4-1997 the appellant came to know that the property has been purchased in auction by4espondent No.2 who had started demolishing the property and applied to the learned trial Court for restraint order. On 31-5-1997 the application under Order IX, rule 13 and Order I, rule 10 read with section 12(2), C.P.C. was dismissed where the appellant undertook to liquidate the liabilities". Being aggrieved the respondent preferred an appeal which has been accepted vide judgment impugned, hence the above captioned appeal and petition.

3. We have heard Mian Nusratullah, Senior Advocate Supreme Court on behalf of appellant, Mr. M.A. Zafar, Advocate Supreme Court for petitioner and Ch. Abdul Wahid learned Advocate Supreme Court for respondent and scanned the entire record thoroughly and also perused the judgment impugned. After having gone through the entire record the pivotal questions which need determination would be as to what should be the consequences when provisions as contained in Order XXI, rule 89, C.P.C. are not adhered to strictly, whether the auction proceedings could have been conducted and confirmed on 4-4-1997 without dilating upon and deciding the application dated 27-3-1996 preferred on behalf of respondent under Order XXI, rule 58, C.P.C. and whether the decree holder and auction-purchaser connived with each other and the property worth Rs.85,00,000 was obtained against an amount of Rs.30,00,000 under the garb of laconic legal executing proceedings. Prior adverting to the above questions we are conscious of the fact that against ex parse judgment/decree, no appeal for setting aside the same was filed. There is no denying the fact that decretal amount along with 5% of the purchase amount was not deposited. A careful scrutiny of the entire record would reveal that there are certain admitted facts having substantial bearing on the fate of the case. The property admittedly pertained to Talib Hussain (successor-in-interest of the respondent) by whom loan facility in the tune of Rs.30,00,000 was obtained in lieu whereof property in question along with the machinery was mortgaged. The suit for the recovery of said amount was filed on 20-10-1988 without impleading Mst. Hassan Bibi (respondent) as a party. The learned Advocate Supreme Court on behalf of appellant failed to give any plausible justification for her non impleadment. Ex parte decree was passed on 30-10-1995 which culminated into auction dated 7-3-1996. It is quite amazing that the application for depositing the decretal amount made during the executing proceedings was never decided. The non-impleadment of respondent and no decision on the application for depositing decretal amount had caused serious prejudice against the respondent. The auction proceedings could not have been confirmed without dilating upon and deciding the said application. The confirmation qua auction depicts some what indecent haste. The Bank had been failed to bring the legal heirs of Talib Hussain on record which is a mandatory requirement of law and deprived the legal heirs of Talib Hussain to defend the suit properly. In our considered view the Executing Court had acted in a casual and careless manner which resulted in serious miscarriage of justice by not deciding the above mentioned application whereby a request was made in a categoric manner for depositing the decretal amount. The said application made during the pendency of executing proceedings could not be decided for the reasons best known to learned Executing Court. It is a serious illegality which cannot be overlooked. The sale could not have been confirmed on 4-4-1997 in the prevalent situation which was in oblivion of the provisions as envisaged in Order XXI, rule 58, C.P.C. The provisions as enumerated in Order XI, rule 89, C.P.C. cannot be made applicable and. pressed into service for the simple reason that application dated 14-4-1997 remained undecided and the decretal amount along with 5% of the purchase amount could not have been deposited by the respondent at her own.

4. The controversy has been set at naught by the learned High Court vide judgment impugned which does not warrant interference being well reasoned and unexceptionable. The appeal and petition being devoid of merits are dismissed with no order as to costs. S.A.K./A-8/SC Appeal/petition dismissed.