2004 PLP 1616 (CLD)

Court auctioneer in person. The latter has put up draft proclamation of sale which seems to be in order and no amendment has been proposed by the learned counsel for the decree‑holder. The same is, therefore, approved with the following schedule of auction:‑‑ (1) Making of proclamation in Court premises. 1‑6‑2000. (2) Making of proclamation at the spot with beat of drum. 17‑6‑2000. (3) Auction. 10‑7‑2000. (4) Auction report. 12‑7‑2000. The Court auctioneer shall submit before auction a certificate of his having made proclamation of sale as per above schedule." It flows from the above that the learned Banking Court directed on 21‑6‑2000 that the proclamation is to be made on 1‑6‑2000 and 17‑6‑2000, which is humanly impossible. It can easily be inferred from the said order that the same was passed without application of judicial mind. Had the learned Banking Court even read the order, that order could not have been passed, as the same is on the face of it, absurd Admitted no other order for the proclamation and approval of schedule of auction was passed. Surprisingly learned Court Auctioneer has also acted upon this order and has stated in his report that "he has pasted the posters of auction at the Court premises on 10‑6‑2000 and at the site on 17‑6‑2000 including all other conspicuous places". It appears from the said portion of the report that on the one hand the learned Court auctioneer deviated from the order dated 21‑6‑2000 and on the other hand it is not possible for him to paste the posters of auction on 17‑6‑2000, because the learned Court auctioneer must have proceeded after 21‑6‑2000. It is evident from the above that the proclamation of sale was not properly and legally approved, which renders the subsequent proceedings as nullity in the eyes of law. As the basic order, as noted above, was not in accordance with law, therefore, all the subsequent proceedings and orders including the auction proceedings, the report of the, Court auctioneer and the consequent impugned order, would fall to the ground. It has been held in Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 Supreme Court (Pak) 104 that "if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with superstructure of rights and obligations built upon them, must fall to the ground because such orders have as little legal foundation as the void order on which they are founded". In view whereof, to our mind, the entire proceedings, subsequent to the proclamation of the sale, are of no legal value.

5. In the above perspective, we find that the learned Banking Court has dealt with the matter in a very casual manner. We feel that the lapse on the part of the learned Banking Court and the Court auctioneer, in auctioning the property of the appellants, constitute a material irregularity and is sufficient to set aside the sale/auction.

6. Another factor, which has persuaded us to set aside the impugned order, is that the same is slipshod, devoid of reasons and cannot be called a judicial order. Bare perusal of the impugned order manifests non‑application of judicial mind and no reasons have been assigned by the learned Banking Court for the dismissal of the objection petition, inasmuch as the pleas raised by the appellants were not even adverted to. The Honourable Supreme Court of Pakistan in various cases, has disapproved the passing of such a sketchy and perfunctory orders.

7. We are mindful of the fact that the auction purchaser has deposited a total auction price of Rs.4,15,000 and the same is lying with the learned Banking Court without any corresponding benefit to the auction purchaser. In view whereof, it is directed that the appellants shall pay a sum, equal to 5% of purchaser money, deposited by the auction purchaser, to him within a period of one month from today.

8. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 8‑10‑2002 is set aside with no order as to costs. Resultantly, appellant's objection petition stands accepted and the auction proceedings undertaken by the learned Banking Court are also set aside. Needless to mention that the appellants shall pay a sum of Rs.20,750 to the respondent No.2, auction purchaser, within a period of one month from today and in case of non‑payment of said amount, the appeal shall be deemed to be dismissed. M.H./M‑2034/L Appeal accepted.