2004 PLP 853 (CLD)

3. Being aggrieved therefrom, appellant filed Civil Petition for Leave to Appeal No. 1169‑L of 2002 before the Honourable Supreme Court of Pakistan, but this C.P.L.A. was also dismissed by the Honourble Supreme Court on 15‑5‑2002.

4. In the meanwhile, sale of mortgaged property through open auction was directed by learned Executing Banking Court in execution petition to enforce the decree. Auction was held on 12‑6‑2001 and respondent No.2 i.e. Dr. Jamshed Ismail was declared to be the successful bidder at Rs.16,25,000 as against reserve price of Rs.15,00,

000. He deposited 1/4th of the auction price. The remaining price of Rs.12,18,000 was also deposited by the successful bidder on 26‑1‑2001 within fifteen days from the date of auction.

5. Three objection petitions were filed against the auction proceedings by the appellant judgment‑debtor and others. Learned Banking Court on 17‑7‑2001 directed them to deposit 20% of the auction price till 24‑7‑2001. During this time, appellant on 18‑7‑2001, obtained an interim order from learned Division Bench of this Court in Regular First Appeal No.301 of 2002 against confirmation of sale subject to deposit of Rs.3,00,000 in Banking Court No.II within a period of 45 days by the appellant. Appellant failed to deposit the said amount within the prescribed time of 45 days, which elapsed on 1‑9‑2001. Learned Banking Court thereupon confirmed the sale and issued Sale Certificate in favour of respondent No.2 on 4‑9‑2001. After dismissal of Regular First Appeal No.301 of 2002 through judgment and decree dated 9‑2‑2002, appellant filed another objection petition dated 19‑3‑2002 against auction proceedings dated 12‑6‑2001, confirmation and issuance of Sale Certificate on 4‑9‑2001 in favour of respondent No.2. This objection petition was dismissed by learned Executing Banking Court through order dated 30‑4‑2002, hence the present F.A.O. thereagainst.

6. Learned counsel for the appellant contended that learned Executing Court did not appreciate the law of limitation on objection petitions filed on the basis of fraud and misrepresentation which, according to him, are regulated by residue Article 181 of the First Schedule of Limitation Act prescribing three year's period of limitation. And that in fact no public auction was held at all and no reserve price was determined by the Court, wherefor, despite issuance of Sale Certificate, auction proceedings in favour of respondent No.2 were liable to be set aside. Contrarily, learned counsel for the respondents supported the impugned order dated 30‑4‑2002.

7. Having considered the submissions of the learned counsel for the appellant, we are afraid, we do not subscribe to the arguments addressed by the learned counsel for the appellant. The above recounted facts show that upon decree, the appellant challenged the same in Regular First Appeal No.301 of 2002 and interim order dated 18‑7‑2001 was passed in favour of the appellant restraining confirmation of auction proceedings subject to deposit of Rs.3,00,000 within a period of 1‑1/2 months. This period elapsed on 1‑9‑2001 but appellant failed to deposit the said amount to avail of interim restraint order.

8. Through order dated 10‑9‑2001, learned Division "Bench of this Court, upon appellant's C.M. No.6‑C of 2001, allowed the appellant to deposit the amount of Rs.3,00,000 within two days with Deputy Registrar of this Court. Appellant deposited the said sum oil 12‑9‑2001. But in the meanwhile, during the period of 1‑9‑2001 and 10‑9‑2001, the learned Executing Banking Court confirmed the sale and issued Sale Certificate in favour of respondent No.2 on 4‑9‑2001 and 6‑9‑2001 respectively. Since objection petitions earlier filed by the appellant etc, were not entertained for absence of deposit of 20% amount, the appellant opted to raise all the issues in Regular First Appeal No.301 of 2002. The learned Division Bench of this Court while disposing of the said R.F.A. dealt with the questions of sale and Sale Certificate and held appellant's remedy under Order 21, rule 89, C.P.C. to have become barred by time. It was also observed that upon appellant's success in the said appeal, restitution could be ordered but the said appeal was dismissed as against all questions raised by the appellant except those of liquidated damages through following observations:- (3) "Thereafter property belonging to the appellant- defendant was auctioned in favour of Dr. Jamshed Ismail, auction purchaser and a Sale Certificate was also issued in favour of the auction purchaser on 4‑9‑2001. (4) ............ (5) The contentions of learned counsel for the appellant is without force. The auction sale could either have been set aside pursuant to an application made by the appellant under Order XXI or restitution could be ordered in his favour in the event of his success in the present appeal. The time for making the application under Order XXI, rule 89, C. P. C. has expired long ago. In the circumstances, the only remedy available to the appellant‑defendant is the present appeal. However, as noted above, admittedly even according to the appellant's own showing the decretal debt had not been satisfied prior to the auction sale. The liability of the appellant to make payment was established on the record. In this view of the matter, this appeal is without force. However, we are of the view that liquidated damages of Rs.2,62,004 were not recoverable by the‑respondent ank. Learned counsel for the said Bank in fairness, conceded that the impugned decree be modified to exclude therefrom the aforesaid amount of Rs.2,62,004. (6) In the above circumstances, the amount of the decree is reduced by excluding therefrom a sum of Rs.2,62,

004. The appellant shall therefore, be entitled to withdraw such amounts as have been deposited by him in Court but which are in excess of the decretal amount as modified by us. Order accordingly."

9. The above said judgment was upheld by the Honourable Supreme Court of Pakistan through judgment dated 15‑5‑2002 passed in C.P.L.A. No.1169‑L of 2002, wherein Honourable Supreme Court had also noted with approval issuance of Sale Certificate in favour of auction purchaser. In view of the above said judgments and B decrees, appellant was barred by principles of res judicata to raise the same questions in time‑barred objection petition which, to our opinion, was validly dismissed by learned Executing Banking Court. In view thereof, we do not find any merit in the present appeal and the same is dismissed with costs. S.M.B./M‑1863/L Appeal dismissed.