2008 PLP 1007 (CLD)

This appeal is directed against the order dated 24-4-2008 passed by the Banking Court, Lahore. Backdrop of the controversy is that the predecessor of the respondents Nos.1 to 4 obtained a loan of Rs.50,000 under the Peoples Credit Scheme, later it was enhanced. The respondent No.5 filed a suit against the mortgagors, respondents Nos.1 to 4 for recovery of the outstanding amount, it was decreed. Efforts were made to settle the debt, but could not succeed, resultantly the property was put to auction. One Abdul Rahim successfully bidded for it, deposited 1 /4th of the auction amount but failed to pay off the rest of the amount, and later opted to withdraw from the auction. The second highest bidder was thereafter called to deposit the amount and a sale certificate was issued in his favour. Thereafter the respondents Nos. 1 to .4 submitted an application praying that they be permitted to deposit the decretal amount, which was dismissed. Aggrieved thereof a constitutional petition was- filed in this court and the proceedings were remanded back to the Banking Court. Pursuant thereto the sale certificate issued in favour of the appellants was set aside and an order was passed for re-auction of the property. This decision was challenged again in this court and the Apex Court without success. Thereafter the. judgment-debtors and the decree-holder entered into a compromise and the judgment-debtors satisfied the decree, in entirety. This settlement has been challenged by the appellants, in the present proceedings.

2. The learned counsel for the appellants contended that there was a clear and explicit order by the Honourable Supreme Court of Pakistan directing that the property be sold through open auction. Thereafter the Banking Court had no option but to go along with the proceedings ordered by the apex court and had no authority in law to permit satisfaction and discharge of the decree by the judgment-debtors. According to the learned counsel, the impugned order is clearly violative of the direction of the Honourable Apex Court and of this Court, therefore, not sustainable in the eye of law and be set aside. He further stated that the appellants have paid a substantial amount to the bank and have not derived any benefit of the stated amount, therefore, their loss be made good and they be compensated adequately in case the order is maintained.

3. The learned counsel for the respondent No.1 has vigorously defended the impugned order and stated that there absolutely is no embargo in law for discharge and satisfaction of the decree between the judgment-debtors and decree-holders, in case they so desire. The order passed by the apex court did not put any restraint on them in this context, therefore, the appeal be dismissed.

4. We have heard the learned counsel for the appellants as well as the learned counsel for respondent No.1 and perused the entire history of checkered litigation.

5. The apex court has no doubt passed an order observing that Order XXI, Rule 87, C.P.C. commands that if a sale falls through the Court has to order resale by publishing proclamation in the manner, provided in the rules. It has no authority or sanction to permit the second highest bidder to take the benefit of the auction and be substituted. The order only restrained the court to permit the second highest bidder to take benefit of the auction and step into the shoes of the auction-purchaser. It has in no way prohibited or placed any restraint on the judgment-debtors to satisfy the decree. All questions relating to discharge and satisfaction of decree are governed by section 47, C.P.C. and the Executing Court is fully empowered in this respect. Therefore, when the judgment-debtors opted to pay off the decretal amount the Executing Court had no option but to go along with the arrangement. The appellants cannot challenge the satisfaction of the decree as they have no locus stands in this context. This appeal, therefore, has no merits and is dismissed. S.A.K./K-24/L Appeal dismissed.