2016 PLP 2323 (CLD)

Through this petition, the petitioner, a judgment debtor has impugned order dated 31.03.2014 whereby sale in respect of the mortgaged property was confirmed. Mr. Umar Farooq Khan, Counsel for petitioner contends that a mortgaged decree in the sum of Rs.77,85,650/- was passed against the petitioner on 11.10.2010 directing sale of mortgage property i.e. a double storeyed bungalow constructed on Plot No. 117, Block-D, P&T Society, Korangi, Karachi. He frankly admits that no appeal was filed against judgment and decree and consequently in the execution proceedings the property was put to auction in the year 2011, however, since no bid was received, the matter therefore, remained pending with the Executing Court and finally the second sale proclamation notice was issued by the Banking Court on 08.11.2013 wherein the value of the property was specified at Rs.90,00,000/- whereas the forced sale value was given as Rs.72,00,000/-. According to the Counsel the Respondent No.3 made an offer to purchase the said property for Rs.72,00,000/- which bid was objected to by the petitioner on the ground that the forced sale value was much less than the one which was mentioned in the sale proclamation. On such objection the Court directed fresh forced sale evaluation of the subject property which came to Rs.75,00,000/-, however, instead of advertising the property for sale the Court confirmed the sale as the Respondent No.3 has enhanced the bid from Rs.72,00,000/- to Rs.75,00,000/-. Per counsel the Court could not have confirmed the sale without advertising and calling for fresh bid in consequent to the, new forced sale value. On the other hand, counsel for Financial Institution as well as Respondent No.3 contends that after the sale was confirmed the Financial Institution has withdrawn the bid amount as well as the Execution. According to them the property remained on auction for more than three years but no buyer could be found and additionally neither any irregularity was pointed out in conducting sale nor any objection/ application was filed before the Banking Court and in the instant petition is fixed after the execution was disposed of as satisfied. We have asked the counsel to satisfy this Court regarding the maintainability of the instant petition as there is nothing on record to demonstrate that the Petitioner ever questioned the legality of the sale proceedings before the Banking Court. There is a specific mechanism provided under the Code of Civil Procedure for challenging the sale within a specified time and on specific terms and failure to do so confer rights on the auction purchaser. The record reflects that the sale was confirmed on 31.03.2014 and the Petitioner without resorting to the provisions of Order XXI, Rule 89 or 90, C.P.C. or any other provision before the Banking Court has directly filed this petition on 23.04.2014. Additionally, despite our repeated query counsel could not point out any material irregularity in publishing or conducting the sale and or to demonstrate that the Applicant sustained substantial injury/loss. The record reflects that the respondent No.3 had met the forced sale value by adding Rs.3,00,000/- to his previous bid. The record reflects that the decree was for Rs.7,785,650/- with cost of fund passed somewhere in the year 2010 and the delay in sale of course is/was causing loss to the decree-holder bank as its claim along with cost of fund must have reached Rs.9(M). The very fact that the bank has withdrawn the execution clearly reflects that there are no other assets to satisfy the decree and for this very reason the petitioner had no fear of addition to his liability and, therefore, was leisurely enjoying the possession by delaying the proceedings. In the circumstances; when neither any illegality is pointed out nor any loss, we see no reason to interfere with the impugned order. Petition is dismissed. KMZ/A-122/Sindh Petition dismissed.