2011 PLP 280 (CLD)

CH. SHAHID SAEED J.

Through this First Appeal against order the appellant has challenged the order dated 8-7-2006 passed by the learned Judge Banking Court, Bahawalpur-respondent No.1 by way of which a miscellaneous application filed by the appellant for setting aside the auction held on 23-4-2004 was dismissed.

2. Brief facts of the case are that a suit for recovery of Rs,6,81,8981 was filed by the Zarai Taraqiati Bank Limited/respondent No.2 against the appellant which was decreed on 16-12-2003 as ex parte. During the course of execution of the decree valuable land measuring 116-Kanals 12-Marlas situated in District Bahawalpur was put on sale through auction vide order dated 27-2-2004. The auction took place on 23-4-2004 which was conducted by Muhammad Mujahid Umer Court Auctioneer and respondent No.3 was the highest bidder who purchased the above mentioned agricultural land in consideration of Rs.7,70,

000. An objection petition was filed by the appellant on 4-5-2004 against the auction, thereof an order was passed by the learned Executing Court to deposit 20% of the decretal amount under the law till 24-5-2004. The appellant deposited Rs.1,54,000 with the Banking Court, Bahawalpur in compliance of the above said order through pay order. Learned Executing court heard the arguments on that application under Order XXI, rule 90 of C.P.C. on 16-12-2004 and also passed an order to deposit entire decretal amount along with the Auctioneer fee in the court after deducting the amount already deposited. After getting the whole decretal amount along with cost of the Auctioneer fee the learned Executing court confirmed auction held on 23-4-2004. The appellant deposited total amount of Rs.6,96,898.

3. Learned counsel for tie appellant argued that the learned Executing Court did not determine the reserve price nor the terms and conditions of auction as was required under the law and the order dated 23-4-2004 is violative to the concerned provisions of law as the requirements of Order XXI, rule 66 of C.P.C. were not fulfilled. Further contended that the court Auctioneer fixed the reserve price as Rs.7,00,000 only. The Court Auctioneer had no authority to fix the reserve price and the learned Executing Court was bound under Order XXI, rule 90 of C.P.C. to set aside the auction in question on the objections raised by the appellant. Further contends that the bid starts from the reserve price and the Court Auctioneer has no right or authority to fix the reserve price when the order dated 27-2-2004 is not speaking one wherein no reserve price or terms and conditions of auction were mentioned, so the same is liable to be set aside.

4. On the other hand, learned counsel for respondent No.3 auction purchaser stated that the proclamation was made in accordance with law and objection petition made by the appellant was turned down; that no document regarding the value of agricultural land has been placed on record for assessing the market price of the land, thus., proceedings of auction conducted by the Court Auctioneer are legal and validity is attached with auction proceedings. Further contends that the objection petition already filed by the appellant has been rejected on 8-7-2006 after hearing the parties wherein appellant himself stated that he does not press the application under Order XXI, rule 90 of C.P.C. Through order dated 8-7-2008 the learned Executing court observed that the miscellaneous application under Order XXI, rule 89 of C.P.C. was barred by time which is hit by Article 166 of the Limitation Act. Learned counsel for the respondent stated that no material to substantiate the plea taken in the application for setting aside the sale made out when the appellant himself did not press the application under Order XXI rule 90 of C.P.C. and all the allegations are baseless. The detailed legal proceedings were conducted by the Court Auctioneer. Notices were issued and all the measures were taken, thus, the instant F.A.O is not maintainable being without any force.

5. We have heard the arguments of the learned counsel for the parties and perused the record.

6. We have gone through the proceedings conducted by the Court Auctioneer and the order dated 8-7-2006 passed by the learned Executing Court, it is found that in the order dated 27-2-2004 nothing has been stated about the reserve price for which the court was duty bound to fix the same prior to the initiation/conducting the auction proceedings nor the terms and conditions for auction have been determined by the Court. The report submitted by the Court Auctioneer is also on the file. It is evident that the auction was started from the reserve price of Rs.7,00,000 without ascertaining from the record but when the order was made by the learned Executing Court, no reserve price was fixed by the Court. Otherwise it is apparent on the face of record that the auction took place with the connivance of few interested persons i.e. officials of the Bank/decree-holder who were deputed for the said auction. A bidder has always to start from reserve price and the Court Auctioneer has nothing to do except the permission of the court.

7. The provisions of Order XXI, rule 66 of C.P.C. are mandatory in nature and without fulfilling the basic requirements, if some auction has taken place that shall not be considered to have been lawfully made. The rule 66 of C.P.C. requires a specific order of the court which produces the effect of drawing the proclamation envisaging the terms and conditions of sale. In fact the intention of the law is to fix the reserve price in proclamation to safeguard the rights of the Judgment-debtor. The auctioned land is 116 Kanals,

12. Marlas reserve price of which is shown in the report of the Auctioneer as Rs.7,00,000 but the claim of the appellant is that at that time of auction the price of land was more than Rs.2,00,000 per acre. The schedule of average value of the property from 1-7-1990 to 30-6-2004 was handed over by the appellant in the court during the course of arguments wherein the average price of per Kanal has been shown as Rs.24,874 and per Acre Rs. 1,98,

778. This schedule seems to be prepared by the concerned revenue authorities but the same was not submitted before the learned Executing Court during the course of execution or at the time of arguments. Thus, at this stage we are not inclined to consider the same, however, we are of the considered view that the price of land is much more than the reserve price shown by the Court Auctioneer.

8. The learned trial Court as well as the Court Auctioneer committed material irregularity while conducting the auction and accepted bid without fixing the reserve price of the land, as neither the reserve price was mentioned in the order dated 27-2-2004 nor any other terms and conditions have been mentioned therein even notice to the judgment-debtor was not served. The reserve price which was fixed by the Court Auctioneer has no nexus with the market price and as such the same is without lawful authority and the auction which took place on 23-4-2004 is also illegal.

9. In the light of what has been discussed above, we accept this First Appeal against Order with the observation that the impugned order dated 8-7-2006 passed by the learned Judge Banking Court, Bahawalpur is set aside and auction proceedings conducted on 23-4-2004 in favour of respondent No.3 are declared illegal and without lawful authority, as the order dated 27-2-2004 is not speaking one, so the same is also set aside.

10. The appellant has already deposited an amount of Rs.6,96,898 which will be adjusted against the decretal amount. The balance amount, if any, shall be deposited by the appellant/judgment-debtor with the learned Executing Court within one month of this order. During the arguments the appellant made an offer to make payment of 5% to the auction purchaser. We increase the same to the tune of 10% to be paid by the appellant to the auction purchaser, so that he be compensated adequately. The amount of Rs.7,70,000 deposited by the auction-purchaser be returned to him. M.H./M-648/L Appeal allowed.