2005 PLP 674 (CLD)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment, dated 28-10-2004, passed by a learned Division Bench of the Lahore High Court (Rawalpindi Bench) whereby E.F.A. bearing No.24 of 2004, preferred on behalf of respondent has been accepted and the order, dated 5-7-2004 passed by learned Judge, Banking Court, Rawalpindi, has been set aside and the objection petition filed by the petitioner without depositing 20% of the amount realized at sale was also dismissed being not maintainable.

2. Precisely stated the facts of the case are that Messrs Atlas Investment Bank Limited (respondent) filed a suit for recovery of the amount which was decreed by the learned Judge, Banking Court, Rawalpindi, by means of judgment and decree dated 10-12-2001. The decree-holder initiated execution of realization of the amount as result whereof the immovable properties belonging to the petitioner were attached and put to auction on 16-5-2002 against the consideration of Rs.27.5 million. The auction/sale dated 16-5-2002, however, was set aside by means of order dated 21-6-2003 by the learned Judge, Banking Court, Rawalpindi and the attached properties were put to re-auction. The petitioner filed objection petition pursuant to the provisions as contained in section 19(7) Financial Institutions (Recovery of Finance) Ordinance, 2001, which was rejected vide order, dated 25-9-2003. The auction was held once again on 20-11-2003 got conducted through an officer of the Court and the respondent (Bank) also floated the highest bid of Rs.32 million after having approval of the learned Judge, Banking Court. The petitioner once again filed objection petition under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, against the auction/sale alleging fraud and glaring irregularities during the auction proceedings. Before the said objection petition could be disposed of, the respondent (Bank) filed an application under Order XXI, rule 90, C.P.C. and sought indulgence of the Court for a direction to the petitioner for depositing 20% of the amount, realized at sale i.e. Rs.64 lac which was not accepted by the learned Judge, Banking Court by means of order dated 5-7-2004 as it prevailed upon the learned Judge, Banking Court that since the objection petition was filed under section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, as such, no direction could be given pursuant to the provisions as contemplated in Order XXI, rule 90, C.P.C. Being aggrieved, the respondent preferred E.F.A. which has been accepted vide judgment impugned, hence this petition for leave to appeal.

3. Heard Mr. M. Naeem Bokhari, learned Advocate Supreme Court on behalf of petitioner and Syed Najamul Hassan Kazmi, learned Advocate Supreme Court for the respondent, at length. Let we mention here at the very outset that it is an admitted feature of the case that sale of the property in question was confirmed in favour of the auctioneer/purchaser (respondent-Bank) on 20-11-2003 when admittedly no-objection petition was pending for adjudication as the order, dated 5-7-2004 of the learned Judge, Banking Court was set aside by the learned High Court vide judgment impugned. In such view of the matter, when no objection petition was pending, how the auction could be deferred. The formalities qua the auction/sale were completed on 20-11-2003 when the judgment impugned delivered on 28-10-2004 was intact and factually no-objection petition was pending at that particular moment and as such, the sale/auction could have been confirmed by the learned Judge, Banking Court which has been done vide order, dated 18-12-2004. It transpired from scrutiny of the record that an application was moved on behalf of petitioner with the prayer that the execution proceedings may be kept in abeyance as this Court was approached against the judgment impugned. It is, however, to be noted that no stay order was granted by this Court, hence, the question of suspension of execution of proceedings does not arise. It is an admitted feature of the case that neither any stay order was granted by this Court nor the judgment impugned was suspended. It is not denied by Mr. M. Naeem Bokhari, learned Advocate Supreme Court on behalf of petitioner that the order qua confirmation of auction/sale has been assailed before the Lahore High Court, Rawalpindi Bench, which is yet to be decided. The learned Advocate Supreme Court would be at liberty to argue his case in the manner, as may be deemed fit and proper for the redressal of his grievances.

4. Before parting with the judgment impugned, we may observe that conduct of the petitioner is not above board which demonstrate the propensity to prolong the proceedings and frustrate the object of the decree passed against him. It transpired from scrutiny of record that every effort has been made to get the proceedings prolonged on one or the other pretext. In view of the prevailing circumstances, we are not inclined to exercise our discretion in such-like cases. It is well-settled by now that grant of leave is a matter of discretion and not of right. The provisions as contained in Article 185 of the Islamic Republic of Pakistan do not impose any limitation as to the circumstances, which would justify or warrant the grant of leave to appeal. In this regard, we are fortified by the dictum laid down in the case Dauran Khan v. Naseer Muhammad Khan PLD 1964 SC 136, W.H. King v. Emperor AIR 1950 Bom. 380 and Jai Singh and others v. State AIR 1952 All.

991. It is worth-mentioning that when a petitioner does not approach this Court with clean hands, the discretionary jurisdiction to grant leave or refuse leave to appeal on account of conduct of petitioner would have substantial bearing on the question of grant of leave to appeal or otherwise. The case-law as laid down in Mst. Hassan Bano v. Mrs. Mumtaz Younus PLD 1989 SC 346, Deen Carpets Limited v. Iqbal Ghuman PLD 1989 SC 516 and Mst. Tilawatunnisa v. Settlement Commissioner 1978 SCMR 225 can be referred in this regard.

5. The significance, implication and import of the provisions as contained in section 19(7), Financial Institutions (Recovery of Finances) Ordinance, 2001 and the provisions as contained in Order XXI, rule 90, C.P.C. would be examined in any other suitable case. The petition being devoid of merits is dismissed and leave refused. C.M.A. bearing No.2 of 2005 is also dismissed for the reasons as mentioned hereinabove. S.A.K./B-24/S Leave refused.