2004 PLP 768 (CLD)

Muhammad Shahid Khan, for Appellant. Proceeded ex part vide order dated 29‑4‑2002. Date of hearing: 31st January, 2003. Kashif Younas, appellant/auction‑purchaser, through the filing of the present appeal, has called in question order dated 11‑4‑1995, whereby the learned Additional District Judge/Executing Court dismissed an objection petition, filed by respondent No.2.

2. Briefly stated, the facts leading to the filing of the present appeal are that pursuant to passing a decree for the recovery of Rs.25,000, against the respondent No.1, in favour of one Muhammad Ashraf, vide judgment and decree dated 22‑6‑1992, by the learned Additional District Judge, the decree‑holder filed an execution petition, wherein the property, belonging to respondent No.1. was auctioned, which was purchased by the present appellant Consequent to the above, the appellant deposited a sum of Rs.48,000 with the learned Executing Court as sale price. The respondent No.2 filed an objection petition, under Order XXI, rule 62, C.P.C., thereby raising certain objections to the sale/auction of the property also pleading therein that the said property was mortgaged in favour of the Bank, which was not impleaded as party, however, the learned Executing Court dismissed the said application vide order dated 11‑4‑1995, hence the present appeal.

3. The respondents were served through proclamation in the newspaper and as none of them appeared, therefore this Court, on 29‑4‑2002, passed an ex pane order against them.

4. Learned counsel for the appellant has contended that before passing the impugned order, the appellant, who purchased the property in auction, was not heard and although the said application has been dismissed, yet the said order has prejudiced the cause of the appellant, thus he has been condemned unheard.

5. Upon the examination of the record, I find that the appellant purchased the property in question in auction, conducted under the orders of the Executing Court and he was declared the highest bidder. Subsequently, under the orders of the Court, the appellant deposited the sale price A in the Court, which fact has duly been acknowledged by the learned Executing Court in its order dated 20‑4‑1995. Admittedly, sale certificate was issued in favour of the appellant. It is, thus, clear that the appellant has got a vested right in the property in question, as he has purchased the property in question and for all intents and purposes, has become the full‑fledged owner of the said property.

6. Admittedly, when respondent No.2 filed the objection petition, the appellant had purchased the property, inasmuch as the sale‑price had already stood deposited. It is evident from the contents and tenor of the impugned order that the appellant was not at all heard B before passing the impugned order and the same appears to have been passed at the back of the appellant. It is true that through the impugned order, the application, filed by the objector was dismissed, yet I find certain observations in the impugned order, which are bound to prejudice the interest/cause of the appellant qua the ownership of the property in question. To my mind, the learned Executing Court should have afforded an opportunity of hearing to the appellant, who at the relevant time had become owner and got a vested right in the property, which has been made subject to certain rights and liabilities by virtue of the impugned order passed in his absence. Undoubtedly, the appellant has been condemned unheard and that also is sufficient reason to set aside the impugned order enabling him to plead his case before the learned Executing Court.

7. In the above perspective, I have examined the impugned order and find that the same is not sustainable in law and was passed in complete violation of law, inasmuch as the principle of natural justice has been violated and not adhered to, thus I am inclined to set aside the impugned order.

8. In view of the above, the present appeal is allowed and the impugned order dated 11‑4‑1995 is set aside with no order as to costs. The result would be that the objection petition filed by responder No.2 shall deem to be pending before the learned Additional District Judge/ Executing Court, who is directed to decide the same, afresh, after hearing all the parties concerned, including the appellant. S.A.K./K‑205/L Appeal allowed.