2004 PLP 1452 (CLD)

S. 22

Constitution of Pakistan (1973). Art. 199-- Constitutional petition

Maintainability

Auction by Court-- Validity

Provision of S. 22, Financial Institution (Recovery of Finances) Ordinance, 2001, having provided for challenging the judgment, decree, sentence, and, final order passed by the Banking Court within 30 days of such judgment, decree, sentence and final order to the High Court, Constitutional petition before the High Court was not maintainable. Gohar Iqbal for Petitioner. Salimuddin Nasir for Respondent No.2. Respondent No.3 (Present in person). Date of hearing: 20th July, 2004.

1. Granted.

2. This Constitution petition has been filed by the petitioner against the order dated 13-1-2004 passed by Banking Court No.5, Karachi by which petitioner's application under section 151, C.P.C. for recalling the order of confirmation of sale dated 19-6-2003 was dismissed. It seems that the respondent No.2 has filed suit for recovery which was decreed on 29-7-2000 in the sum of Rs.7,09,

867. Pursuant to the decree, respondent No.2 filed an Execution Application No.70 of 2000 in which order for selling the mortgage property was passed and on 13-1-2004 the mortgage property put to auction. Respondent No.3 gave the highest bid to which respondent No.2 gave no objection and bid was accepted. Pursuant to the acceptance of the bid, respondent No.3 deposited whole of the bid amount and thereafter on 19-6-2003 the order was passed by Banking Court by which the sale of mortgage property was confirmed and Nazir was directed to issue Sale Certificate and also hand over the possession of the auctioned property to the auction purchaser/ respondent No.3 and respondent No.2 was directed to deliver the title documents of the auctioned property to the respondent No.3. The only contention of the learned counsel for the petitioner is that after decree was passed by Banking Court, petitioner has approached the State Bank of Pakistan for resolution of the dispute between the petitioner and respondent No.2 and State Bank of Pakistan through its letter dated 5-8-2003 has resolved the dispute between petitioner and respondent No.2 by which the petitioner was allowed to pay the sum of Rs.7,50,000 in settlement of his liability by making payment in instalments. Pursuant to the order of the State Bank of Pakistan the petitioner filed an application in Banking Court on 16-12-2003 on which the order of "File" was passed by the Banking Court and thereafter the, impugned order was passed on another application of the petitioner under section 151, C.P.C. Mr. Saleemuddin Nasir learned counsel appearing for the respondent No.2 has opposed the petition and stated that the order for sale of mortgage property was confirmed by Banking Court vide its order dated 19-6-2003 and there is no illegality in it and the Bank. has followed the order passed by Court. The respondent No.3 appeared in person and opposed the petition and contended that he has deposited whole of the sale price in Banking Court and that the petitioner was aware of the auction of the property and thereafter its confirmation and now he has acquired full right of ownership of the auctioned property. We have gone through the record and find that auction of mortgaged property took place on 30-1-2003 against which petitioner raised no objection. On 19-6-2003 the sale was confirmed. The auction-purchaser/respondent No.3, has deposited sale price of the auctioned property in Court and in terms of Order 21, rule 92, C.P.C. sale of mortgaged property has become absolute and it cannot be recalled. Reference in this regard is made to the case of Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan PLD 1987 SC

512. The letter dated 5-8-2003 of the State Bank of Pakistan being subsequent to the confirmation of sale is of no consequence and cannot effect confirmation of sale by the Court. It is further noted that section 22 of Financial Institution (Recovery of Finances) Ordinance, 2001 provides, for challenging of judgment decree, sentence and final order passed by Banking Court within 30 days of such judgment, decree, sentence and final order to this B Court. In view of availability of remedy of appeal, present Constitutional petition filed by the petitioner is also not maintainable. Petition is therefore dismissed in limine alongwith listed application. M.B.A./U-2/K Petition dismissed.