2003 PLP 264 (CLD)

‑‑‑Ss. 18 & 21‑‑‑Civil Procedure Code (V of 1908), O. XXI, R.90‑‑‑Execution of decree‑‑‑Auction proceedings‑‑‑Four bidders participated in auction of property and offered their bids, out of which three highest bidders withdrew their bids, whereas the lowest bidder remained in field‑‑‑Objection petition of judgment‑debtor was about inadequacy of price on account of lapse on the part of Court Auctioneer‑‑ Executing Court dismissed objection petition for judgment/debtors' failure to deposit 20% amount as required by O. XXI, R.90, C.P.C.‑‑‑Validity‑‑‑Executing Court had no power under law to accept offer of the lowest bidder in conducting some private auction in Court‑room, when highest bidders had already withdrawn their bids‑‑‑Duty of Executing Court in such circumstances was to have put the property for re‑auction as per requirement of law‑‑ Notwithstanding that judgment‑debtors had failed to deposit requisite amount of 2096 in terms of O. XXI, R.90, C.P.C., the order accepting offer of lowest bidder was void ab initio and illegal, which could not sustain‑‑‑High Court accepted appeal, set aside impugned order and annulled confirmation of sale made in favour of lowest bidder. Muhammad Arif Raja for Appellant. Shabbir Ahmad Khan and Khalid Naseem for Respondents. Date of hearing: 2nd October, 2002. SAQIB NISAR, J.‑‑‑The instant E.F.A. No.323 of 2001 as also E.F.A. No.481 of 2001, are being disposed of together, as both are against the common order of the learned Court below, whereby, the objections of the appellants, on the Court auction, were rejected.

2. Briefly stated the facts of the case are that a decree amounting to Rs.30, 61,115 with mark‑up was passed in favour of the respondent‑Bank on 18‑9‑1999. This decree was challenged by the defendants in appeal, which was dismissed on 16‑11‑2000. In execution of the aforesaid decree, the property in dispute bearing Khasra No.5/3, Khewat No.13067, Khatooni No.20218 measuring 2 Kanals situated in Chak No.224/RB, Tehsil and District Faisalabad, was directed to be sold in auction and respondents Nos. 11 and 12 were appointed the Court auctioneers. In E.F.A. No.323 of 2001, the appellant is the guarantor, against whom, the decree was passed, whereas in other appeal, principal‑debtor is the appellant. Anyhow, the property, after the publication of schedule and notice in the daily "Soorat‑e‑Hall" Faisalabad, was put to auction on 14‑2‑2001. Respondents Nos.7 to 10 participated in the auction. The highest bidder is respondent No.7, who offered Rs.80,00,000, respondent No. 8 offered Rs.79,75,000, whereas the other two respondents offered less than Rs.40,00,

000. Before confirmation of the sale, the appellant filed objections to the auction, however, as has been disclosed by the learned counsel for the parties, respondents Nos.7 to 9 subsequently, withdrew their bids on account of the reason that they were not aware at the time of making offer that there are certain liabilities on the suit property. In these circumstances, the Court accepted the offer of respondent No.10, which amounts to Rs.32,50,

000. Objections of the appellants about the inadequancy of the price, as also the lapse on the part of the Court auctioneer in following the procedure, were rejected, basically for the reason that according to the provisions of Order XXI, rule 90, C.P.C. appellants were required to deposit 20%, which they failed to deposit.

3. Learned counsel for the appellants contends that the notices of auction were not served upon the appellants. It is also stated that the auction notice was published in daily "Soorat‑e‑Hall', which is an unknown newspaper, having negligible publication and circulation. Lastly, it is submitted that when the highest bidder had backed out from the auction, the Executing Court could not conduct the bid privately in the Court and accept the offer of respondent No.10, which was lowest, particularly when he had already withdrawn his security, earlier deposited.

4. We have heard the learned counsel for the parties without going into the first two questions, we find it appropriate to dispose of these appeals on the proposition that the Executing Court had no power under the provisions of law to accept the offer of a lowest bidder in conducting some private auction in the Court‑room, when the highest bidder had already withdrawn the bid. In such circumstances, it was incumbent upon the Court to have put the property for re‑auction as per requirement of law. Learned counsel for respondent No.11, who is present in the Court, has failed to cite any law either in the Civil Procedure Code or under the Banking Laws to satisfy us if in such circumstances, the bid of the said respondent could be accepted. In the light of above, we find that notwithstanding that the appellants had failed to deposit the requisite amount of 20% in terms of Order XXI, rule 90, C.P.C., yet as the order accepting the offer of respondent No.10, is void ab initio and illegal, therefore, such order cannot sustain in law. Resultantly, by allowing these appeals, the impugned order is set aside and the confirmation of sale made in favour of respondent No. 10, is also annulled. However, it may be observed that the learned counsel for the appellants in E.F.A. No.481 of 2001 has conceded in the Court that, if some time is granted to the appellants, in that eventuality, the decree shall be satisfied and finally settled. He requests for one month time. We find this offer to be reasonable. Resultantly, the above‑noted time is allowed but in case, the decree is not satisfied, the Court shall be free to put all the properties for auction, which have been mentioned in the "Fard Taaliqa", including the property in dispute. As the respondent No. 10 was not validly auctioned the property in question, therefore, he is entitled to withdraw that amount, which has been deposited by him in the Court. If such amount has been received by the bank, the bank, within a period of one week, shall return that amount to respondent No.

10. S.A.K./M‑1515/L Order accordingly.