2007 PLP 1346 (CLD)

MAULVI ANWARUL HAQ, J.

Property mortgaged by the appellants with the respondent-Bank was sold in execution of decree on 21-7-2001. The sale was challenged on several grounds. Even prior to the said sale, the appellants had filed C.M. No.531-B of 2001 questioning the terms of the sale and seeking- permission of the Court to sell the mortgaged property themselves. This C.M. was dismissed on 11-7-2001. Against this order C.P. No.2463-L of 2001 was filed in the Honourable Supreme Court of Pakistan. The auction purchaser joined the proceedings before the Honourable apex .Court. The' C.P. was converted into an appeal and allowed vide judgment dated 23-6-2005. The auction proceedings held on 21-7-2001 and confirmed by this Court on 12-9-2001 were set aside. The reasons for setting aside of the said sale and its confirmation are stated in detail in the said judgment. After the setting aside of the sale, the appellants filed an application (C.M. No.174-B of 2006) praying that the possession be restored to them. It has been dismissed by this Court in original Banking. Jurisdiction vide order dated 17-5-2006.

2. Learned counsel for the appellants contends that the sale having been set aside, the auction purchaser has no right to retain possession. Reference is also made to a report of a Local Commissioner appointed by the Court that the said purchaser has removed several pieces of machinery from the premises sold which have been taken elsewhere. The learned counsel for respondent No.1/decree-holder contends that in compliance with the orders of the Honourable Supreme Court, a re-auction has been ordered. Several attempts have been made but a purchaser is not coming forward. Regarding the machinery, he states that the auction purchaser has undertaken before the Court that the same be auctioned while being present at the premises of Harappa Textile Mills Limited at Sahiwal.

3. The sale was set aside by the Honourable Supreme Court of Pakistan on 23-6-2005. The admitted position is that several pieces of machinery were removed by the auction purchaser and taken elsewhere. We have examined the file of execution proceedings and do find .that at least on three occasions the auction proceedings were conducted and a report was filed that no purchaser is forthcoming: In the peculiar circumstances of the case, the reason for the said reports can be safely guessed. More than two years have gone by since the judgment passed by the Honourable Supreme Court of Pakistan and the auction purchaser is being allowed to occupy and to use the said property to his benefit and certainly to the detriment of the appellants, the admitted owners thereof. The Honourable Supreme Court has observed in the said judgment that against a loan of 32.418 million a sum of Rs.26.4 million had already been paid to be respondent No. 1-Bank. The order under which the property was sold and delivered to the said auction-purchaser having been set aside, by all means, the appellants are entitled to be restituted. The appeal is accordingly allowed and a direction is hereby ordered for taking steps in accordance with law for restitution of the property to the appellants. M.B.A./M-388/L Appeal allowed.