2008 PLP 1281 (CLD)

In the present appeal order dated 3-5-2008 passed by learned Judge Banking Court, Bahawalpur refusing to confirm sale in favour of the appellants/auction purchasers has been challenged.

2. Facts of the case are that Allied Bank Limited, Eid-Gah Branch, Karachi instituted a recovery suit against Messrs Trader Craft etc. in the Banking Court, Karachi for the recovery of Rs.65,17,871 which was decreed on 2-4-1995. For the satisfaction of the decree, an execution petition for the recovery of Rs.79,06,436.07 was filed and since mortgaged properties of the judgment-debtors were situated within the territorial jurisdiction of learned Judge Banking Court, Bahawalpur, therefore, on 3-2-2005, the decree was transferred to the said Court for execution.

3. On receipt of the execution petition, from the learned Judge Banking Court, Karachi, the judgment-debtors were issued notices to appear and to join the proceedings in the Court. The notices were sent through registered post but none entered appearance to participate in the proceedings. The judgment-debtors since had not entered appearance, after the issuance of first notice, therefore, on 26-7-2006 notices under Order XXI, rule 66, C.P.C. were issued to them for sale of the properties through open auction. Despite the issuance of afore-mentioned notices, the judgment-debtors did not join proceedings, therefore, on 15-6-2007 an Auctioneer was appointed to dispose of the mortgaged properties through auction for the satisfaction of decree, through the receipt of sale proceeds. Since judgment-debtors had not participated in the proceedings despite the issuance of requisite notices, therefore, the bank through its counsel provided assessed value of the properties on 25-5-2007.

4. A proclamation for the auction of the properties was issued for 15-12-2007. The Court auctioneer on the said date sold both the properties. The property No.1 (warehouse) was purchased by Irfan Akram petitioner No.1 for a sum of Rs.55,60,000 who was declared successful bidder. The property No.11 (agricultural land measuring 191-kanal and 16-marlas) was sold for a sum of Rs.24,72,000 to Sardar Ajmal Mazari, who was declared successful bidder of the same. The total amount fetched comes to Rs.80,32,000 whereas the execution petition was for Rs.79,06,436.7.

5. After the conduct of auction, the decree-holder/bank filed an objection petition against the sale of these properties. On 23-1-2008 a letter from Rana Qamer-ul-Zaman one of the judgment-debtors was also received by the learned Judge Banking Court, Bahawalpur through U.M.S. wherein he also assailed the auction proceedings. According to him, the property No.1 was worth Rs.1,25,00,000 but the same was sold at a throw away price due to the collusion of his partners as he was residing out of the country. The decree-holder-Bank also sent a letter to the learned judge Banking Court (Annexure-G) on 17-12-2007, regarding the inadequate reserve price fixed for Property No.11. According to the decree-holder-Bank the value of the property was 14.000 (M) and not Rs.2.400 (M). The decree-holder-Bank on the basis of these discrepant fixation of reserve price filed the afore-mentioned objection petition.

6. On the receipt of objection petition, learned Judge Banking Court, Bahawalpur sought reply from the purchasers of the properties, who controverted the averments of the objection petition. According to the purchasers they, had purchased the property with bona fide. According to them, the auction was conducted legally and in a proper way. They had purchased the property according to the reserve price fixed by the Court.

7. Learned counsel for the appellants submits that there was no justification for refusing to confirm sale, which was held in an open auction in a transparent manner. He further submits that auction was conducted properly, in which several persons participated, that present appellants offered highest bid, therefore, they were successful bidder, they had deposited he entire sale proceeds with the learned Banking Court and there was no shortcoming in the auction proceedings in which the decree-holder-Bank was also present. He further submits that there was no dispute at all about property No. 1 (warehouse) purchased by petitioner No. 1 for a sum of Rs.55,60,000 who was declared successful bidder. He has drawn our attention towards Order XX, rule 90, C.P.C. and urged about the non-deposit of 20% of the sum realized at the sale by the objectors.

8. After hearing learned counsel for the appellants and perusing the impugned order passed by the learned Judge Banking Court, Bahawalpur we found that Property No.1 (warehouse) was sold to Irfan Akram appellant No. 1 for a sum of Rs.55,60,000 whereas property No. II (agricultural land measuring 191-kanals and 16-marlas) was sold to Sardar Ajmal Mazari appellant No. 2 for a sum of Rs.24,72,

000. Before conducting the auction proceedings assessed value of the properties was sought from the judgment-debtors as well as from the decree-holder-Bank. Since the judgment-debtor did not enter appearance, hence the decree-holder-Bank through its counsel supplied reserve price of the properties as Rs.5.500 (M) and Rs.2.400 (M) respectively. After the sale of the properties, the decree-holder-Bank filed an objection petition on the ground that properties were sold on inadequate price and the auction proceedings having not been conducted lawfully. Rana Qamar-ul-Zaman one of the judgment-debtors, who according to him was residing abroad, also assailed the auction on the ground that "Warehouse" was worth Rs.1,25,00,000 whereas it was sold with the collusion of his partners for a sum of Rs.55,60,000 only. The assessed value of the property given by learned for the decree-holder-Bank is in negation to a letter dated 8-5-2007 sent to him by the decree-holder-Bank.

9. Though the decree-holder-Bank filed an objection petition yet a letter from Rana Qamar-ul-Zaman one of the judgment-debtors, who according to him was residing abroad, was also received by the learned Judge Banking Court, Bahawalpur and from its contents it was evident that he was residing abroad. The learned Judge Banking Court also came to the conclusion that property was sold at a much low price as assessed by him. Judgment-debtor was not properly served in accordance with law. On account of the alienation of mortgage property by the judgment-debtors, a complaint was filed in the Court on 29-6-2007 wherein the accused have been summoned. It is also mentioned in the impugned order that Rana Qamar-ul-Zaman was residing in Karachi whereas Muhammad Afzal one of the judgment-debtors had died. Masood Afzal one of the judgment-debtors was also reported to be senseless. Mansoor Afzal's residence was also reported to be outside.

10. The learned Judge Banking Court, Bahawalpur came to the positive conclusion that since the properties have not been sold properly and lawfully and auction proceedings lack transparency, coupled with the fact that one judgment-debtor has died and other residing elsewhere, therefore, he set aside the auction conducted by the Court Auctioneer on 15-12-2007 in favour of Messrs Irfan Akram and Sardar Ajmal Mazari present appellants with further direction to refund the auction price received from them being successful bidder.

11. We have noticed that in this case not only judgment-debtors but the decree-holder-Bank, which is very rare, are saying that the properties in question have been sold on a throw away price and they have requested to the learned Judge Banking Court not to confirm sale in favour of the present appellants. It was also the duty of Executing Court to protect the right of the parties, which were not to be jeopardized and sacrificed at the altar of execution of decree. In execution of decree, proper price should be fetched through the sale of the properties and were not to be sold at throw away and paltry price. Highest bidder does not earn any edge over on the basis of such fake auction or collusive sale and auction is always subject to confirmation by Executing Court. About non-deposit of 20% of the sale proceeds for maintaining objection petition is concerned, it was not objected by the present appellants before the learned Judge Banking Court and thus the same cannot be allowed to urge in appeal. Resultantly, present appeal is dismissed in limine and respondent/bank is directed to refund the amount of sale to the Auction purchasers immediately. H.B.T./M-309/L????????????????????????????????????????????????????????????????????????????????? Appeal dismisse