2018 PLP 774 (CLD)

ANWAR ZAHEER JAMALI, C.J.

This appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the Judgment dated 01.12.2011 in F.A.O. No.317/2004 (Re: M/s. Habib and Company and others v. Muslim Commercial Bank, Ltd. and others) passed by learned Division Bench of the Lahore High Court, Lahore, whereby whole process of auction of disputed property, subsequently purchased by the appellants for valuable consideration, in terms of the judgment and decree in Suit No.801/2002, passed by the Banking Court on 31.03.2003, was set aside as a fallout of another judgment passed on 01.12.2011 by the same learned Division Bench in R.F.A. No.213/2003.

2. We have heard arguments of the learned ASC for the appellants as well as learned ASC for Respondents Nos. 3 to 5 and perused the material placed on record.

3. Perusal of the impugned judgment dated 01.12.2011 shows that the only reason due to which the process of auction of the disputed property was set at naught, affecting the title of the present appellants in the disputed property, was that the ex parte decree passed by the Banking Court was set aside by another judgment of the same Bench.

4. In this regard, brief submission of the learned ASC for the appellants is that such view of the matter runs contrary to the ratio of judgment in the case of Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others (PLD 1987 SC 512) and other cases reported as Messrs Unicom Enterprises v. Banking Court No.2, City Court Building Karachi and 2 others (2004 CLD 1452), Mumtaz-ud-Din Feroze v. Sheikh Iftikhar Adil and others (2009 CLD 594) and Muhammad Attique v. Jam Limited and others (PLD 2010 SC 993). Relying on these cases, his further submission is that the auctioned sale through Court process, which had attained finality, cannot be nullified on mere premise that the judgment and decree as a result whereof such auction proceedings had taken place have been set aside. More so, when after the sale of disputed property in open public auction through Court process; full payment of sale, consideration, issuance of sale certificate by the Banking Court, and delivery of possession of auctioned property etc., valuable rights have accrued in favour of auction purchaser and the subsequent buyer who have also spent huge amount in raising further construction over it. These rights are, therefore, to be protected irrespective of any subsequent developments, which have nothing to do with their rights lawfully conferred by the Court.

5. Conversely, the learned ASC for Respondents Nos. 3 to 5 has squarely placed reliance on the contents of other judgment dated 01.12.2011 passed in R.F.A. 213/2003, which attained finality. He contended that once the foundation was removed the superstructure built over it was bound to collapse, therefore, there was no occasion for the High Court to once again dialate upon the merits of the claim of the auction purchaser or the subsequent buyer and the appeal was thus rightly dismissed.

6. Keeping in view the facts that the auction of the disputed property through due legal process had taken place on 09.09.2003; full payment of sale consideration was made; sale was confirmed; sale certificate was issued on 05.7.2004 without any objection either from the judgment-debtor or decree-holder; the subsequent purchase of the auctioned property by the appellants was for valuable consideration and as per their assertion appellants have also spent huge amount on raising further consideration over the disputed property and its renovation etc., we are satisfied that the impugned judgment, lacking any valid justification for rejecting the claim of the auction purchaser/appellants in a routine manner, is liable to be set aside in order to re-examine bona fide nature of their claim in the light of ratio of the judgments referred to above. Before parting with this order, it may be observed that we have refrained from further dilating upon the legal points involved in this case so that no prejudice is caused to the interest of any party in post remand proceedings.

7. Foregoing are the reasons of our short order of even date, which reads as under: "Heard the learned ASCs for both the parties. For the reasons to be recorded separately, this appeal is allowed. The impugned judgment dated 01.12.2011, passed in F.A.O. 317/2004, is set aside and the case is remanded to the High Court for fresh disposal on merits and in accordance with law after taking into consideration, whether the appellants are bona fide purchaser of the auctioned property for valuable consideration and in case it is so, whether their rights are not protected under the law in spite of the fact that the judgment and decree dated 31.03.2003 passed in the Banking Suit No.801/2002, titled as Muslim, Commercial Bank v. Messrs Habib & Co. was set aside vide another judgment of the High Court separately passed on the same date, i.e. 01.12.2011, in R.F.A. No.213/2003, which according to the learned ASC for Respondents Nos. 3 to 5, remained unchallenged and thus attained finality." MWA/Z-5/SC Case remanded.