2007 PLP 720 (CLD)

NASIR-UL-MULK, J.

A suit for recovery of Rs.10,93,790 with cost and interest was instituted by the Agricultural Development Bank of Pakistan (ADBP) in the Court of Special Judge Banking, Rawalpindi, on 24-1-1994, against the loanee, Begun). Nusrat Maqbool. The defendant appeared and applied for leave to defend the suit, which was dismissed on 25-10-1995 and on the same day a preliminary decree was passed in favour of the Bank, providing opportunity to the judgment-debtor to pay the decretal' amount within three months, failing which, her property, mortgaged with the Bank was to be put to auction. As the amount remained outstanding, on application of the Bank, final decree was granted on 3-3-1996. During the execution proceedings the amount under the decree including interest was calculated at Rs.13,79,

336. The mortgaged property was put to auction on 6-5-1996 which was purchased by Rab Nawaz Chaudhry, being the highest bidder, for a sum to Rs44,50,

000. The entire amount is stated to have been eventually paid.

2. Meanwhile, the judgment-debtor had filed appeal against the judgment and decree on 30-1-1996 (R.F.A. No.14 of 1994) before the Lahore High Court, Rawalpindi Bench, which was admitted to full hearing on 13-2-1996 and notice in C.M.A. No.213-C of 1996, praying for suspension of the judgment and decree, was given, to the decree-holder/respondent, on which the following order' was passed on 5-5-1996:-- "In this C.M., notices were sent to the respondents twice but no body had given appearance on their behalf. At this stage, it is in the interest of justice that fresh notices be sent to the respondents for a date to be fixed by the office. Meanwhile' the auction proceedings are allowed but the same shall not be confirmed till the final decision of the present C.M."

3. On 22-5-1996, the auction-purchaser, on his application was impleaded as respondent in the appeal pending before the High Court. After a number of adjournments the Court, on 3-12-1996 in C.M.A. No.213-C of 1996 heard along with another C.M.A. No.1902-C of 1996, passed the following order in the presence of counsel for the parties:-- "Learned counsel for the petitioner undertakes to discharge the decretal amount in two instalments viz. Rs.7,00,000 by the 5th instant and the balance amount by the 12th instant. Granting the request the injunctive order is extended till 12-12-1996 and in the event of non-adherence to the undertaken schedule same would, automatically stand recalled. Accordingly, the applications are disposed of."

4. During hearing of the case, on 10-4-1997, the learned counsel for the Bank admitted that the judgment-debtor had deposited the sum of Rs.11,01,

992. By an another order of the Court of 4-12-1997, the plea on behalf of the judgment-debtor for waiver of interest on account of the concessionary scheme announced by the Government was recorded and rejected on the ground that the judgment-debtor had to separately apply for the same. The learned Division Bench of the High Court seized of the appeal taking into account the payment of Rs.11,01,992 by the judgment-debtor and further directing her to pay the remaining amount of Rs.2,31,000 with interest at the rate of 4% within seven days, allowed the appeal and set aside the auction by judgment dated 11-11-2002, which the auction purchaser has now assailed through this appeal.

5. Mr. Gul Zarin Kiani, learned Advocate Supreme Court entering appearance for the appellant, questioned the correctness of the impugned judgment on a number of grounds. Firstly, it was contended that the High Court was seized of appeal against the judgment and decree and not against execution proceedings, thus, the auction proceedings could not have been set aside in the said appeal, for the annulment of which separate and independent action was required. In this context, the learned counsel also submitted that the Appellate Court had erred in law in pressing into service the provisions of Order XXI, rule 89 for setting aside the sale upon deposit of the decretal amount by the judgment-debtor. It was argued that a separate comprehensive procedure is prescribed for invoking the said provisions including deposit of 5% of the auction amount. The learned counsel next referred to the order sheet of 3-12-1996, wherein while disposing of C.M.A. Nos.213-C and 1902-C of 1996, filed by the judgment-debtor, the High Court on 3-12-1996, on the undertaking of the judgment-debtor, directed her to pay the decretal amount in two instalments by 12-12-1996, failing which the injunctive order of 5-5-1996 would stand recalled. It was pointed out that not all of the amount of Rs.13,79,336 for the recovery of which the execution proceedings were pending, had been paid even on the date of the impugned judgment, when the Court directed the judgment-debtor to make payment of the balance amount of Rs.2,31,

000. It was further argued that there is no evidence on record if the amount of Rs.11,01,992 was deposited by 12-12-1996 in accordance with the direction of the High Court of 3-12-1996. The learned counsel also maintained that the admission to full hearing of the appeal by the High Court was in violation of the provisions of subsection (5) of section 12 of the Banking Companies (Recovery of Loans) Ordinance 1979, as the appellant/judgment-debtor was neither directed to deposit the decretal amount nor furnish security. For his submissions, the learned counsel cited "Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan" PLD 1987 SC 512; Tribhobandas v, Ratilal AIR 1968 SC 372 and Janak Raj v. Gurdial Singh AIR 1967 SC 608".

6. Mr. Ehsan-ul-Haq Chaudhry, learned Advocate Supreme Court representing the judgment-debtor/respondent No.1, submitted that on account of the injunctive order of the High Court, the sale by auction of the mortgaged property to the appellant had not been completed and, therefore, the High Court was well within its authority to set aside the same on payment by the judgment-debtor of the 'amount under the decree. As to the non-deposit of decretal amount or furnishing of security at the time of admission of the appeal by the High Court, it was argued that the respondent, appellant before the High Court, cannot be made to suffer for the act of the Court.

7. As to the last contention on behalf of the appellant, we agree with the learned counsel for the respondents that it was the duty of the Court to have taken note of the provisions of subsection 5 of section 12 of the Banking Companies (Recovery of Loans) Ordinances, 1979. No order was passed by the High Court in terms of the said provision and therefore, admission of appeal to full hearing without its compliance was an act of the Court and obviously, the appellant could not be made to suffer for the omission.

8. The mortgaged property was put to auction on 6-5-1996 and the appellant was declared to be successful bidder, who had made payment in accordance with the terms of auction. However, in the appeal filed by the judgment-debtor in the High Court against the judgment and decree, the Court on 5-5-1996 in C.M.A. No.213-C of 1996 allowed the auction proceedings to continue but the same were not be confirmed till the final decision of the application. No order subsequently, however, was passed to confirm the auction proceedings. The proceedings were kept pending by orders of the Court and even the purchase by the auction purchaser was subject to the order of the Court as the auction was held a day after the above referred order of the High Court. The case of "Hudaybia Textile Mills Limited (ibid), is distinguishable in that there was no injunctive order restraining finalization of the auction' proceedings and the case turned on the question as to whether the sale through auction could have been set aside on the application of the judgment-debtor without depositing 5% of the auction amount under Order XXI, rule 89, C.P.C. Though in the present case, the High Court had also pressed into service the said provisions of the Civil Procedure Code, with respect, however, we are of the opinion that the exercise was unnecessary. The judgment-debtor had not applied for the setting aside of the sale under Order XXI, rule 89, C.P.C. The auction proceedings were allowed to be carried out subject to the decision of the Court, which obviously included purchase of the property, by the auction purchaser. In view of the order of 5-5-1996 it was open to the High Court to pass any order regarding the auction proceedings, therefore, the Court was well within its authority to accept payment already made by the judgment-debtor and the remaining to be paid within the prescribed period in total satisfaction of the decree.

9. As to the compliance of the order of the High Court of 3-12-1996, it may be stated that the Court had ordered payment of the decretal amount, which according to the decree sheet of the trial Court was Rs.11,01i

992. No doubt the amount sought to be recovered in the execution proceedings was the sum of Rs.13,79,336, which apparently was the amount under the decree, including interest etc., the High Court; had by order of 3-12-1996 directed payment of the decretal amount, i.e. Rs.11,01,

992. Admittedly, the decretal amount was paid to decree-holder Bank, as affirmed before the High Court on 10-1-1997 by the Bank. There is nothing on record to show that the amount was not paid within the time frame set by the High Court on 3-12-1996. The remaining amount of Rs.2,31,000 was thus, ordered to be paid by the High Court through the impugned judgment, which we understand has been paid.

10. In the light of the above discussion, we do not find that the impugned judgment of the High Court suffers from any legal infirmity. Resultantly, the appeal being without merits is dismissed. There shall be no order as to cost. S.A.K./R-3/SC Appeal dismissed.