2006 PLP 1201 (CLD)

SALIM KHAN, J.

This first appeal Banking is against the order of Banking Court, Abbottabad dated 11-12-2004, where the observations regarding recovery of charges/claims of arrears have been given to the effect that the respondent No.1 (Small Industrial Estate Mansehra through Deputy Director Mansehra) may demand their claims of arrears from the decree-holder Bank/IDBP/the appellant, otherwise the order was in favour of the appellant and respondent No.2.

2. We heard the arguments of the learned counsel for the appellant as well as of respondent No.

1. Respondent No.2 was not available as being not interested in the result of this F.A.B. The learned counsel for the appellant contended that there was nothing in the auction order to the effect that the encumbrance/claims of respondent No.1 from the judgment-debtor would be chargeable against the auction money of the disputed property, and no fact to this effect was, even, mentioned in the order in the light of Order XXI, rule 66 of C.P.C. But, the learned Executing Court, took it otherwise and held that as it was not mentioned in the said order that the arrears would not be recoverable from the auction sale proceeds, therefore, the impugned order, to the effect that the respondent No. l may demand the said arrears from the appellant, was incorrect.

3. The learned counsel for respondent No. 1 argued that the arrears were related to the property in question and were, recoverable against the said property. When asked whether any oral or documentary evidence was produced by the respondent No.1 before the Executing Court to show that any arrears were outstanding to be recovered from the judgment-debtor or his property, whether such arrears, if any, were recoverable from the person of the judgment-debtor or from any of his property or the property in question only, or from the person as well as property of the judgment-debtor, he could not show us that any such evidence was produced by respondent No.l before the Executing Court. I-le admitted that the respondent No. 1 had not, even, produced the lease deed, if any, or other agreement deed, if any, between respondent No.1 and the judgment-debtor regarding the property in question, sold through the auction in question.

4. The respondent No.1 may have a right to claim arrears against the judgment-debtor, and may have a right to recover the same either from the person or property of the judgment-debtor in accordance with the terms and conditions of the lease deed/agreement deed between the respective parties. But, the respondent No.1 had not specifically mentioned the amount of arrears and had not shown the chargeability of the said amount against the property in question.

5. Sub-rule (2) of rule 66 of Order XXI of C.P.C. is as follows:-- " (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible; (a)? ??..; (b) ??..; (c) any encumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) ??..;

6. Without mentioning any encumbrance to which the property was liable, and without mentioning the amount of such encumbrance and without adding it to the amount already outstanding and making a total amount for which the sale was ordered, in the proclamation and the consequent warrant of auction, neither the decree-holder nor the auction purchaser were to be taxed for the purposes of such encumbrance and its amount. The encumbrance was not brought to the notice of the decree-holder or to the notice of auction purchaser before or at the time of auction, and the later verbal objection was a mere addition in the report of the auctioneer, without any solid basis for the same.

7. In these circumstances, we hold that the observation of the learned Executing Court regarding the claims of respondent No.1 from the appellant is not based on solid ground. The omissions by the Court cannot prejudice any of the parties, and, the appellant cannot be declared liable to pay the charges/arrears out of the amount of auction money, specially in the circumstances that further huge amount of the decree-holder is still outstanding against the judgment-debtor.

8. By accepting the present appeal, we set aside the remarks/observations regarding the right of the respondent No.1 to demand the claims of arrears from the appellant. We, however, observe that the respondent No.1 shall have all the rights against the judgment-debtor, when they proceed in accordance with law for the recovery of their arrears against the judgment-debtor and/or his property. H.B.T./ 149/P????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.