2004 PLP 275 (CLD)

Date of hearing: 2nd October, 2003. ABDUL HAMEED DOGAR, J.‑‑‑Leave to appeal is sought against order dated 12‑9‑2000 passed by a learned Division Bench of Peshawar High Court, Circuit Bench, Abbottabad, whereby F.A.B. No. 1 of 1999 filed by the petitioner was dismissed.

2. Briefly stated, the facts leading to the filing of the instant petition are that respondent No. 1 United Bank Ltd., Jinnah Road Branch, Abbottabad obtained a decree in its favour for a sum of Rs.15,33,858 against the petitioners. In pursuance whereof execution was sought through sale by auction of the property of petitioners Messrs Al‑Hassan Feeds etc. bearing Bungalow No.324 on Khasra No.5172 measuring 2 Kanals situated at Channar Road, Abbottabad. In due course Mr. Saleh Mahmood, Advocate, was appointed as auctioneer. It was on 17‑9‑1998, the said Bungalow was auctioned to respondent No.2 Bashir Ahmad against a sum of Rs.16,00,000 who deposited 1/4th of the auction money in the Court and was directed to pay the remaining amount within 15 days. The auction‑purchaser, however, could not make the payment and applied for extension of 60 days' time to deposit the remaining 3/4th of the auction money by way of application dated 29‑9‑1998 to which respondent No.1 consented with the condition that the same be deposited upto 26‑10‑1998.

3. The petitioners however, did not consent to the above extension and prayed for setting aside of the auction proceedings on the ground that the same were not deposited within the stipulated time of 15 days. Since the auction -purchaser failed to deposit the remaining auction money on 2b‑10‑1998, a show‑cause notice was issued against him by the Court about the forfeiture of 1/4th amount deposited earlier by him. However, he was allowed to deposit the same in Court subject to consideration after notice to the other party. Anyhow on 11‑1‑1999, the petitioners were allowed to deposit decretal amount alongwith 5% of the auction money for recalling and setting aside the sale auction. In response, the petitioners requested to deposit Rs.1,00,000 within a month and remaining amount in a short period and the case was adjourned to 28‑1‑1999, on which date, none appeared on their behalf, as such, the auction was confirmed.

4. The petitioners, feeling aggrieved, challenged the above mentioned order in appeal before the learned Peshawar High Court, Circuit Bench at Abbottabad which was dismissed.

5. Ch. Mushtaq Ahmad, learned Senior Advocate Supreme Court for the petitioners mainly contended that the impugned order is without jurisdiction, against law, facts, canons of justice and equity, thus liable to be set aside. According to him, the Banking Tribunal has erred in confirming the auction while granting extension of time to respondent No.2, the auction -purchaser, to deposit the remaining 3/4th of the auction money, Even decree‑holder Bank, respondent No. 1, was not competent to give consent for the extension of time to deposit the remaining auction money, thus entire auction proceedings lacked transparency. He next contended that the petitioners were condemned unheard as the date, on which the said auction was confirmed, the matter was fixed for report to be submitted by the counsel of the Bank, as such, no one appeared on behalf of the petitioners which resulted not only in the miscarriage of justice but also caused substantial loss to the judgment‑debtors.

6. On the other hand Messrs Roohul Amin and Syed Asghar Hussain Sabazwari, learned Advocates Supreme Court vehemently controverted the above contention and argued that Syed Abbas Shah and his mother Mst. Razia Begum had filed the objections on behalf of the petitioners/judgment‑debtors and on 11‑1‑1999 an offer was made by the Court to said Abbas Shah that if he was willing to pay the decretal amount alongwith 5% of the auction proceedings to the auction purchaser, the Bank as well as auction‑purchaser would have no objection for setting aside the auction proceedings. Said Abbas Shah agreed to the above proposal and requested for time to deposit Rs.1,00,000 within a week as token money and for the remaining amount, prayed for some more time. On the next date i.e. on 28‑1‑1999, neither Abbas Shah or his counsel nor Mst. Razia Begum, or her counsel were in attendance; as such the learned Banking Court had no alternative but to confirm the auction. As regards, the contention that the Banking Tribunal was not competent to extend time, it is contended that the time to deposit the remaining amount was allowed with the consent of the Bank which was accordingly deposited on 26‑10‑1998 at about 12‑00 noon shortly after the adjournment of the case. According to him since the objection petition was filed without depositing any amount in the Court, as required by the provisions of Order XXI, rules 89 and 90 of the C.P.C., as such the same was not maintainable in law

7. We have given our anxious thought to the contentions raised at bar and find force in the arguments advanced by the counsel for the respondents. Order XXI, rule 89 of the C.P.C. clearly stipulates that where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court for payment to the purchaser, a sum equal to five percent. of the purchase‑money, which the petitioner had admittedly failed to deposit. Since the petitioners have failed to comply with the abovementioned mandatory provisions of law, as such the Courts below had rightly dismissed their objection petition. Irrespective of above, the counsel for the petitioners could not refer to any provisions of law in support of the contention that the Banking Court was not competent to extend time for depositing the remaining amount.

8. There is a no denial of the fact that an opportunity was granted by the Court to the objectors Abbas Shah and Mst. Razia Begum appearing on behalf of the petitioners to pay the decretal amount alongwith 5% auction proceedings to auction -purchaser respondent No.2 to which both of them had no objection but they failed to deposit the amount and also did not turn up on the date fixed for further proceedings. On the other side, respondent No.2 deposited 1/4th of the auction money at the time of auction and sought extension of time to deposit the, remaining 3/4th of the amount to which Bank raised no objection, thus it was deposited on 26‑10‑1998 at 12‑00 noon soon after the matter was adjourned.

9. In the above circumstances, as the sale was confirmed properly, therefore, we do not find any defect or irregularity in the impugned judgment which is accordingly maintained.

10. The petition is dismissed and leave to appeal refused. M.H./A‑451/S Petition dismissed.