2007 PLP 172 (CLD)

MIAN SAQIB NISAR, J.

In exercise of a decree, the property in question has been put to auction on 7-5-2005 and has been purchased by one Saleem Iqbal, on 15-9-2005, who is being represented by Mr. Shahid Ikram Siddiqui, Advocate; this sale was confirmed in favour of the auction-purchaser on 28-6-2005 and the sale certificate was issued to him on 12-7-2005; the appellants moved an application on 20-8-2005 alleging that they actually are the owners of the property; the alleged exchange by Mst. Noor Begum, their predecessor-in -interest in favour of respondent No.2, on the basis of which, the mortgage has been created, has been challenged by her through a civil suit instituted on 26-8-1999 and the matter is still sub judice in appeal before this Court. This application was moved under Order XXI, rule 89 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 with the offer that the appellants are prepared to deposit 5% along with the decretal amount and that the auction be set aside. It may be pertinent to mention that in paragraph No.7 of their application, it is stated by the appellants that "the petitioners obtained the knowledge of the sale about two weeks ago from the respondent No.3". Be that as it may, the learned Banking Court, through the order, dated 23-8-2005, has summarily rejected the application holding that the Court has already confirmed the sale and the certificate has also been issued in favour of the auction-purchaser and thus has become functus officio, and therefore, the belated objections by a third party cannot be gone into by the Court.

2. Learned counsel for the appellants contends that the appellants attained the knowledge only two weeks prior to the filing of the application and this fact has been duly mentioned in para.7 thereof, which assertion remained unrebutted by the respondents. Therefore, in such circumstances, the time of 30 days shall commence from the date of knowledge and not from the sale of the auction/sale. In order to resolve the above, the Court shall have issued notice to the other side and enabled the appellants to produce the evidence. And if it is proved by the appellants that they did not have any knowledge earlier than, as stated in paragraph No.7, in such situation, even if the sale certificate has been issued, the Court has the inherent power to withdraw the sale certificate and to consider the application of the appellants under Order XXI, rule 89.

3. We have heard learned counsel for the parties and find that as the question whether the appellants had the knowledge of the auction of the property in question or not and whether the application should have been filed within 30 days, even if they had no knowledge, is a question, which needs determination and for that an inquiry should have been conducted by the Court, thus the impugned order without following the above procedure cannot sustain. In the light of above, by allowing this appeal, the impugned order is set aside and the Banking Court is directed to re-decide the application of the appellants in accordance with law. M.H./N-105/L Case remanded.