Issuing of proclamation

2015 CLD 40 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 19Civil Procedure Code (V of 1908), O. XXI, Rr. 66, 90,67, 68 & 89Execution of decreeSale/auction of propertyNon-mentioning of "reserve price"Issuing of proclamationSetting aside of auction/sale on ground of material irregularity and fraudNon-compliance of provisions of mandatory O. XXI, Rr. 66, 67 & 68 of C.P.C.EffectScrutiny of process of auction by the Executing Court; inherent jurisdiction of

Process of sale of properties in execution proceedings was assailed by judgment-debtor on grounds of collusion between auction purchaser and court auctioneers as well as material and procedural irregularities

Held, that properties were situated at place "J" whereas publication of public notice under O. XXI, C.P.C. was made in newspapers at place "F"; and there was no mention of reserve price in pro forma allegedly submitted for schedule of auction

Order sheet did not show that the said schedule of auction had been incorporated in the order of the Executing Court

Although reserve price was mentioned in the publication, the same was done so without any authority and without fixation of the same by the Executing Court and mentioning of reserve price in the publication had no value as the same had not been mentioned in pro forma (schedule of auction)

High Court observed that even where the sale was conducted by the Court; a reserve price was essential and absence thereof may be fatal and it stood established that no reserve price was fixed by the Executing Court in the present case and proclamation issued under O.XXI, R. 66, C.P.C. did not comply with the requirement of the law

Executing Court, in the present case was not only having jurisdiction under O.XXI, R. 89, C.P.C.; but also under S.19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as an inherent jurisdiction to scrutinize the process of sale of properties through auction and to unearth fraud and save any party against whom fraud had been committed

No place of auction had been mentioned and proceedings were conducted by the Executing Court and the court auctioneers in a manner that necessitated the consideration of the element of fraud in said proceedings

High Court further observed that when any fraud was visible in auction proceedings, the Executing Court had suo motu powers in relation to the same

Auction proceedings, in circumstances, were not transparent from the first day, and illegalities were committed by the Executing Court as well as court auctioneers

Sale confirmed in favour of the auction-purchaser, was set aside

Appeal was allowed, in circumstances.

2015 CLC 183 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XXI, Rr. 66, 90,67, 68 & 89Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19Execution of decreeSale/auction of propertyNon-mentioning of "reserve price"Issuing of proclamationSetting aside of auction/sale on ground of material irregularity and fraudNon-compliance of provisions of mandatory O.XXI, Rr.66, 67 & 68 of C.P.C.EffectScrutiny of process of auction by the Executing Court; inherent jurisdiction of

Process of sale of properties in execution proceedings was assailed by judgment-debtor on grounds of collusion between auction purchaser and court auctioneers as well as material and procedural irregularities

Held, that properties were situated at place "J" whereas publication of public notice under O.XXI, C.P.C. was made in newspapers at place "F"; and there was no mention of reserve price in pro forma allegedly submitted for schedule of auction

Order sheet did not show that the said schedule of auction had been incorporated in the order of the Executing Court

Although reserve price was mentioned in the publication, the same was done so without any authority and without fixation of the same by the Executing Court and mentioning of reserve price in the publication had no value as the same had not been mentioned in pro forma (schedule of auction)

High Court observed that even where the sale was conducted by the Court; a reserve price was essential and absence thereof may be fatal and it stood established that no reserve price was fixed by the Executing Court in the present case and proclamation issued under O.XXI, R.66, C.P.C. did not comply with the requirement of the law

Executing Court, in the present case, was not only having jurisdiction under O.XXI, R.89, C.P.C.; but also under S.19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as an inherent jurisdiction to scrutinize the process of sale of properties through auction and to unearth fraud and save any party against whom fraud had been committed

No place of auction had been mentioned and proceedings were conducted by the Executing Court and the court auctioneers in a manner that necessitated the consideration of the element of fraud in said proceedings

High court further observed that when any fraud was visible in auction proceedings, the Executing Court had suo motu powers in relation to the same

Auction proceedings, in circumstances, were not transparent from the first day, and illegalities were committed by the Executing Court as well as court auctioneers

Sale confirmed in favour of the auction-purchaser, was set aside

Appeal was allowed, in circumstances.