SULTAN MAHMOOD vs HOUSE BUILDING FINANCE CORPORATION, through District Manager and 3 otherss

' SARDAR MUHAMMAD ASLAM, J.---Through this appeal the appellant has assailed the order of the District Judge dated 3-3-1996, whereby, the objection petition filed by the appellant against the auction held on 22-5-1995 has been dismissed and the auction has been confirmed.

2. Brief facts of the appeal are that the appellant secured a loan of Rs,90,000 from respondent No,1 for expanding construction of the house, while mortgaging his land in question in favour of the respondent No,1 and thereafter the petitioner started repaying the loan amount to the Corporation/respondent No, 1 . Respondent No,1 instituted an application under section 30 clause

(a) of House Building Finance Corporation Act, 1952 before respondent No,2 for the sale of the mortgaged property through auction and ultimately the execution petition was filed for the recovery of Rs,89,950. When the petitioner was in Saudi Arabia, the property of the petitioner was attached and put to auction. Neither notices were served upon nor substituted service was resorted to. The mother of the petitioner filed an application under Order XXI, rules 99 and 89 read with section 151, C.P.C. For non-confirmation of auction and recalling of the order on the ground that a bulk amount of Rs,1,35,000 has already been deposited by the petitioner but respondent No,2 rejected the objection petition and confirmed the auction vide impugned order dated 3-3-1996, which is being assailed through this appeal.

3. The learned counsel for the appellant contends that the objection petition has been dismissed summarily without framing of issues and grant of an opportunity to the parties to produce evidence to substantiate his allegation made in the objection petition. He also adds that the Court auctioneer, a learned Advocate, had worked as associate in the chamber of respondent No,3, the auction-purchaser. He further pleaded that, in fact, no auction was held and the entire proceedings were fictitious one. He also contended that neither proclamation was made in the vicinity nor auction was conducted at the spot and that the suit property with market value of Rs,6,00,000 has been auctioned at throwaway price. He next contended that only an amount of Rs,34,097 was outstanding which, too, has been paid during the pendency of this appeal and the respondent/House Building Finance Corporation has issued a certificate of satisfaction of the decretal amount. It was further submitted that respondent No,3 has already withdrawn the amount deposited by him on confirmation of auction, after admission of this appeal to regular hearing.

4. The learned counsel for the respondent while opposing the contention raised by the learned counsel for the petitioner submitted that the auction proceedings were conducted in a lawful manner; the auctioneer never worked in the chamber of respondent No,3. The amount deposited by respondent No,3 was withdrawn on admission of appeal with an undertaking that it will be deposited as and when the Court makes direction in this respect.

5. I have considered the respective contentions of the learned counsel for the parties and examined the record.

6. The appellant raised allegation in the objection petition which could not have been resolved without framing of issues and recording of evidence. There is no evidence of issuance of notice of proclamation and its affixation either at the premises of the property in dispute or at Court premises. The property is claimed to be worth Rupees more than six lacs, auctioned for an outstanding amount of Rs,34,097. The learned auctioneer is stated to have worked as associate of respondent No,3 in his chamber.

7. Summary rejection of the objection petitioner cannot be looked with favour. The learned trial Court should have granted opportunity to the parties to substantiate the allegation made in the petition.

8. The learned District Judge non-suited the petitioner on the ground that the application is time- barred and petitioner/ judgment-debtor has not deposited 1/5th of the auction money at the time of filing of the instant application. The application was admittedly filed on 21-5-1995 while the auction was to be conducted on 22-5-1995. The deposit of 1/5th is not automatic but is subjected to the order to be passed by the Court as contained in Order XXI, rule 90, C.P.C., for its deposit or furnishing security. The proceedings of auction resulting into its confirmation do require its examination in the light of the objection raised by the petitioner.

9. In view of the above, this appeal is allowed, the auction is set aside. The objection petition of the appellant shall be deemed to be pending before the learned District Judge, who shall issue notice to the parties and on framing of issues grant opportunity to produce evidence, whereafter the same shall be decided on its own merits.