Mirza MUNAWAR BAIG and 5 others vs BANK ALFALAH LIMITED and 2 others

' JAWWAD S. KHAWAJA, J.--- This execution first appeal has been filed by six appellants, who are respectively the husband, daughter and four sons of Mst. Munazza Jabeen. The appellants impugn the order dated 18-10-2003 passed by the learned Banking Court, whereby objections filed by the appellants in respect of an auction sale ordered by the Court were rejected and the said sale was ordered to be confirmed in favour of the auction-purchaser, namely, Kashif Arshad (respondent No,3 herein).

2. In order to appreciate the controversy arising in this appeal a brief narration of facts leading up to its filing is necessary. Bank Alfalah (respondent decree-holder) filed a suit against one Bashir Ahmad and Mst. Munazza Jabeen (predecessor-in-interest of the appellants) for recovery of a sum of Rs,41,03,980. The appellants were brought on record as the L.Rs, of Mst. Munazza Jabeen after her death. Here it may be added that Bashir Ahmad was sued as the principal debtor, while Mst. Munazza Jabeen was impleaded as a mortgagor, who had mortgaged her property in favour of the respondent-Bank to secure repayment of the finance advanced to Bashir Ahmad.

3. On 6-10-1996 the suit was decreed in favour of the respondent-Bank. The bank filed proceedings for execution of the aforesaid decree through sale of the mortgaged property. The property was auctioned on 5-7-2003. The Court auctioneer reported that only respondent No,3 participated in the auction and made the sole bid of Rs,18,00,000, which was also the reserve price fixed by the Court.

4. Learned counsel for the appellants has argued, firstly, that Rule 66 of Order XXI, C.P.C. Was not adhered to in material particulars, which caused grave prejudice to the appellants. In particular, it was submitted that no notice was issued to the appellants-judgment-debtors before the terms of sale were drawn up. This submission appears to be correct because learned counsel representing the decree-holder bank and learned counsel for the auction-purchaser were not in a position to controvert the assertion of learned counsel for the appellants. As a result, the appellants were neither aware of the terms of sale nor did they have any intimation of the order directing auction of the property in question. The absence of the mandatory notice to the appellants-judgment- debtors under Order XXI, rule 66, C.P.C. Is, by itself, sufficient for allowing this appeal and setting aside the Court auction. If any authority is required for this conclusion, reference may, be made to the case titled Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. Through Branch Manager and 3 others 2003 CLD1693.

5. There is, however, yet another reason why the Court auction cannot be upheld. We have noted from the original record that one Humayun Mirza was also a. Legal heir of Mst. Munazza Jabeen. He, however, was never impleaded as a party by the respondent-Bank and consequently, no decree was passed against him. Vide order dated 21-4-2003; the learned Banking Court had ordered .The Court auctioneer to submit a fresh schedule of auction excluding therefrom the share of Mr. Humayn Mirza from the property to be sold. It is obvious from the proclamation of sale that the entire mortgaged property was slated for auction without any indication that the undivided share of Humayun Mirza therein was not to be sold. The auction-purchaser was also unaware of this fact and his learned counsel stated that this was a revelation to him also.

6. Learned counsel for the appellants also raised objections to the effect that the place of auction had not been specified in the proclamation of sale and also that only one composite reserve price was stipulated although there were two distinct properties which were mortgaged and had to be sold. For the reasons, which have been discussed above, we propose to allow this appeal. It is, therefore, not necessary for us to address these submissions advanced on behalf of the appellants.

7. In the foregoing circumstances, this appeal is allowed and the impugned order dated 18-10-2003 is set aside. The learned Banking Court shall proceed to re-auction the property after adhering to the provisions of the law. No order as to costs.