MASOOM INDUSTRIES Versus HABIB BANK LIMITED
ORDER
1. The brief facts out of which the present appeal arises are that the appellants secured a loan from the respondent/Bank and agreement was also executed between the appellants and the respondent‑Bank. The respondent‑Bank filed a suit for recovery against the appellants before the Banking Court, which was decreed vide judgment, and decree dated 14‑7‑1998. R.F.A. No.44/99 was filed which was dismissed by this Court vide judgment dated 31‑5‑1999. The respondent‑Bank filed an execution petition before the Banking Court against the appellants. The Banking Court appointed auction purchaser vide order dated 8‑4‑2000 and fixed date for auction as 11‑5‑2000 and for report on 13‑5‑2000. The auction was not held on 11‑5‑2000 in view of the Robkar allegedly issued by the Banking Court for 13‑5‑2000. The auction was held , on 13‑5‑2000, 4 bidders had participated in the auction proceedings. The bid of respondent No.2 was the highest amounting to Rs.39 lacs. The appellants being aggrieved filed an application under section 12(2), Civil Procedure Code for setting aside the judgment and decree dated 14‑7‑1998. The appellants also filed objection petition against the auction held by the auction‑purchaser under the order of the Court on the ground that the Court auctioneer in violation of the Court order has not auctioned the factory in open auction. The Court auctioneer in connivance with the bank officials and also with the auction‑purchaser has managed to sell the factory without open auction. The market value of the factory is Rs.1 crore whereas the Court Auctioneer has sold the same in Rs.39 lacs. The Banking Court dismissed the application under section 12(2), Civil Procedure Code vide order dated 19‑2‑2001 and also struck off right to pursue the objection vide order dated 19‑2‑2001. The Banking Court confirmed the auction vide order dated 1‑3‑2001. The appellants also filed review application before the Banking Court against the order dated 1‑3‑2001, which was also dismissed by the Banking Court vide order dated 2‑3‑2001. The appellants have .filed this appeal against the order of the Banking Court dated 1‑3‑2001, whereby the sale was confirmed by the Banking Court under Order 43, rule 1()) of Civil Procedure Code.
2. The learned counsel for the appellants submits that impugned order is without lawful authority and is in violation of the mandatory provisions of the Civil Procedure Code, as the auction was held by the Court Auctioneer without advertisement. In violation of the date mentioned by the Court i.e. 11‑5‑2000 and held the auction without issuing fresh hand bills on' 13‑5‑2000. He further submits that trial Court confirmed sale without deciding objection petition. filed by the appellants before the Banking Court vide order dated 1‑3‑2001. He further urges that order dated 19‑1‑2001 clearly reveals that objection petition filed by the appellants was not decided by the Banking Court. It is the duty and obligation of the auctioneer to sell the property in question after due publicity in terms of Order 21, rule 90, Civil Procedure Code and the law laid down by the Honourable superior Courts. In support of his contention he relied upon the following judgments:‑‑
(1) Punjab Province (now Province of West Pakistan) v. Kh. Feroze Din Butt and another (PLD 1960 Lahore 791).
(2) Brig. (Retd.) Mazhar‑ul‑Haq and another v. M/s. Muslim Commercial Bank Ltd., Islamabad and another (PLD 1993 Lahore 706).
(3) M/s. National Electric Company of Pakistan v. Allied Bank of Pakistan Ltd. and 2 others (1996 CLC 192) and
(4) Abdul Samad and another v. Aslam Munshi and others (AIR 1944 Calcutta 381).
2. He further urges that on the basis of the aforesaid judgments the auction, had been held in violation of mandatory provisions of Order 21, rule 90, Civil Procedure Code, therefore, material irregularity and fraud was committed. He further submits that no proclamation of sale has been made as is envisaged by Order 21, rule 66, Civil Procedure Code, therefore, the impugned order is not sustainable in the eyes of law. In support of his contention he relied upon the following judgments:‑‑
(1) Brig. (Retd.) Mazhar‑ul‑Haq and another v. M/s. Muslim Commercial Bank Ltd., Islamabad and another (PLD 1993 Lahore 706).
(2) Mst. Farida v. Mst. Sanjida and others (2000 SCMR 1264).
3. He further submits that in fact no proclamation has been published for sale as is evident from the hand bills on which the date was written with pen subsequently, therefore, it proves that no fresh proclamation was issued, therefore, impugned order is not sustainable in the eyes of law. In support of his contention he relied upon:
4. Iltafur Rahman v. Bosten (1968 SCMR 1350).
5. He further urges that Court auctioneer had not postponed the auction as is envisaged by Order 21, rule 69, Civil Procedure Code, therefore, the manner of holding the auction proceedings is termed as mala fide in support of his contention he relied upon:
6. Shila Pal (minor) and others v. Comilla Banking Corporation Ltd. and others (AIR 1945 Kalkata 434)
7. He further urges that in fact the impugned order was passed on the question of 5 per cent. only. He further submits that case was decided without providing proper hearing to the appellant, therefore, impugned judgment is hit by principle of natural justice.
3. The learned counsel for the Court auctioneer submits that First Schedule was submitted by the Court auctioneer on 18‑12‑1999 to be held on 21‑1‑2000, sale could not take place on 21‑1‑2000. Second Schedule was also issued on 18‑2‑2000 for 6‑3‑2000, but the sale could not take place on 6‑3‑2000. Third Schedule was issued on 13‑4‑2000 for 11‑5‑2000. The Banking Court issued a Robkar for sale on 13‑5‑2000.4 bidders participated in the auction on 13‑5‑2000. The hand bills were also displayed for the said date Court auctioneer submitted report before the Banking Court on 17‑5‑2000. The appellants filed objection petition before the Banking Court on 17‑5‑2000 without agitating the grounds urged before this Court, as is evident from the contents of the objection petition, which was dismissed for non‑prosecution by the Banking Court vide order dated 24‑5‑2000. The appellants filed an application for restoration of the objection petition which was accepted vide order dated 1‑11‑2000. The objection petition was again dismissed for non‑prosecution on 19‑12‑2000. The appellants filed application for restoration of the same. The learned counsel for the parties argued the case before the Banking Court on 15‑2‑2001. The learned counsel for the parties submitted their written arguments on 19‑2‑2001. The Banking Court confirmed the sale vide impugned order dated 1‑3‑2001. The appellants filed review application before the Banking Court which was also dismissed by the Banking Court vide order dated 2‑3‑2001. He further submits that appeal under Order 43, rule 1(j), Civil Procedure Code is not maintainable as the appellants have to file appeal under section 21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The stay could be granted only by depositing decretal amount in Court by virtue of section 21(1). He farther submits that summary procedure is prescribed under the provisions of aforesaid Act. He further urges that appellants failed to show that any material irregularity was committed by the Court auctioneer or by the Banking Court in view of Order 21, rule 90, Civil Procedure Code. The appellants failed to point out any substantial injury sustained to them. In support of his contention he relied upon:
8. Punjab Province (now Province of West Pakistan) v. Kh. Feroze Din Butt 'and another (PLD 1960 Lahore 791).
9. He further urges that order passed under Order 21, rule 66(2), Civil Procedure, Code is administrative order arid not a judicial order. In support of his contention he relied upon:
10. Mst. Manzoor Jahan Begum and others v. Haji Hussain Bakhsh (PLD 1966 SC 375).
11. The judgments cited by the learned counsel for the appellants are distinguishable on facts and law and the impugned order is in accordance with the dictum laid down by the Supreme Court in Ghulam Abbas v. Zohra Bibi and another (PLD 1972 SC 337). The learned counsel for the respondent‑Bank submits that respondent‑Bank secured a decree against the appellants but the respondent‑Bank did not receive a single penny till date and adopted the arguments of the learned counsel for the respondent/ Court auctioneer.
4. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record.
5. It is admitted fact that appellants filed objection petition before the Banking Court which was dismissed for non‑prosecution firstly on 24‑5‑2000, but subsequently it was restored by the Banking Court vide order dated 1‑11‑2000. Thereafter the application was again dismissed for non‑prosecution vide order dated 19‑12‑2000. The appellants filed an application for restoration of the objection petition, which was disposed of by the Banking Curt vide order dated 19‑2‑2001 to the following facts:
12. This fact was noted by the Banking Court in the impugned order dated 1‑3‑2001 that "after going through the entire facts of the case more especially the fact that the application of the judgment‑debtor for setting aside the decree has been dismissed as well as the objections having not been pursued by the objector coupled with the fact that the delay compelled the learned counsel for the auction‑purchaser to get his money back but conditionally, i.e. with 5% interest to which the learned counsel for the judgment‑debtor took exception, in the interest of justice sale in favour of the auction‑purchaser was confirmed". The appellants filed review application against this order, which was dismissed by the Banking Court vide order dated 2‑3‑2001 by observing that review of the order dated 1‑3‑2001 whereby the sale was confirmed in favour of the auction‑purchaser is uncalled for as the petition under section 12(2), Civil Procedure Code filed by the petitioners stood dismissed on 19‑2‑2001 and their objection petition to the auction also was disposed of on 19‑2‑2001. The only matter left for adjudication was of confirmation of sale or in case of withdrawal of amount of 5% or otherwise. In case the aforesaid facts are put in a juxtaposition then it brings the case of the appellants in the area that objection petition filed by the appellants was dismissed for non prosecution finally on 19‑12‑2000 and the application for restoration was also dismissed by the Banking Court vide order dated 19‑2‑2001. The appellants did not challenge the aforesaid orders any further, therefore, the said orders are final between the parties on the well‑known principle of res judicata as per principle laid down by the Honourable Supreme Court of Pakistan in:
13. Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee (PLD 1987 SC 145).
14. It is pertinent to mention here that even the review filed against order dated 1‑3‑2001 was dismissed on 2‑3‑2001, which order also has not been challenged. The judgments cited by the learned counsel for the appellants are distinguishable on facts and law keeping in view the peculiar circumstances of this case.
15. In view of what has been discussed above, this appeal has no merit. It is dismissed accordingly.
16. Q.M.H./M‑1592/L Appeal dismissed.