WAJID SAEED KHAN Versus ABDUL QADOOS KHAN SWATI

CH. IJAZ AHMED, J .--- Necessary facts out of which the present petition arises are that Respondent No.1 secured loan from respondent No.2 amounting to Rs.9,000 in the year 1976. Responder No.1 failed to discharge its liabilities in terms of agreement arrived at between Respondent No. 1 and Respondent No.2 (National Bank of Pakistan). Respondent No.2 being aggrieved filed a suit for recovery against Respondent No.1 in the court of Special Judge Banking Companies, N.-W.F.P. at Abbottabad. The suit of Respondent No.2 was decreed vide its judgment and decree dated 13-4-1987 amounting to Rs.39,193. Respondent No.2 filed execution petition before Judge Banking Companies/Executing Court. During the pendency of the execution proceedings State Bank of Pakistan had issued an incentive scheme on 18-6-1997. Respondent No.2 issued a letter to Respondent No.1 offering the package by prescribing a recoverable amount of Rs. 9,450 by or before 5-12-1997. Respondent No.1 had accepted the said offer and complied the same by depositing the said amount in three instalments. It is pertinent to mention here: that Respondent No.1 had also deposited 25% amount of Rs.2,500 on 3-7-1997, whereas the balance amount was deposited in two instalments of Rs.4,072 and Rs.3,000 on 15-12-1997 and 12-2-1998 respectively. Respondent No.2 issued another letter dated 18-10-1997 to Respondent No.1 stating there in that instead of Rs.9,450 a sum of Rs.22,863 was recoverable from been under the said incentive scheme. Respondent No. 1 failed to pay the said amount to respondent No. 2 in terms of letter dated 18-10-1997 mentioned above. The cut off date of incentive scheme was extended. Respondent No. 1 deposited amount of Rs.9,572 instead of Rs.9,400 during the extended period. The property in question measuring 1 Kanal belonging to respondent No.1 was put to auction which was held on18-6-1998. Petitioner participated in the said auction proceedings. The bid of the petitioner was highest amounting to Rs.42,004. Respondent No. 1 filed objection petition before the executing court on 23-7-1998 on the grouted inter alia that the amount had been already deposited by him prior to the date of auction. The property in question worth several lacs has been sold illegally for a petty amount of Rs.42,000. The objection petition was contested by respondent No.2 (National Bank) and auction purchaser before the learned executing, Court. Learned executing Court dismissed the objection of the respondent No. 1 vide its judgment dated 143-2006. Respondent No.1 being aggrieved filed Appeal (F.A.B.No.6 of 2006) before the Peshawar High Court, Abbotabad Bench, which was accepted by the learned High Court .vide impugned judgment dated. 25-.1-2007, Hence the present petition by the: auction purchaser.

2. Learned counsel of the petitioner' submits that petitioner had purchased the property in question in auction proceedings, which were held on 18-6-1998 for consideration of Rs.42,000. The said amount was equivalent to the market price. He further maintains that learned executing court was justified to dismiss the objection of respondent No.1, whereas the learned High Court had accepted the same without judicial application of mind. He further maintains that respondent No. 1 had not raised any objection qua the, auction held by executing court on 18-6-1998. Respondent No. 1 had filed objection on the basis of incentive scheme issued by the State Bank of Pakistan on the basis of which respondent No.2 had offered him to discharge his liabilities in terms of incentive scheme, Respondent No.1 had not discharged its duty within the prescribed period in terms of the incentive scheme and offer letter issued by Respondent No.2 on 18-10-1997 to the respondent No.1. Subsequently Backing Court had no other alternative except to sell the property is question through auction. He sums up his argument that the High Court had remanded the case to the executing court on wrong premises without adverting to the ground realities and pleas raised by the petitioner before the learned High Court.

3. We have given our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record. All the grounds raised by the learned counsel for the petitioner before us are exactly the same which were raised before, the learned High Court and were rejected by the learned High Court as is evident from paras.4 to 8 of the impugned judgment. The learned High Court had taken a lot of pain to re-examine the facts/material on record and had come to the conclusion that executing court dial not decide the matter after judicial application of mind as is 'evident from paras.7 and 8 of the impugned judgment which are reproduced hereunder:--

"No such investigation was ever conducted. A comprehensive objection petition covering various aspects of .the .case was submitted by the appellant on 23-7-1998 which was supplemented by several documents but the same was dismissed vide the impugned order merely by getting a reply from the decree holder and the auction purchaser. It has been held by the learned Banking Court that, firstly, "No material irregularity or fraud in publishing or conducting the sale was proved". Secondly, that, "No substantial injury is shown to have been sustained by him by reason of any irregularity." This reason has been advanced by referring to section 47, C.P.C., anal Order XXI, Rule 90, C.P.C. whereas, section 18(6) as referred to hereinabove (applicable to the period when the objection petition was moved) commences with the phrase "Notwithstanding anything contained in the C.P.C." Moreover, the substantial injury is apparent on the face of the entire record that despite the fast of deposit of the amount as per package of the Government and the permission of the Bank the house was auctioned for a petty amount and still more amount was being claimed from the judgment-debtor on the basis of the calculations of the Bank.

Thus in the interest of justice we accept this appeal, set aside the impugned order and remand the matter to the learned Banking Court to investigate the objection petition and to consider the points highlighted hereinabove and after hearing the parties the objection petition as well as the confirmation of the auction proceedings be decided afresh. Parties are present before us and they are advised to appear before the learned Banking Court on 15-2-2007."

4. The aforesaid paragraphs clearly reveal that learned High Court had remanded the case to the executing court to decide the objection of Respondent No. 1 in accordance with 'law. It is a settled law that this Court does not interfere; in the remand orders passed by, the learned High Court while exercising power under Article 185(3) of the Constitution as law laid down by this Court in Rehmatullah's case 1968 SCMR 337. It is pertinent to mention here that State Bank of Pakistan has the power to control advances by banking companies under section 25 of Banking Companies Ordinance (LVII,) of 1962. It is a settled principle of law that Judicial Officers are duty bound to decide the cases/applications/objections alter judicial application of mind as law laid down by this Court in various pronouncements. See Gouranga Mohan Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173. It is proper to mention here that public functionaries are also duty bound to decide the applications of citizens after judicial application of mind after addition of section 24A of General Clauses Act as law laid down by this Court in Airport Support Services v. The Airport Manager 1998 SCMR 2268. The learned, High, Court, was, justified to set aside the order of the executing court as learned executing court has dismissed the objections of Respondent No. 1 without judicial application of mind.

5. In view of what has been discusscd above this petition has no merits and the same is dismissed.' Leave refused. However, in the interest of justice the executing court is directed to decide the objections of Respondent No. 1 within oils month after receipt of the order of this Court under intimation to the Deputy Registrar (Judicial) of this Court. Deputy Registrar (Judicial) is directed to send this order to the concerned executing Court immediately for compliance. Parties are directed to appear before the executing court on 28-5-2007.

S.A.K./W-3/SC Leave refused.