Muhammad ashraf case law
It is settled law that where an order or judgment is challenged through separate proceedings be it
appeals or petitions, some of which are within time, while the others have been filed beyond the
period of limitation, all such appeals or petitions ought to be decided on merit especially when an
orders in one appeal or petition (within time) would apply to the other appeal or petition, which
may be barred by limitation. Consequently, it is appropriate to decide all three Civil Petitions on
merits.
Without dwelling further on this aspect of the matter, we are constrained to observe that there
can be no escape from the fact that even in the absence of an Objection Petition, learned
Executing Court is not required to automatically confirm an auction mechanically and without
application of mind by not even, considering the law applicable. Such is the law laid down by
this Court in the case reported as National Bank of Pakistan and 117 others v. SAF Textile Mills
Ltd. and another (PLD 2014 SC 283).
In the instant case, there is no denying of the fact that 10 separate properties were directed to be
auctioned at the "sites" at the same time. As per the case of the Respondent Bank, the said
properties are allegedly within one mile radius (this is disputed by the Petitioners). Be that as it
may, it is a. physical impossibility that an auction of 8 properties as alleged could be held at the
same time at 8 different places even if the said properties were approximately within a radius of
a mile. It appears that the auction was not held at a site in violation of the terms of the
proclamation. Similarly, we have noticed that there are no bid sheets available on the record, the
same having not been prepared by the Court auctioneer. It is also not clear that 25% of the
auction price of each of the said properties were deposited on the fall of the hammer. There is
some reference of the subsequent deposit through encashment of cheques. In the aforesaid
circumstances, it cannot be safely held that the properties were auctioned in accordance with the
law, nor can it be held that such auction, with obvious legal flaws, could have been confirmed by
the Court even if the Objection. Petition was not maintainable. It appears that the learned Courts
below abdicated their jurisdiction and responsibility, in this behalf.
The impugned judgment dated 06.06.2016 of the learned Lahore High Court as well as the
judgment of the learned Execution Court dated 14.05.2015 are set aside. The auctions are set
aside along with all ancillary actions. The sale price received by the Respondent Bank shall be
refunded to the auction purchaser along with mark up at the rate of 5% per annum. The
possession of the properties shall be taken over by the learned Banking Court from the auction
purchaser and the properties shall be put to auction again and this time hopefully in accordance
with the law.
2nd case : Khalil case
We have heard the learned counsel for the parties and perused the record with their assistance. It
is clear and obvious to us that land measuring 25 acres situated at Mouza Marakka, Tehsil and
District Lahore was sold for a paltry sum of Rs, 2.6 Million which translates into Rs,96,635 per
acre. This amount was not only much less than the actual market value of the land, but was also
substantially less than the DC rate which was in the sum of Rs,6,06,400/- per acre. Calculated as
per this criteria and not considering the real market value of the land, the value of 25 acres
calculated at the DC rate came to Rs,15,160,000/- We are therefore in no manner of doubt that
the land in question was indeed sold at a throw away price causing substantial injury and loss to
the Judgment Debtor. There was a huge gulf between the value represented by the auction price
and the real market value and there is no plausible or reasonable explanation for such difference.
Further, there is evidence on record that the auction proceedings were not conducted at the spot.
This fact casts serious doubts upon the sanctity of the auction and the entire process which led
to such auction. It is now well settled that the Court has the power to set aside any auction if the
same is proved to have been conducted in an unlawful or irregular manner or the property has
been sold at a throw away price. We are unable to agree with the assertion of the learned counsel
for the petitioner that inadequacy of the sale price cannot constitute basis for setting aside a sale.
Thus, in a situation where a property was sold for less than its value, by availing the benefit of
this rule, the judgment debtor or any other person holding interest in such property may
challenge the sale and retrieve the property from the purchaser by depositing the purchase price
together with 5% of such price in Court.
It needs no reiteration that an auction is always subject to confirmation by the Court. Till such
time that such confirmation is granted by the Court, after hearing all concerned parties and in
accordance with law, the powers available to the Court under Order XXI, Rules 89 and 90 can
always be exercised. Upon coming to the conclusion that a property has been sold for less than
its market value, the Court is not denuded of its jurisdiction to set aside such sale on account of
inadequacy of price alone. The record indicates that the executing court never confirmed the
auction. Therefore, no vested right had accrued in favour of the auction purchaser and the
argument of the learned ASC for the Petitioner in this regard is totally misconceived.
3rd case shams ul akbar case:
UDGMENT
' KHILJI ARIF HUSSAIN, J. -The petition has been filed under Article 185(3) of the
Constitution of the Islamic Republic of Pakistan, for leave to appeal against the judgment dated
27-3-2012 passed by the Islamabad High Court, Islamabad whereby Civil Revision No,,70 of
2011 filed by the petitioners was dismissed.
2. Brief facts to decide the petition are that respondent No,,3 filed a suit before the Civil Court
Swabi, which was decreed in his favor; that the decree was transferred to District Court,
Islamabad; that the judgment debtors did not put their appearance before the Executing Court;
consequently, moveable assets of judgment debtor were attached in pursuance of the execution
proceedings and finally the Court Auctioneer was appointed to conduct the auction of the
attached articles. The petitioners participated in the auction proceedings and being highest bidder
was declared successful and they deposited 1/4th of the purchase price at the spot to the Court
Auctioneer, whereas the remaining amount was deposited in the treasury within seven days of
the proceedings and the vehicles under auction were handed over to the petitioners.
3. The respondent No, 4 filed objection petition before learned Executing Court, which after
hearing the arguments, accepted the same and set aside the auction proceedings vide order dated
30-6-2011. The petitioners aggrieved from the said order, preferred appeal before learned
Additional District Judge, Islamabad which was dismissed vide order dated 14-7-2011. Against
the said order, the petitioners filed civil revision, which too met the same fate. Hence this
petition.
4. Learned counsel for the petitioners vehemently contended that the petitioners have purchased
the vehicles/immovable property in auction conducted by the Court. Auctioneer, deposited the
money in time and the vehicles were handed over to them and that learned Executing Court,
Appellate Court and Provisional court have committed error of law by setting aside the sale after
they acquired title in respect of the said vehicles.
5. We have taken into consideration arguments advanced by the learned counsel for the
petitioners and have carefully examined the available record.
6. Without going into the question whether the vehicles were owned by the
respondents/judgment debtors or that the decree holder instead of filing the suit against the firm
rightly filed the suit against respondents Nos.1 and 2 as the same was likely to prejudice interest
of either of the parties i.e. Decree holder/judgment debtors, it appears that the sale notice was
published in daily "Ausaf" on 25-5-2011 and on that very date vehicles were auctioned.
7. Order XXI, Rule 68 of the Civil Procedure Code provided that no sale without the consent in
writing of the judgment debtors can take place until after expiry of at least 15 days in case of
moveable property and 30 days in case of immovable property calculated from the date of which
a copy of promulgation has been affixed on the Court house of the Judge ordering the same. The
object of the said provision appears to be to provide an opportunity to judgment debtors or any
party A calming interest in the property to file their objections before the Executing Court and to
attract maximum numbers of bidders to participate in the auction to have the best possible price
of the property to be auctioned. But in the instant case the property was auctioned on the very
day when the notice was published in the newspaper. The non-compliance of the provision of
Rule 68, Order XXI is a material irregularity and as such the sale was rightly set aside by the
Executing Court.
8. In view Of the above, we are of the opinion that the impugned B judgment, of the High Court
is eminently reasonable and proceeds on cogent ground, to which no exception can be taken.
' The petition is dismissed being without merit and leave to appeal is refused.
