2014 S C M R 1371

 

[Supreme Court of Pakistan]

 

Present: Jawwad S. Khawaja and Mushir Alam, JJ

 

NADEEM AKHTAR TABASUM—Petitioner

 

Versus

 

MUSLIM COMMERCIAL BANK LIMITED and others—Respondents

 

Civil Petition No.139 of 2013, decided on 24th April, 2014.

 

(Against judgment dated 10-12-2012 of Islamabad High Court, Islamabad, passed in F.A.O. No.80 of 2012)

 

Civil Procedure Code (V of 1908)—

 

—-O. XXI, Rr. 23-A, 64, 65, 66 & 90—Constitution of Pakistan, Art.185(3)—Judgment-debtor failing to pay part of decretal amount—Auction of judgment-debtor’s property—Notice of auction—Publication in  the  newspaper—Judgment debtor aware of the auction proceedings—Banking Court decreed suit in favour of the Bank—Judgment-debtor failed to pay part of decretal amount, whereafter Banking Court confirmed auction of mortgaged property and dismissed objection petition filed by the judgment-debtor/petitioner—Validity—Judgment-debtor did not challenge the judgment and decree passed by the Banking Court—Mortgaged property was put to auction twice—First auction was set aside at the motion of the judgment-debtor and other objectors and re-auction was ordered—Judgment-debtor was fully aware of the re-auction proceedings—Judgment-debtor could not challenge the  auction on grounds that notice was sent to the incorrect address, as notice was also published in the newspaper—Part of decretal amount already paid by the judgment-debtor was adjusted by the bank/decree holder towards the outstanding liability of the judgment-debtor—Appeal filed by judgment-debtor against judgment of Banking Court was rightly dismissed in limine by the High Court—Petition for leave to appeal was dismissed accordingly and leave was refused.

 

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

 

Raja Muqsit Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

 

Sh. Muhammad Suleman, Advocate Supreme Court for Respondent No.2.

 

Date of hearing: 24th April, 2014.

 

ORDER

 

            MUSHIR ALAM, J.–-Petitioner through Civil Miscellaneous Applications Nos.1545 and 3794 of 2013 seeks to bring on record additional documents, the applications are granted subject to all just exceptions.

 

  1. Instant Civil Petition for Leave to Appeal is filed against the Order dated 10-12-2012, passed by a learned Division Bench of Islamabad High Court, Islamabad, whereby F.A.O. No.80 of 2012 filed by the petitioner against the order dated 20-12-2012 of the learned Judge, Banking Court, Rawalpindi confirming auction of the mortgaged property and dismissing the objection, petition of the appellant/Judgment Debtor, was as dismissed in limini.

 

  1. Learned Advocate Supreme Court for the petitioner, raised threefold contentions; firstly, that the impugned order dismissing F.A.O. in limine is bad in law; inasmuch as F.A.O. was dismissed in limine without notice to the other side, he placed reliance on Abid Hussain v. Mst. Afsar Jehan Begum and another (PLD 1973 SC 1). Secondly, provisions of Order XXI, Rules 64, 65 and 66 of C.P.C. were violated. and no notice was served on the petitioner and lastly that Bank has failed to disclose that the petitioner had already paid a sum of Rs.1,200,000 toward discharge of the liability, therefore auction was not justified under the facts and circumstances of case.

 

  1. Raja Muqsit Nawaz, learned Advocate Supreme Court appearing for respondent No.2, MCB, supported the impugned Order. According to him, suit was initially decreed on 15-1-2009, however, in F.A.O. decree was set aside and matter was remanded to be decided afresh. Again the suit proceeded, leave to defend application was dismissed and suit was decreed on 7-12-2009 in the sum of Rs.3,390,695 with cost of suit and cost of fund. No appeal was filed against the final judgment and decree by the petitioner. It is contended that decreetal amount was not paid therefore, the mortgaged property was put to auction per order of the Judge, Banking Court on 15-6-2010. It is argued that first auction was set aside on the application of petitioner and other objectors vide order dated. 20-1-2011 and re-auction was ordered. It is contended that re-auction was held on 5-7-2012 in accordance with law and after complying with all legal requirements. He further points out that the petitioner in order to mislead the Court has given a different address in the memo of CPLA. He lastly contended that objections to the execution of decree are liable to be dismissed for failure to deposit the decreetal amount in terms of Order XXI, Rule 23-A, C.P.C. and or failure to deposit 20% of the sum realized at the sale as provided for in terms of Order XXI, Rule 90, C.P.C.

 

4(sic.) Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for the petitioner, in rebuttal though conceded that failure to deposit security amount may entail dismissal of objections, he however, contended that where no directions were given by the Court to deposit the amount or to furnish security for the decreetal amount and objections are heard and decided on merits pressing such requirement at this stage is inconsequential. He relied upon the case of Mazharul Haq v. MCB PLD 1993 Lah. 706 (para 18 page 723).

 

  1. Heard arguments and perused the record. Contention of learned Advocate Supreme Court Raja Muhammad Ibrahim Satti, that the F.A.O. could not have been dismissed in limine, is misconceived. The case relied upon Abid Hussain v. Mst. Afsar Jehan Begum and another (PLD 1973 SC 1) is distinguishable, as in the cited case the appeal was dismissed by the learned single Judge as against the established practice of being heard and decided by a Division Bench whereas in the instant case the F.A.O was dismissed in limine by a learned Division Bench of the Islamabad High Court.

 

  1. As regard merits of the case, it is not denied that no exception to the judgment and decree dated 7-12-2009 was taken by the petitioner/Judgment debtor. Mortgaged property was put to auction twice; firstly on 15-6-2010, which auction was set aside at the motion of the petitioner and other objectors vide order dated 20-1-2011 and re-auction was ordered. Petitioner was fully aware of the auction proceeding, he has not denied that the address mentioned in the notice issued under Order XXI, rule 66 for the second auction is not that of the petitioner/Judgment Debtor, record and the order of the learned Judge, Banking Court show that the notice was also published in the News Paper dated 25-5-2012 for the auction held on 5-7-2012. Petitioner cannot now turn around and challenge the auction for want of notice.

 

  1. Contention of learned Advocate Supreme Court for the petitioner that the Decree holder Bank suppressed payment of Rs.1,200,000 and managed the auction. Contentions are preposterous. We have examined the order of the learned Judge, Banking Court, such contention of the Judgment Debtor was duly considered. It is noted that the statement of account provided by the Decree Holder/M.C.B. shows adjustment of said amount towards the outstanding liability of the petitioner/judgment Debtor.

 

  1. In view of the above, we are of the firm view that the impugned order dated 10-12-2012 of the learned Division Bench of the Islamabad High Court is in consonance with facts and law, does not call for any interference. Accordingly, leave is refused and petition is dismissed.

 

MWA/N-4/SC                                                                                     Petition dismissed.