Mst. SAMRANA NAWAZ vs MCB BANK LTD — 2024 CLD 1186 SUPREME-COURT

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Mst. SAMRANA NAWAZ VS MCB BANK LTD. S. 19(7)(a) & (b)---Civil Procedure Code (V of 1908), O.XXI, R.90, second proviso---Execution of decree---Auction sale---Application to set aside sale on ground of irregularity or fraud---Deposit of amount or furnishing of security in court---Effect of clauses (a) and (b) of Section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance 2001 ("Ordinance") on the provisions of Rule 90 of Order XXI, C.P.C., particularly the second proviso thereof---Clauses (a) and (b) of Section 19(7) of the Ordinance are not comprehensive provisions regarding objections to the sale of property in the execution of a decree; they do not specify who can make objections or the grounds on which objections can be made---Therefore, these clauses cannot function independently of Rule 90 of Order XXI, C.P.C., regarding objections to the sale of property in the execution of a decree---It is worth noting that since Section 141, C.P.C., does not apply to applications under Rule 90 of Order XXI, C.P.C., 11 the procedure for investigating objections made under this rule is also summary, as provided in clause (a) of Section 19(7) of the Ordinance---Latter provision merely further prescribes a period of 30 days to complete the investigation of objections through a summary procedure---Clause (b) of Section 19(7) of the Ordinance provides for imposing a penalty of up to twenty percent of the sale price of the property if objections are found by the Banking Court to be malafide or aimed at delaying the sale of the property---This penalty amount, is to be deposited by the applicant, or its security furnished, as per the second proviso to Rule 90 of Order XXI, C.P.C., before the court entertains the application to set aside the sale---Thus, there is no conflict between the two provisions; clauses (a) and (b) of Section 19(7) of the Ordinance are only complementary to the provisions of Rule 90 of Order XXI, C.P.C., for the execution of decrees under the Ordinance---Banking Court is therefore bound to follow both the provisions in the matter of objections made to the sale of property in the execution of a decree. Citation Name: 2024 CLD 1186 SUPREME-COURTBookmark this Case Mst. SAMRANA NAWAZ VS MCB BANK LTD. O.XXI, R. 90, second proviso---Execution of decree---auction sale---application to set aside sale on ground of irregularity or fraud---Deposit of amount or furnishing of security in court---Purpose of the second proviso to Rule 90 of Order XXI, C.P.C.---Evidently, the purpose of the second proviso is to discourage frivolous objections---Condition stipulated in the second proviso for entertaining the application ensures that the rule is not misused to delay the completion of the sale and expeditious conclusion of the execution proceedings, and that the objections are made only by bona fide persons on valid grounds---If upon adjudication the application is found frivolous, the amount deposited or the security furnished, as the case may be, by the applicant is to be appropriated for awarding costs to the person(s) who suffer from the delay in completing the sale due to the filing of the application---Therefore, in determining the amount required to be deposited, the executing court should consider various factors such as the decretal amount, the time elapsed since filing the execution petition, the sale amount and the applicant's previous conduct, etc., and fix an amount reflective of the costs likely to be awarded to the affected party in case of dismissal of the application. Citation Name: 2024 CLD 1186 SUPREME-COURTBookmark this Case Mst. SAMRANA NAWAZ VS MCB BANK LTD. O. XXI, R. 90, second proviso---Execution of decree---auction sale---application to set aside sale on ground of irregularity or fraud---Deposit of amount or furnishing of security in court---Meaning and scope of the second proviso to Rule 90 of Order XXI, C.P.C.---Deposit of the amount, which is required under the second proviso, is not to be made by the applicant along with the application but rather it is to be made on the direction of the court.

Mst. SAMRANA NAWAZ vs MCB BANK LTD — 2024 CLD 1186 SUPREME-COURT

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