Syed Ayaz Haider vs National Bank of Pakistan S — 2024 CLD 1373 KARACHI-HIGH-COURT-SINDH

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Syed Ayaz Haider VS National Bank of Pakistan S.19---Civil Procedure Code (V of 1908), O.XXI Rr.89 & 90---Execution of decree passed by Banking Court---Auction proceedings---Sale---Setting aside sale on deposit of certain amount--Scope---Order XXI, R. 89 of the Civil Procedure Code, 1908, stipulates and allows any person who either owns the property or holds an interest in it by virtue of a title acquired before the sale to apply to have the sale set aside; this is contingent on such person depositing a certain amount in the Court---First condition for setting aside the sale is that the person must deposit a sum equal to five per cent of the purchase money for payment to the purchaser/successful bidder---Second condition is that the person must deposit an amount for payment to the decree-holder---Such amount is specified in the proclamation of sale for the recovery of which the sale is ordered---However, any amount received by the decree -holder since the date of the proclamation of sale is deducted from such/said amount---There is also a restriction that if a person has applied under O. XXI, R. 90 of the Civil Procedure Code, 1908, to set aside the sale of his immovable property, he cannot make or prosecute an application under this rule unless he withdraws his application under Rule 90; this R. also does not relieve the judgment-debtor from any liability he may have in respect of costs and interest not covered by the proclamation of sale. Citation Name: 2024 CLD 1373 KARACHI-HIGH-COURT-SINDH Syed Ayaz Haider VS National Bank of Pakistan S.19---Civil Procedure Code (V of 1908), O. XXI Rr. 89 & 90---Execution of decree passed by Banking Court---Sale---Setting aside of sale on deposit of certain amount---Purchase-amount deposited by the bidder with the stipulated time---Appellant / Judgment-debtor assailed orders passed by the Banking/Executing Court, whereby application under O.XXI, R.89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Objection raised by the appellant was that the purchaser /bidder, despite being explicitly directed by the Executing/Banking Court to deposit the residual 75% of the bid amount within 15 days, had failed to comply with said directive---Validity---Record (diary sheets etc.) showed that the purchaser-bidder was indeed directed to deposit the residual 75% of the bid amount within 15 days ; the purchaser-bidder, in response, deposited the said amount through a Pay Order---By the date mentioned on said Pay Order, if one were to calculate the duration, it unequivocally amounted to 15 days---Thus, it was incontrovertible that the purchaser-bidder had deposited the remaining 75% of the bid amount well within the stipulated time frame---Therefore, the contentions advanced by the appellant were fundamentally flawed and devoid of merit---No case of interference by the Appellate /High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances . Citation Name: 2024 CLD 1373 KARACHI-HIGH-COURT-SINDH Syed Ayaz Haider VS National Bank of Pakistan S.19---Civil Procedure Code (V of 1908), O. XXI Rr. 89 & 90---Execution of decree passed by Banking Court---Auction proceedings---Application to set-aside sale---Non-depositing of decretal amount---Effect---Appellant / Judgment-debtor assailed orders passed by the Banking/Executing Court, whereby application under O.XXI, R. 89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Ground taken by the appellant was that he had deposited (5% of the purchased) amount deposited by the purchaser---Validity---Though record (photostat copy of the Pay Order annexed by the appellant) reflected that he had deposited 5% amount, however, there was no explanation regarding the non-deposit of the decretal amount( specified in the proclamation of sale) by the appellant, which, as per the second condition of R.89 (b) of O.XXI, C.P.C., he /appellant( being person applying to set-aside sale) should have deposited for payment to the decree-holder---No case of interference by the appellate /High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances. Citation Name: 2024 CLD 1373 KARACHI-HIGH-COURT-SINDH Syed Ayaz Haider VS National Bank of Pakistan S.19---Civil Procedure Code (V of 1908), O. XXI Rr. 89 & 90---Execution of decree passed by Banking Court---Auction proceedings---Sale Setting aside of sale on deposit of certain amount---Appellant / Judgment-debtor assailed orders passed by the Banking /Executing Court, whereby application under O. XXI, R. 89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Contention of the appellant was that the auction proceedings were orchestrated without consideration of the actual market value or price of the property---Validity---Order XXI, R. 90, C.P.C, provides a legal avenue for the annulment of an auction / sale on the grounds of fraud or material irregularity---Conversely, O. XXI, R. 89, C.P.C, offers the judgment-debtor an alternative recourse to circumvent a sale post its valid execution ;this rule endows the judgment debtor with a final opportunity post-auction to have the sale rescinded upon payment of the decretal amount and an additional sum as compensation for the auction purchaser---In light of these provisions, these remedies are mutually exclusive---Once the appellant had embarked on a course of action in accordance with O.XXI R.89, C.P.C, it was not permissible for the appellant to assert that the auction proceedings were conducted without soliciting the actual market of the mortgaged property---Thus, the contention of the appellant was incongruous with the chosen course of action and was, therefore, untenable under the stipulations of O.XXI, R.89 of the Civil Procedure Code, 1908---No case of interference by the appellate /High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances. Citation Name: 2024 CLD 1373 KARACHI-HIGH-COURT-SINDH Syed Ayaz Haider VS National Bank of Pakistan S.19---Civil Procedure Code (V of 1908), O.XXI Rr. 89 & 90---Execution of decree passed by Banking Court---Auction proceedings---Purchaser-bidder---Vested right---Scope---Appellant / Judgment-debtor assailed orders passed by the Banking/ Executing Court, whereby application under O.XXI, R.89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Validity---Records revealed that the Executing Court had scheduled the sale of the mortgaged property on seven separate occasions, yet no one stepped forward to participate in the auction---It was only on the eighth attempt that the auction proceedings were successfully conducted---On said occasion, only respondent made an appearance and offered the highest bid---Said bid was accepted by the Court and respondent was consequently declared the successful bidder---Subsequent to said declaration, respondent fulfilled his obligation by depositing the remaining 75% of the bid amount, leading to the confirmation of the sale---As a result of said proceedings, a vested right had been conferred upon the auction-purchaser / respondent---Said right, once established, could not be disturbed or invalidated, thereby solidifying respondent's position as the lawful owner of the property-in-question---No case of interference by the appellate / High Court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances.

Syed Ayaz Haider vs National Bank of Pakistan S — 2024 CLD 1373 KARACHI-HIGH-COURT-SINDH

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