Mst. KHADIJA BIBI vs JUDGE BANKING COURT S — 2025 CLD 1226 LAHORE-HIGH-COURT-LAHORE

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Mst. KHADIJA BIBI VS JUDGE BANKING COURT S. 12(2)---allegation of fraud, misrepresentation or want of jurisdiction---Scope of provisions under S. 12(2) of Civil Procedure Code, 1908 (C.P.C.) is restricted and the applicants are obliged to prove that fraud or misrepresentation is committed by the adversary in connection with the proceedings of the Court and have to prove the following aspects. Citation Name: 2025 CLD 1226 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. KHADIJA BIBI VS JUDGE BANKING COURT S. 15---auction proceedings, challenging of ---Past and closed transaction---Scope and effect---application moved by auction-purchaser before the Banking Court for delivery of possession of the property purchased by him was dismissed, however, his prayer (for delivery of possession) was allowed by the High Court by accepting his constitutional petition---Legal heirs of judgment-debtor (mortgagee /customer of bank) filed an application under S. 12(2), C.P.C (applicants) before the High Court against acceptance of constitutional petition filed by the auction-purchaser (respondent )---Plea of the applicants was that that in view of the law laid down in case reported as National Bank of Pakistan and 117 others v. SaF Textile Mills Ltd and another PLD 2014 SC 283 confirming judgment of the High Court in case reported as Muhammad Umer Rathore v. Federation of Pakistan 2009 CLD 257 (judgments-in-question), S. 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ('the Ordinance 2001') had been declared ultra vires; that since possession to the respondent (auction-purchaser) had not been delivered prior to the passing of judgments-in-question, hence, the sale be set-aside as per ratio of the judgments-in-question---Validity---Though under the judgments-in-question S. 15 of the Ordinance 2001 was declared ultra vires but for totally independent reasons and the findings of this/High Court to the extent of past and closed transactions were neither considered nor any observation was made---Supreme Court of Pakistan in case reported Muhammad Moizuddin and others v. Mansoor Khalil and another (2017 SCMR 1787), while keeping in view the effect of art. 10-a of the Constitution, set-aside the sale on account of non-delivery of possession before the cutoff date---Supreme Court of Pakistan while elaborating upon the past and closed transaction allowed the petition with the observations that cases where sale itself had not been challenged, or such challenge had remained unsuccessful, and the sale proceeds stood adjusted towards outstanding liability of the principal debtor, and sale deed in favour of the auction purchaser stood registered under the provisions declared ultra vires the Constitution, would be saved from the effect of such declaration being past and closed transactions---In the present case, the respondent purchased the mortgaged property of customer / judgment-debtor (predecessor of the applicants) for a consideration of Rs.885,000/-.---after deposit of whole auction amount respondent /Bank issued relevant certificate and mutation was also sanctioned in his favour by the Revenue Officer---Said judgment-debtor (predecessor of the applicants) never challenged the auction proceedings during his lifetime, rather he filed an application in the Bank by contending that after auction of his property some amount was lying in his account which may be returned to him while (further contending that) he had no objection to the auction proceedings ; he received the remaining sale proceeds (amounting to Rs.79,405/-) through Credit Cash Voucher by putting his signatures and thumb impressions---In such way, the applicants were estopped from initiating any further proceedings to challenge the auction or subsequent events---application under S.12(2) C.P.C, filed by legal heirs of customer / judgment-debtor, being meritless and not maintainable, was dismissed. Citation Name: 2025 CLD 1226 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mst. KHADIJA BIBI VS JUDGE BANKING COURT S. 22---Civil Procedure Code (V of 1908), S. 12(2)---Constitution of Pakistan, Art. 199---Order passed by the Banking Court, assailing of---Constitutional petition---Maintainability---Nature of order passed by Banking Court---Application moved by auction-purchaser before the Banking Court for delivery of possession of the property purchased by him, dismissal of---Whether interlocutory order or not---Remedy---Scope---Application under S. 12(2) C.P.C---Ingredients of fraud / mis-representation, missing of---Legal heirs of judgment-debtor (mortgagee /customer of bank) filed an application under S. 12(2), C.P.C (Applicants) before the High Court against the auction-purchaser (respondent) challenging the order passed, in constitutional petition, which was filed by respondent against dismissal of his application for delivery of possession of the property purchased by him(order under challenge)---Plea of the applicants was that the order under challenge was appealable under S.22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 but the respondent (auction purchaser) challenged the same by invoking constitutional jurisdiction of the High Court, hence, the constitutional petition was not maintainable---Validity---Record revealed that respondent (auction purchaser) moved an application before the Banking Court for delivery of possession of the property purchased by him through auction but the same was dismissed on account of late filing of statement of accounts---Said dismissal order was assailed in the constitutional petition being interlocutory order as under S. 22 of the Ordinance, 2001, no appeal lies against an interlocutory order--- Thus , the plea of applicants was beyond the scope of S. 12(2), C.P.C.---Provisions of S.12(2) C.P.C. can only be pressed into service when fraud has been practiced upon the Court during the proceedings of case, and order, judgment and decree is obtained on the basis of such fraud and misrepresentation or want of jurisdiction---Applicants (legal heirs of customer /judgment-debtor) failed to substantiate any allegation of fraud, misrepresentation as per mandate of S. 12(2), C.P.C., to upset or overturn the order/judgment of the High Court having been passed in its constitutional jurisdiction---Application under S. 12(2) C.P.C, being meritless and not maintainable , was dismissed.

Mst. KHADIJA BIBI vs JUDGE BANKING COURT S — 2025 CLD 1226 LAHORE-HIGH-COURT-LAHORE

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