IN THE SUPREME COURT OF PAKISTAN 
(REVIEW JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL REVIEW PETITION NO.383/2005 IN CIVIL APPEAL NO.670/2002 
(Against the judgment dated 27.6.2005 of this Court passed in Civil Appeal No.670/2002) 
 
 
Zakaria Ghani and 4 others 
 
…Petitioner(s) 
VERSUS 
Muhammad Ikhlaq Memon and 8 others 
 
…Respondent(s) 
 
For the Petitioner(s): 
Mr. Muhammad Akram Sheikh, Sr. ASC 
 
 
For Respondent No.1: 
Mr. Khalid Anwar, Sr. ASC 
 
 
Date of Hearing: 
03.11.2015 
… 
JUDGMENT 
 
MIAN SAQIB NISAR, J.- This Review Petition seeks to impugn the 
judgment of this Court dated 27.6.2005 in terms whereof Civil Appeal No.670 
of 2002 filed by the Respondent No.1, Muhammad Ikhlaq Memon, against the 
judgment of a Division Bench of the High Court of Sindh was allowed. The 
essential facts of the case, as set out in the judgment under appeal, are that 
United Bank Limited obtained a decree from the Banking Tribunal constituted 
under the Banking Tribunals Ordinance, 1984.  Thereafter, the Bank filed 
execution 
proceedings 
for 
recovery 
of 
the 
decretal 
amount 
of 
Rs.103,789,753.00. A learned single judge of the High Court of Sindh, acting 
as a judge of the Banking Court, passed an order 8.10.1988 directing the sale of 
three properties belonging to the Petitioners by the Nazir of the Court.  It is 
material to note, for purposes of deciding the present Review Petition, that the 
C.R.P.No.383/2005 
 
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original court order clearly stated that the sale was to be effected by means of 
sealed bids (i.e. not a public auction) after issuing advertisements in different 
newspapers. These were widely circulated newspapers, namely, Jang, Dawn 
and Millat.   
2. 
A sale proclamation was issued for the first time on 15.5.1999.  Despite 
the fact that the papers enjoyed a wide circulation no offer was forthcoming 
and this is a matter which we will revert to in a later part of this judgment. The 
process was repeated on 24.7.2000 and once again no offers came forth. A 
third endeavour was made by sale proclamation issued on 24.10.2000 but yet 
again the Nazir did not receive any offer. The Nazir was directed to make a 
fourth attempt and accordingly a sale proclamation was issued on 26.1.2001.  
By now about 1½ years had elapsed since the issuance of the first 
proclamation. It was this sale proclamation which bore fruit and the 
Respondent No.1 came forward with offers for all three of the properties in the 
sum of Rs.1,19,78,600, Rs.55,53,900, and Rs.57,47,700 respectively.  He 
attached pay orders of Rs.11,97,860, Rs.2,55,390 and Rs.5,74,770, alongwith 
his offer. The matter was put up before the learned single judge and the 
Respondent No.1 was requested to enhance the offer which he duly did.  Thus 
the original total of the three offers which came to Rs.2,32,80,280 was 
enhanced to Rs.2,41,00,000.  He was directed by the Court to deposit the price 
within one month.  It is pertinent and relevant for purposes of present case to 
note that on 15.3.2001 (i.e. within the stipulated period of 30 days) he submitted an 
application bearing CMA No.619 of 2001 to the Banking Court seeking a 
direction from the Court that he should be given vacant possession of the 
properties. To establish his bona fides he attached therewith photocopies of 
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three pay orders for the balance amount of the sale consideration. Thus it is 
clear that he had made the financial arrangements for paying the money within 
30 days. The Banking Court by an order dated 26.2.2001 directed the 
Respondent No.1 to take steps in terms of Order 21, Rule 85 CPC.  It may be 
noted that this was for the first time an order was passed in terms of the CPC.  
The original order, which required sealed tenders instead of a public auction, 
was obviously not passed under the CPC but in terms of the powers conferred 
on the Banking Court under the Banking law to adopt any procedure deemed 
appropriate by it for purposes of execution of the decree.  Though Order 21, 
Rule 85 CPC contemplates a time frame of 15 days commencing from the 
relevant date as mentioned in the said provision of law, in this particular case 
the order was passed obviously conferring additional time on the Respondent 
No.1 and, in fact, he deposited the balance amount three days later on 
30.3.2001.  The Banking Court had directed that the case should be heard on 
the next date namely 31.3.2001.  The Banking Court by means of an order 
dated 9.4.2001 noted that the Respondent No.1 had deposited the balance 
amount of the sale and directed the Nazir to take steps for confirmation of the 
sale.  Thus the bid was accepted by the court.  
3. 
At this point of time it is necessary to examine the conduct of the 
Petitioner.  Although the Petitioner had been served he did not raise any 
objection whatsoever, despite entering appearance, to the original order passed 
for the sale of the property through sealed tenders and not by way of public 
auction under the CPC.  He also did not raise any objections whatsoever in 
relation to the framing of the four sale proclamations. Specifically, he did not 
raise any objection, either at that stage or at any later stage, in the ensuing 
C.R.P.No.383/2005 
 
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litigation all the way upto this court to the text of sale proclamation. He, 
however, preferred special HCA No.94 of 2001 against the said order dated 
26.2.2001.  It is important to note that he had a clear cut legal right to challenge 
the order passed in relation to the sale of properties by means of two alternative 
methods.  One was to file an application under Order 21, Rule 89 and the other 
was to file an application under Order 21, Rule 90.   
4. 
There is a great deal of difference between these two provisions of law.  
Under Order 21, Rule 89 a judgment debtor is not obligated to show any legal 
infirmity in the order of sale.  He has an unqualified right to have the sale set 
aside provided he complies with the conditions laid down therein, namely, that 
he should deposit the full decretal amount in court plus 5% to be paid to the 
auction purchaser.  The time period for making such an application is 30 days.  
Admittedly he failed to do so and accordingly, it follows, by necessary 
implication of law that a vested right accrued in favour of the auction 
purchaser. The second provision, namely, Order 21, Rule 90 CPC proceeds on 
a different basis.  In order to succeed it is mandatory for the judgment debtor to 
satisfy the court, on the merits, that the sale should be set aside on the ground 
of a material irregularity, or fraud, in publishing or conducting it.  Yet another 
condition is prescribed by means of the proviso thereto which stipulates that no 
sale shall be set aside on the ground of irregularity or fraud unless, upon the 
facts proved before the Court, it is established that the judgment debtor has 
sustained substantial injury by reason of such irregularity or fraud.  Yet another 
condition is prescribed by the second proviso which states that no application 
shall be entertained in terms of this provision of law unless and until the 
judgment debtor deposits an amount equal to 20% of the sum realized at the 
C.R.P.No.383/2005 
 
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sale or furnish such security as the court may direct.  These are stringent 
conditions which make the policy of the law crystal clear.  A mere allegation is 
not sufficient.  It has to be established that not merely an irregularity but a 
material irregularity has taken place, or, in the alternative, that fraud has been 
perpetrated in the process of carrying out the sale.  Then is super added the 
requirement that even if these conditions are complied with the judgment 
debtor must satisfy the court that he has sustained a substantial injury by reason 
thereof.  Finally, in order to discourage frivolous applications intended to delay 
the execution of the decree it is mandatory on the judgment debtor to deposit 
20% of the sale amount or furnish such security as the court may direct.  It is 
also material to note that once again a time frame of 30 days has been specified 
under article 166 of the Limitation Act in this behalf.  Failing compliance with 
the provisions of Order 21, Rule 90 once again the inevitable consequence is 
that the judgment debtor is precluded from making any such allegation in order 
to challenge the validity of the sale at a subsequent stage.  The above is further 
clarified by the provisions of Order 21, Rule 92 CPC which lays down 
explicitly the consequences of a failure to make an application under Order 21, 
Rule 89 or Order 21, Rule 90.  The said provision states that where no such 
application has been made under the above mentioned rules, or where such 
application has been made and disallowed, it becomes mandatory on the court 
to make an order confirming the sale and thereupon the sale becomes absolute.  
These provisions leave no doubt for any ambiguity in the matter.  The plaintiff 
has not merely a legal right flowing from the contract between the parties but a 
statutory right crystallized in the form of a decree passed by a court of 
competent jurisdiction. The law has laid down the only methods available in 
C.R.P.No.383/2005 
 
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order to challenge such a crystallized right vesting in a plaintiff.  If a judgment 
debtor chooses not to take advantage of the opportunities afforded to him by 
the law the matter comes to an end (In a later part of this judgment we will consider 
the case law which discusses whether an application under section 151 CPC seeking to 
circumvent the failure to apply under Order 21, Rule 89 or Rule 90 CPC is maintainable or 
not).  
5. 
By means of the Review Petition a number of arguments were advanced 
on behalf of the Petitioner.  It was stated that the approximate value of the three 
properties was Rs.13,95,00,000.  It was claimed in the Review Petition that this 
value was supported by means of a sworn affidavit.  The contention raised was 
that the properties were sold for a sum of only Rs.2,41,00,000 which was 
completely out of proportion and out of line with the actual value.  Now it is 
indeed true that there is a very great difference between an estimated price of 
Rs.13,95,00,000 and the amount which was actually recovered. However, 
when we examine the statement under Order 21, Rule 66 CPC filed before the 
Banking Court we find that the total figure includes the price of two other 
properties other than the three which are in dispute. Admittedly these 
properties do not form the subject matter of the present proceedings.  
Accordingly, if we confine ourselves to the three properties which are in 
question we find that the total value as estimated in terms of the statement 
under Order 21, Rule 66 CPC amounts to Rs.29.5 million.  This is not very far 
different from the actual figure at which the properties were sold which was 
Rs.24.1 million.  Accordingly the first submission made by the learned counsel 
cannot be accepted.   
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6. 
Another major submission made on behalf of the Petitioner was that the 
first order passed by the Banking Court directed that the sale should be made 
pursuant to Order 21, Rule 66 CPC. It was contended that the CPC requires 
sales to be by public auction and accordingly it was not open to the learned 
court to subsequently invite tenders by means of sealed bid.  It was submitted 
that this was a fundamental illegality which went to the root of the case.  In 
support of this contention our attention was drawn to the first order dated 
8.10.1998 and paragraph 3 of the said order was read out before us. A perusal 
of the above paragraph would show however that it does not support the 
contention advanced by the Petitioner.  It is indeed true that the request made 
was for the sale of the properties and a further reference was made to the 
statement filed under Order 21, Rule 66 CPC by the counsel appearing in the 
case.  However, the actual order passed by the court which follows in the very 
next statement makes no reference at all to Order 21, Rule 66.  On the contrary, 
it categorically states that the sale is to be effected by the Nazir of the Court by 
inviting sealed bids through advertisement in the daily newspapers.  There can 
be no doubt about the fact that the Banking Court was entitled in terms of the 
then banking law applicable, and indeed, in terms of the present banking laws 
as well, to follow any procedure deemed appropriate by it.  Thus no objection 
can be taken to the order of sale. It was clearly not passed under the CPC.  This 
finding is also sufficient to dispose of the accompanying submission which was 
to the effect that once an order has been passed stipulating that the sale is to be 
made under the CPC it is not open to the court to switch over to any alternative 
procedure. Although the correctness of this assertion is even otherwise 
doubtful in view of the case law including several judgments by this court, to 
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which reference is made in a subsequent part herein, the contention is ill 
founded on the factual plane.   
7. 
A further criticism which has been advanced on behalf of the Petitioner 
against the judgment in appeal of this Court is relatable to the observation that 
it was a “negotiated sale”.  It is contended that this observation is not justified.  
However, we find from the record that the total amount of the sealed bids 
amounted to Rs.2,32,00,000. This was subsequently as a result of the 
proceedings which took place in open court, enhanced to Rs.2,41,00,000.  Thus 
this criticism also falls to the ground.  Exception has also been taken to the 
observation made in  paragraph 12 of the judgment of this Court in which it 
was stated “it was for the first time through order dated 27.3.2001 that the Banking 
Court by making a reference to Order 21, Rule 85 had decided to follow the procedure 
as laid down by CPC”.   However, as has been clarified in the above the factual 
position is the exact opposite since right at the inception the Banking Court had 
passed an order for the sale of the properties through sealed bids which by no 
stretch of the imagination can be called an order passed under the CPC.  This 
argument therefore accordingly equally fails.    
8. 
We now turn to the next argument advanced on behalf of the Petitioner 
which was that the payment was made belatedly. Now we have already taken 
note of the fact that the learned judge had right at the inception decided not to 
follow the time frame laid down in the CPC. Accordingly, he had fixed the 
time of one month within his own discretion. This he was entitled to do.  
Within that period of one month, as pointed out earlier, the Respondent applied 
by means of CMA No.619 of 2001 for an order that when the property would 
be transferred to him he should obtain vacant possession.  With that application 
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he attached photocopies of pay orders issued by the bank for the balance 
amount of the sale consideration.  It is therefore clear that he had made 
arrangements for making payment well within the period of 30 days.  On this 
the banking court on 27.3.2001 directed the Appellant to take further steps in 
terms of Order 21, Rule 85 CPC which contemplates a period of 15 days from 
the inception.  The Respondent deposited the amount within 3 days on 30th of 
March, 2001 and this amount was accepted by the banking court which, by 
means of the order dated 9.4.2001, directed the Nazir to take steps for 
confirmation of the sale.  All these steps were well within the discretion of the 
Banking Court and no criticism can be attached in relation thereto.  This 
argument therefore can also not succeed.  
9. 
A major grievance which was made by the learned counsel of the 
Petitioner was that the Respondent No.1 withdrew the money deposited in 
Court by him within 60 days and hence it was unfair to allow him the benefit of 
the sale in his favour.  We have noticed that no such ground has been raised 
either in the Review Petition or in the certificate filed by the learned counsel in 
support thereof.  However, we have nevertheless examined it carefully.  The 
facts are set out in the order passed by the Court on 31.5.2001.  By a perusal of 
this order we find that the hearing of the case was being delayed at the request 
of the counsel for the Petitioner. It was by reason thereof that the learned 
counsel appearing for the Respondent contended, as is evident from the order, 
that the existing state of affairs was operating to his prejudice inasmuch as 
although he had deposited the entire sale consideration the matter was being 
held up indefinitely. He further stated that he did not believe in interest on 
Islamic grounds and hence the suggestion that the money deposited be kept in a 
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profit bearing account was not acceptable to him.  His proposal therefore was 
that, without prejudice to his claim, he should be allowed to withdraw 90% of 
the amount deposited by him which, in case he succeeded, would be re-
deposited by him. The order records the fact that the counsel for the Petitioner 
gave his consent to this proposal. The Court thereafter, after recording the 
consent, observed that in the circumstances the Respondent would be entitled 
to withdraw the amount of 90% without prejudice to his legal rights and in case 
he succeeded he would redeposit the same in court.  In the event of his failure 
to deposit the said amount the 10% would be forfeited. This was a consent 
order and we do not see how, in the presence of this order, it is now open to the 
Petitioner to raise an objection thereto. The balance amount of 90% was of 
course re-deposited in Court once the appeal had been allowed in favour of the 
Respondent and no further objection in this regard has been raised.  It should 
be added, however, that when the present Review Petition was filed a stay 
order was granted so in consequence, although the appeal was decided in 
favour of the Respondent as far back as 7.6.2005, for the ensuing period of 10 
years the Respondent has been denied the possession of the property which he 
had acquired through payment of the full amount in court. The Petitioner has 
thus enjoyed the benefit of the property for an additional 10 years while the 
Respondent has been out of pocket. In these circumstances the grievance of the 
Petitioner that the Respondent only deposited the money for a period of 60 
days and is claiming title on the basis thereof is not justified and cannot be 
accepted.   
10. 
It was also contended that a higher offer had been made by a company 
known as Star Cotton Corporation Ltd and this offer was disregarded without 
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any justification.  This question is discussed in paragraph 17 of the judgment of 
this court which refers to a so called higher bid of Rs.28 million by Star Cotton 
Corporation (Pvt.) Ltd. Karachi and it has been noted that there is nothing on 
the record to show that it was actually made to the Court at the relevant time.  
It also does not find any mention in the court’s order dated 9.4.2001.  This 
finding is supported by the documentary evidence on the record.  An undated 
offer by Star Cotton Corporation is available on the record and that too is 
addressed to the Nazir of the Sindh High Court. There is nothing whatsoever 
on the record which indicates that it was brought to the notice of the court.  
Certainly there is no question of our conducting an independent enquiry into 
the matter in review proceedings. It was the duty of the Petitioner to have 
brought on record any evidence which indicated that the offer was placed 
before the court on or before the date on which the operative orders were 
passed. This plea therefore cannot be entertained. In this connection, it may 
also be noted that again this is a point which is not raised either in the review 
petition or the certificate in support thereof.  It appears, on the face of it, to be 
an after thought.   
11. 
Although the above is sufficient to dispose off the case, in view of the 
fact, that important questions of law have been raised in relation to the mode of 
execution of banking decree we have considered, the case law in relation to this 
subject in some depth and we now turn to an examination of the same. 
12. 
A convenient point to start with is the landmark judgment of this court in 
the case of Hudaybia Textile Mills Limited vs. Allied Bank of Pakistan Ltd. 
(PLD 1987 SC 512) which has been relied upon by both sides. The facts of the 
case, in brief, are that the Bank obtained a decree against the judgment debtor 
C.R.P.No.383/2005 
 
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pursuant to which an order was passed for the auction of the attached property.  
It is important to note that no objection was taken by the judgment debtor to 
the proposed terms and conditions of the auction proclamation. After the 
auction had been carried out, but prior to the confirmation thereof, an 
application was filed by the judgment debtor under section 151 CPC for 
holding it in abeyance on the ground of negotiations being carried on between 
the judgment debtor and the Bank. It appears that thereafter a settlement was 
arrived at between them. The question however arose about the rights of the 
Auction Purchaser which, as pointed out above, had yet to be confirmed. The 
executing court passed an order to the effect that since the judgment debtor had 
paid up the agreed amount to the decree holder the auction was to be set aside 
and the property would be restored to him. Insofar as the Auction Purchaser 
was concerned it was ordered that he was entitled to 5% of the amount in terms 
of Order 21 Rule 89 CPC which should be paid to him. It should however be 
noted that no application had been filed under Order 21 Rule 89 CPC and 
indeed, by that time, it was already barred by limitation.  Thus the judgment 
debtor’s request was made under section 151 CPC and the important question 
was whether this request could be allowed under law.  
13. 
To continue with the narration of events thereafter the Auction Purchaser 
filed an application under Order 21 Rule 89/92 stating that the auction should 
be confirmed in the above facts and circumstances. On that application the 
executing court passed an order stating that an objection petition had been filed 
in time under section 151 C.P.C, and since the negotiations were proceeding 
which ultimately succeeded the fact that there was a violation of the provisions 
of Order 21 Rule 89 inasmuch as neither the sum of 5% had been deposited 
C.R.P.No.383/2005 
 
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and nor had the decretal amount been paid, this was not essential. Accordingly 
the application of the Auction Purchaser was dismissed with the observation 
that he would be entitled to 5%. Against this an appeal was filed before a 
division bench of the Lahore High Court which accepted the contention of the 
Auction Purchaser.  The relevant passage of the division bench order is 
reproduced below: 
“An objection to the sale of immovable property in execution of 
decree could be taken either under rule 89 or rule 90 of Order 21 
C.P.C. It is conceded that Hudaybia Mills before filing application 
dated 18th September, 1985 (C.M. No. 103-B/1985) did not deposit 
in Court firstly, for payment to the purchaser, a sum equal to 5 per 
cent of the purchase money; and secondly, for payment to the 
decree-holder the amount of which the sale was ordered. Rule 89 
of Order 21 C.P.C. makes it a condition precedent that the above 
said two deposits be made in the Court before applying for setting 
aside of the sale. The sale could not be permitted to be challenged 
through an application under section 151 C.P.C. It was held in 
Nanhelal and another V. Umrao Singh (AIR 1931 P.C. 33) that 
when once a sale had been effected, a third party’s interest 
intervene and there is nothing to suggest that the provisions of 
Order 21, Rule 2 or 89 are to be disregarded. It was further held 
that after a sale is duly held, the Court cannot refuse to confirm 
sale on the ground that the decree-holder and judgment debtor say 
that the decree has been satisfied.” 
 
14. 
Insofar as of the objection of the judgment debtor which was filed under 
section 151 CPC is concerned the finding is reproduced below:-  
“As such, Hudaybia Mills, one of the judgment-debtors whose 
property was sold by the Court auctioneer having failed to make 
requisite deposit under rule 89 of Order 21, C.P.C., the Court was 
left with no choice except to confirm the sale. It was argued by the 
learned counsel that application dated 18th September, 1985, was 
filed under section 151 C.P.C. and as such, no deposit was required 
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to be made by the judgment-debtor. In alternate, the learned 
counsel contended that the said application could be treated as an 
application under Order 21 rule 90 C.P.C. This argument is 
without any force and cannot be given any credit. The inherent 
powers under the Code of Civil Procedure can be exercised only 
where no specific provision of law is available. In the instant case, 
as held above the sale of attached property in execution of decree 
could be challenged either under rule 89 or under rule 90 of Order 
21, C.P.C. The argument that the said application be treated as an 
application under Order 21 rule 90, C.P.C. cannot be accepted 
because the judgment debtor, in the said application did not allege 
any material irregularity or fraud in publishing or conduction of 
sale by the Court auctioneer. Secondly, the allegation of material 
irregularity and fraud by the Court auctioneer before us seems to 
be an afterthought, and thirdly, no finding on material irregularity 
or fraud could be recorded without recording evidence. As no such 
objection was taken before the executing Court, these questions 
were not adverted to and as such, cannot be permitted to be 
canvassed by the judgment-debtor, for the first time, before us.” 
 
15. 
The judgment debtor took the matter in appeal to this court. In relation to 
the finding by the executing court that it was not mandatory to deposit 5% 
under Order 21 Rule 89 the finding of this court is as under:- 
  
“Having regard to these principles we may now advert to the facts 
of present case. The sole ground that prevailed with the learned 
Single Judge to set aside the sale and refuse confirmation was the 
fact that the decree had been adjusted or satisfied to the satisfaction 
of the decree holder. There was no objection raised, nor is any such 
objection being pressed before us, that there was any fraud or 
irregularity in the conduct of the auction, or the price offered by 
the auction purchaser was inadequate. There is no doubt that the 
executing Court had a discretion to choose the mode of execution 
as it deemed fit but it cannot be denied that the Court by its order 
dated 3rd July, 1985, clearly and unequivocally directed that the 
attached property be put to sale through public auction. The 
perusal of the various orders passed by the executing Court also 
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clearly show that the Court had adopted the procedure provided in 
Order XXI C.P.C. for the sale through public auction of the 
property attached. Even the terms and conditions of the auction 
were expressly determined in accordance with Order XXI rule 66, 
C.P.C. Further in his order dated 5th June, 1986 whereby the 
learned Single Judge finally refused to confirm the sale, it is 
conceded that the judgment debtor had to deposit the 5% of the 
purchase money and the decretal amount which are the 
requirements of the Order XXI rule 89, C.P.C. The difficulty was 
overcome by taking the view that such deposits were not the 
essence of the proceedings. This view is not based on any 
recognized principle of law.” (Emphasis supplied) 
 
16. 
This Court further observed that the principles applicable in such cases 
were laid down by the Privy Council in the case of Nanhelal and another Vs. 
Umrao Singh (AIR 1931 Privy Council 33) in which it was held as under: 
“In the first place, Order XXI, rule 2, which provides for 
certification of an adjustment come to out of Court, clearly 
contemplates a stage in the execution proceedings when the matter 
lies only between the judgment-debtor and the decree-holder, and 
when no other interests have come into being. When once a sale 
has been effected, a third party’s interest intervenes, and there is 
nothing in this rule to suggest that it is to be disregarded. The only 
means by which the judgment-debtor can get rid of a sale, which 
has been duly carried out, are those embodied in rule 89 viz by 
depositing in Court the amount for the recovery of which the 
property was sold, together with 5 per cent of the purchase money 
which goes to the purchaser as statutory compensation, and this 
remedy can only be pursued within 30 days of the sale; see Article 
166, Sch., Lim. Act, 1908. That this is so is, in their Lordships 
opinion, clear under the wording of rule 92, which provides that in 
such a case (i.e. where the sale has been duly carried out), if no 
application is made under rule 99;   
“The Court shall make an order confirming the sale and thereupon 
the sale shall become absolute.” 
 
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17. 
This court thereafter considered what should be the general approach in 
such matters. In this connection reliance was placed on the following extract 
from American jurisprudence (2nd Edition) Volume 47, Article 178 at page 440 
in which the general principles governing the discretion to grant or refuse 
confirmation of a judicial sale are discussed as below:-  
 
“But apart from the above another vital principle is involved. In 
American Jurisprudence (2nd Edition) Volume 47, Article 178 at 
page 440, the general principles governing the discretion to grant 
or refuse confirmation of a judicial sale are discussed. It has been 
observed:- 
“Although in some jurisdictions a more restrictive rule is 
followed in cases where it is urged that confirmation should 
be refused on the sole ground that an advance or upset bid 
has been received, the confirmation of, or refusal to 
confirm, judicial sales, as a general rule, rests largely 
within the discretion of the trial Court, and such 
determinations ordinarily will not be reviewed except for 
manifest abuse of such discretion. The discretion to be 
exercised is not arbitrary, however, but should be one 
which is sound and equitable in view of all the 
circumstances. The Court must act in the interest of fairness 
and prudence, and with a just regard to the rights of all 
concerned, and the stability of judicial sales. Thus, if the 
sale was fairly conducted and the property sold for a 
reasonable and fair value under the circumstances, the 
Court is ordinarily required in the exercise of its judicial 
discretion to confirm the sale.” 
 
18. 
The Court then proceeded to lay down the following principles of law:-  
 
“The above passage from the American Jurisprudence clearly 
points out the dominant principle of law in such cases, namely, the 
stability of judicial sales. In this context the argument that since 
the Court was vested with the wide discretion to choose any mode 
of execution of the decree, it can likewise refuse confirmation of 
sale on any ground it chooses is without substance. Judicial 
discretion vested by statutory provisions cannot be construed in 
such a manner as it will arm the Court with arbitrary powers and 
would inevitably destroy the public confidence in the stability of 
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the judicial sales as pointed out by the American Jurisprudence. 
Therefore, on facts as well as on principle the learned Single Judge 
went wrong in refusing confirmation on the ground that after the 
sale the decree had been satisfied. Even otherwise once the Court 
had made up its mind to execute the decree by attachment and sale 
by public auction, as long as the order so directing was in the field, 
the discretion vesting in it under section 8(3) of the Ordinance 
stood exhausted and a particular course of proceedings was 
brought into motion which had to culminate in a result 
contemplated by legal principles, and this course could not be 
diverted on the assumption that the executing Court had discretion 
to choose any mode of execution. In the premises the question of 
confirmation was to be regulated either by the C.P.C. or equitable 
principles under the provisions thereof and general principles as 
pointed out above. From any angle the refusal of confirmation by 
the learned Single Judge is unsustainable and the auction purchaser 
was entitled, in the circumstances of the case to the confirmation of 
the auction sale. It was urged that the discretion was properly 
exercised because the purchaser himself was present when the 
negotiations between the decree-holder and the judgment debtor 
were taking place in Court and had applied at one stage for 
withdrawal of deposit. This argument is without substance because 
purchaser has not been shown to be a consenting party to the 
arrangement between the decree-holder and the judgment debtor. 
He had no doubt at one stage applied for withdrawal of the amount 
deposited by him on the ground that there was some clog on the 
title of the judgment debtor in the property subjected to Court sale 
but before any orders were passed on this application it was 
withdrawn stating that the same was made under wrong advice and 
the Court dismissed the application. It is well recognized that a 
proceeding withdrawn with the permission of the Court is wiped 
off from the record as non-existent.” (Emphasis supplied) 
 
19. 
In the circumstances the appeal was dismissed. This is an extremely 
important judgment which was and is binding on all subsequent benches of 
equal or fewer numbers of judges and still rules the field. It is unfortunate that 
its existence has sometimes been in advertently lost sight of.  
C.R.P.No.383/2005 
 
-: 18 :-
20. 
The next important case is that of Asma Zafarul Hassan Vs. United Bank 
and another (PLJ 1981 SC 242.) which is an even earlier case.  In this case also 
an objection was raised to the execution by sale of the judgment debtor’s 
property. The following paras of the judgment are material and are reproduced 
below.   
“7. 
In regard to the objection that there was violation of rule 65 
Order XXI, C.P.C, the Court held though the mode of sale by 
public auction was prescribed yet in a fit case the Court could, in 
the exercise of its inherent jurisdiction, accept a private offer after 
due notice to the parties if it was reasonable in the absence of any 
“prohibitive legislation”. The High Court also dealt with the other 
objections relating to the manner and mode of the publication of 
the proclamation and rejected them on the short ground that the 
petitioner had failed to prove that the prescribed method had 
resulted in a loss to the petitioner; and further, that as he had failed 
to object to the mode of the publication of the proclamation he was 
debarred from raising it now.” 
 
 
The plea of the inadequacy of the sale price was also 
rejected on the premise that as the petitioner or her counsel had 
failed to object at the time the offer was accepted, it was not open 
now to make a grievance of it. 
 
11. 
The learned counsel vehemently urged that the property 
could not be sold otherwise than by auction. For this proposition, 
he placed reliance on rule 65, Order XXI, C.P.C. and rule 351 of 
the Chief Court Rules (Original Side). These provisions do 
prescribe the mode of disposal by public auction but neither of 
them expressly or by necessary implication prohibit any other 
mode of disposal. Therefore, if the Court had deviated from this 
mode of disposal to serve the ends of justice, no exception can be 
taken to it. In Narising Das V. Mangal Dnbey [(1883) 5 All, 163] 
Mahmood, J. observed:- 
“Courts are not to act upon the principle that every 
procedure is to be taken as prohibited unless it is expressly 
provided for by the Code but, on the converse principle that 
every procedure is to be understood as permissible till it is 
shown to be prohibited by the law. As a matter of general 
principle prohibition cannot be presumed.” 
 
C.R.P.No.383/2005 
 
-: 19 :-
Furthermore, insofar as the objections to the procedure adopted for the sale is 
concerned, in terms of which a private offer was accepted by the High Court, 
reliance was placed on the still earlier judgment of this court in Ghulam Abbas 
Vs. Zohra Bibi (PLD 1972 SC 337) in which it was held:  
 
“No doubt, this gives the judgment-debtor a valuable right, but 
there is no evidence at all to show that the judgment-debtor, in the 
present case, ever tendered any amount to the officer conducting 
the sale, or paid any amount into the Court which ordered the sale, 
or asked for the postponement of the sale for this purpose. This 
complaint of the violation of his right could have been lodged, if it 
was genuine, at the time of the auction but this was not done even 
when the appellant on the first postponement of the sale waived the 
issuance of a fresh proclamation. He must have been aware of its 
contents then. Before a violation of a right can be alleged it must 
be shown that the right was asserted and denied. To assert this 
right, at least, the amount which the judgment-debtor considered to 
be the correct amount should have been tendered to the officer 
conducting the sale. This was never done, nor is there any evidence 
on the record to show that the judgment-debtor was ever in a 
position to procure this amount. No violation of the right has, 
therefore, taken place, about which any legitimate complaint can 
be made at this stage. This is clearly an afterthought. 
 
The appellant is also not in a position to show that he has in 
any way been prejudiced by this mistake or that the mistake 
alleged prevented any prospective bidder from participating in the 
bidding.  
Indeed, it would appear that the view of the Courts has consistently 
been that the non-compliance with the provisions of the Code of 
Civil Procedure, with regard to the proclamation of sale, its 
publication and the conduct of the sale in execution, are only 
material irregularities but not illegalities which render the sale in 
disregard of those provisions a nullity. A sale cannot be set aside 
unless “direct evidence of substantial injury resulting from the 
irregularity has been given” as was observed in the case of 
Tassaduk Rasul Khan v. Ahmad Hussain (1) and the onus of 
C.R.P.No.383/2005 
 
-: 20 :-
proving this prejudice is on the party complaining thereof.” 
(Emphasis supplied)  
 
The judgment debtor’s objections were accordingly dismissed. 
21. 
On the question as to whether it is open to an executing court to switch 
over from one mode of execution under the banking law to another under the 
CPC is possible or not, this court held in the case of Mumtaz-ud-din Feroze vs. 
Sheikh Iftikhar Adil and others (PLD 2009 SC 207) as under in para 15 and 16 
of the judgment, the relevant part of which is reproduced below.  
“15. 
As to the contention that the Banking Court in execution of 
the decree once adhering to the procedure prescribed by Civil 
Procedure Code could not have switched over to any other mode, it 
may be pointed out here that since by virtue of section 18(2) of the 
Banking Companies (Recoveries of Loans, Advances, Credits and 
Finances). Act (XV of 1997) (hereinafter referred to as the Act XV 
of 1997), the Banking Court is at liberty to recover the amount 
covered by a decree, on the application of the decree holder, in 
accordance with the provisions of the Code of Civil Procedure, 
1908 or any other law or in such other manner as it may deem fit, 
therefore consideration and approval of offer made by the 
petitioner, by the Court, in our view, was neither illegal nor 
unjustified particularly when all efforts made previously, including 
those made by the decree-holder and even by the judgment-
debtors, had failed to procure a better offer than Rs. 85,000,000, 
hence approval of the offer made by the petitioner, which was 
more than eight crore over and above the highest offer received 
was just and proper.” 
 
It was further observed in paragraph 16 as follows: 
“16. 
In the wake of above, it follows that non-compliance with 
the provisions of C.P.C. with regard to the proclamation of sale, 
its publication and the conduct of sale in execution, are only 
material (sic) irregularities and cannot be termed or regarded as 
illegalities thereby rendering the sale nullity. Objection after 
completion of sale shall not, therefore, ordinarily be allowed 
C.R.P.No.383/2005 
 
-: 21 :-
except on very limited grounds like fraud, etc. otherwise no auction 
sale will ever be completed. In this view, we, in addition to the 
cases cited above, are fortified by the judgments in the cases 
reported as (i) Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar 
Khan and others PLD 1953 Lah. 147 and (ii) Nanhelal and another 
v. Umrao Sindh AIR 1931 PC 33. Further, a distinction has to be 
drawn between the decree-holder who came into purchase under 
his own decree and a bona fide purchaser who came in and got the 
sale in execution of a decree to which he was not a party. In case 
where third party is a bona fide auction purchaser, his interest in 
sale of auction has to be protected.” (Emphasis supplied) 
 
22. 
A striking case from the Indian jurisdiction is the judgment of the Indian 
Supreme Court in the case of Janak Raj Vs. Gurdial Singh (AIR 1967 SC 608). 
The facts of this case highlight the legal principle involved. Before the auction 
sale had been confirmed the decree in terms of which the sale was ordered was 
set aside in appeal on the merits. Therefore, it was contended, that there was 
nothing left to execute. The question therefore arose that since the sale had not 
been confirmed at that point of time, whether the auction purchaser was still 
entitled to the property. The following finding was delivered on this point: 
 
“There is no provision in the Code of Civil Procedure of 1908 
either under O. XXI or elsewhere which provides that the sale is 
not to be confirmed if it be found that the decree under which the 
sale was ordered has been reversed before the confirmation of sale. 
It does not seem ever to have been doubted that once the sale is 
confirmed the judgment-debtor is not entitled to get back the 
property even if he succeeds thereafter in having the decree against 
him reversed. The question is, whether the same result ought to 
follow when the reversal of the decree takes place before the 
confirmation of sale. 
 
(5) 
There does not seem to be any valid reason for making a 
distinction between the two cases. It is certainly hard on the 
C.R.P.No.383/2005 
 
-: 22 :-
defendant-judgment-debtor to have to lose his property on the 
basis of a sale held in execution of a decree which is not ultimately 
upheld. Once, however, it is held that he cannot complain after 
confirmation of sale, there seems to be no reason why he should be 
allowed to do so because the decree was reversed before such 
confirmation. The code of Civil Procedure of 1908 contains 
elaborate provisions which have to be followed in cases of sales of 
property in execution of a decree. It also lays down how and in 
what manner such sales may be set aside. Ordinarily, if no 
application for setting aside a sale is made under any of the 
provisions of Rs. 89 to 91 of O. XXI, or when any application 
under any of these rules is made and disallowed, the Court has no 
choice in the matter of confirming the sale and the sale must be 
made absolute. If it was the intention of the Legislature that the 
sale was not to be made absolute because the decree had ceased to 
exist, we should have expected a provision to that effect either in 
O. XXI or in Part II of the Code of Civil Procedure of 1908 which 
contains Ss. 36 to 74 (inclusive).” 
 
23. 
We now turn to the final aspect of the case. It has earlier been noticed 
that no grievance was made at any stage of the proceedings about the fact that 
no reserve price was mentioned in the auction notices. This objection was also 
not raised either before the trial court, the first appellate court or before this 
court in appeal.  Neither does it find any mention in the review petition or in 
the certificate appended thereto. The interesting question therefore arises as to 
whether it is at all open to us to examine this question.  The settled law is of 
course that the scope of a review petition is very narrow and limited and it 
hardly seems appropriate to consider a legal objection which has not been 
taken at any stage of the proceedings on an initiative of this Court on its own.  
This is especially true since the point has not even been argued in court and we 
have not had the benefit of submissions by the counsel for the Respondent 
either.  Nevertheless, since we are aware of certain judgments on the question 
C.R.P.No.383/2005 
 
-: 23 :-
of reserve price we think it would be not inappropriate to make certain 
observations in relation thereto for purposes of clarification of the law.  There 
are two recent judgments on this point delivered by this court.   
24. 
The case of Lanvin Traders, Karachi Vs. Presiding Officer, Banking 
Court No. 2, Karachi (2013 SCMR 1419) stresses importance of fixing the 
reserve price. We may note straightaway that there are certain important 
distinguishing features in this case. In the present case the question of non-
mention of the reserve price has not been raised at all at any stage of the 
proceedings including the arguments before us in the present review petition. 
However, this question was specifically raised and argued in the Lanvin 
Traders case. Secondly, note should also be taken that in the Lanvin Traders 
case the objection was not merely in relation to the non-mention of the reserve 
price   but, as stated in paragraph 10,  “getting  down to the brass tacks of the 
case, it will be seen that it was not a single lapse which flashed by without 
causing harm to any.  It was rather a series of ploys which appears to have been 
employed to harm one and benefit another.” Thirdly, it should also be noted 
that in paragraph 11 it was specifically recognized that “agreed that the 
expression “reserve price” does not find mention in the relevant rule but the 
words used and the rule pointedly hint thereto.”  Furthermore, it was held “we 
therefore are constrained to hold that the whole proceedings from inception to 
the end have not been held in accordance with law and thus cannot be blessed 
with any sanctity”.  (It should incidentally be noted in passing that this is a majority 
judgment with a dissenting judgment also and a review petition has been admitted for 
hearing against it which is pending before this court). Since this case is distinguishable 
it is not necessary to dwell further on it.  Insofar as the subsequent case of 
C.R.P.No.383/2005 
 
-: 24 :-
National Bank of Pakistan vs. Saf Textile Mills Ltd. (PLD 2014 SC 283) is 
concerned it simply places reliance thereon and primarily dealt with the 
question of the constitutionality of non-judicial sales of property. 
25. 
We are now in a position to revert to the observation made by us earlier 
as to the circumstances in the present case in which for a period of one and half 
years repeated attempts were made  to obtain offers by means of public auction 
for the sale of the properties in question without any success.  The sale 
proclamations, as noted earlier, were published in widely circulated 
newspapers.  The first three elicited no response whatsoever and the last one 
led to only one offer being made.  The question arises as to what could be the 
possible reason for this unhappy state of affairs.  Unfortunately the reason is all 
too clear.  There is a general impression in the market, which is not without 
foundation, that to purchase a property in a court auction is to purchase not 
property but litigation.  In the normal course purchasers are interested in 
concluding a transaction as soon as possible and thereafter to take over 
possession of the property and use it for whatever purposes they have in mind.  
The unfortunate facts in this case reveal that although the process started as far 
back as the year 2000 and 15 years have elapsed in the meanwhile a definitive 
resolution of the case has been delayed up till now. This delay provides 
vindication of the wide spread belief that prudent buyers should refrain from 
participating in court auctions of property.  This leads to two deeply 
unfortunate consequences.  On the one hand the decree holders suffer since the 
collateral which is being attempted to be sold is eventually sold at a price 
which may well be far below the market value in a private sale and thus the full 
decretal amount cannot be recovered.  It is not merely they, but even the 
C.R.P.No.383/2005 
 
-: 25 :-
judgment debtors, who suffer.  Obviously it is in their interest to obtain the 
highest possible price for their property.  If, however, the above market 
perception continues to prevail they also will be deprived of a fair value since 
very few people will be interested in purchasing their property.  This therefore, 
is a case not merely of one party’s legal rights suffering but of both parties 
suffering.  If the valuable lessons contained in the judgment of this Court in the 
Hudaybia case had been observed and followed by banking courts such a state 
of affairs could perhaps have been averted. The sanctity of judicial sales needs 
to be reaffirmed authoritatively and definitively in the public interest as well as 
in the interest of decree holders and judgment debtors.  This can only be done 
if judicial sales are only set aside if it is clearly established that there has been 
fraud. A mere irregularity, even if material, should not suffice unless it can be 
shown that material loss has been caused.  It is also important to note that 
where the irregularity consists of errors by the court, or by court officials such 
as the Nazir, no party should be made to suffer by reason thereof.  The maxim 
of law that no one should suffer because of an error by a court is well known 
and has been reiterated again and again. Thus if, for example, the judgment 
debtor was of the view that the insertion of reserve price would help him in 
getting a good offer for it he could and should have raised this objection before 
the executing court at the initial stage.  He did not do this either   in relation to 
the first sale proclamation, or the second one, or the third one, or the fourth 
one.  A legal right which inheres in a party should be asserted and ex post facto 
objections should not be entertained thereafter, especially when the law 
provides a machinery for raising objections as set out in Order 21, Rule 89 and 
Rule 90.  In fact if the judgment debtor had asked for setting a reserve price at 
C.R.P.No.383/2005 
 
-: 26 :-
the initial stage there is no reason to doubt the fact that the court could easily 
have ordered that.  The Bank had given its own valuation but the judgment 
debtor did not trouble to do so. 
26. 
At this point we can conveniently examine the concept of reserve price. 
What exactly does it means. This is a well known concept and we can, by way 
of example, refer to the following definition contained in Business 
Dictionary.com. 
“Reserve price; lowest fixed price at which an item is offered 
at an auction sale and (1) at which it will be sold if no higher 
price is bid, or (2) below which the seller is not obligated to 
accept the winning bid.” 
 
The reserve price is often, although not invariably, fixed in sales of property by 
the owners thereof. Its relevance and importance depends on the circumstances 
in which the sale is being held. For example, in cases of Government owned 
property which is being privatized a reserve price is often fixed but is 
deliberately not disclosed to the public at all. The fixation of the reserve price 
is intended to be an internal guide to the Government in taking a decision as to 
whether or not to carry out a sale of the property at the highest price bid. The 
reason it is not disclosed to the bidders is that this may actually cause a loss to 
the Government. This would be because bidders would assume that if the 
Government, on the basis of its internal evaluation of the property, had come to 
a conclusion as to the actual value of the property, they would be reluctant to 
offer amounts substantially higher. This then is the reason why fixation of a 
disclosed reserve price could cause a loss to the owner of the property. We now 
turn to Court auctions. In the case of property which is being privatized it is 
C.R.P.No.383/2005 
 
-: 27 :-
within the sole discretion of the owner, namely the Government, to decide 
whether it wishes to sell or not to sell and at what price. However in the case of 
Court auctions the judgment debtor has no such right. Indeed if it were left to 
him he would say that no sale should be carried out, or, he would indicate an 
exorbitantly high price, so as to ensure that no bid would be received and the 
property would remain in his possession indefinitely. In auction sales it is the 
Court which therefore has to decide. The court in taking the decision 
essentially strikes a balance in terms of which it is fair to both the decree 
holder and the judgment debtor. It however always bears in mind the fact that, 
after a decree has been passed, the decree holder has a crystallized legal right 
to get the property sold if the judgment debtor persists in not paying the 
decretal amount. A judgment debtor cannot plead that prices are abnormally 
low at present and if the sale is delayed for some months or years a higher price 
could be obtained. The court will simply ensure a fair and even playing field 
and then proceed to sell or dispose of property at the highest price someone is 
prepared to pay at the prevalent time and in those circumstances.  A judgment 
debtor cannot object to the same because when he fails to discharge his 
obligation to pay the decretal amount he must suffer the consequences. Insofar 
as potential bidders are concerned it is obvious that the Nazir’s valuation of the 
property is not likely to be decisive one way or the other. All bidders would 
unquestionably carry out their independent valuation of the property before 
making an investment. Thus the reserve price in the normal course has no 
special significance. However the position would be different in cases of 
manifest fraud. If, for example, an auctioneer is acting in collusion with 
someone and proceeds to dispose of the property at a nominal price without 
C.R.P.No.383/2005 
 
-: 28 :-
making the requisite publicity then most certainly the court would intervene to 
prevent such a fraud taking place. It is for this very reason that if a judgment 
debtor is apprehensive of foul play he should make a specific request in 
advance, or as soon as practicable thereafter, to have a reserve price fixed.  The 
Nazir always issues a notice before issuing a sale proclamation so the judgment 
debtor has an opportunity to object. It is primarily in his interest to decide 
whether fixation of a reserve price is in his interest or not.  He may for example 
feel that it is not advisable since lower bids may come as a result thereof.  He 
has to take a decision, one way or the other.   
27. 
It should be remembered that the reserve price is never set by means of a 
judicial determination since that would be clearly impracticable inasmuch as 
the court can only decide matters on the basis of evidence. The important point 
to bear in mind is that once the plaintiff’s rights have crystallized in a court 
decree the burden has to be on the judgment debtor since his duty is clearly to 
comply with the terms of the decree.  If he feels that he is being harmed by 
some ministerial order, which is not in accordance with law, it is his clear duty 
to assert the same before the court rather than waiting to raise it at the stage of 
appeal, or further appeal, or in review, or not at all (as in the present case) and 
expect the court to do it for him. If he wishes to avail a legal right he must 
assert it. He cannot be allowed to do nothing and then after the passage of 
many years in which third party interests have been created to rely on a 
technical objection to delay the course of justice. In this connection it would be 
pertinent to note that in the judgment under appeal this court has rightly relied 
on the following passage from an earlier judgment: 
C.R.P.No.383/2005 
 
-: 29 :-
“The maxim “actus curiae neminem gravabit” comes into play, 
with a view to obviate hardships and which may otherwise be the 
result of the errors of the Court itself. Thus where a non-
compliance with the mandatory provisions of a law occurs by 
complying with the direction of the Court, which is not in 
conformity with the law, the party complying therewith is not to be 
penalized. Indeed, the law becomes flexible to absorb such 
abnormalities and treat the infractions as harmless. Where the 
directions issued while administering the law have been followed 
but it is found that the authority itself had acted in deviation of the 
law in some particulars, the party acting in accordance with such 
directions is not held to be blameworthy.” 
 
28. 
The facts of the present case provide an excellent illustration for the 
applicability of the above principles. The judgment debtor had four 
opportunities to raise an objection about the non-mentioning of the reserve 
price at the time of issuance of the sale proclamations. He then failed to raise 
this objection before the trial court, the division bench of the High Court, and 
before this court either in appeal or in the review. Now it is clear that there is 
no conceivable way by which the auction purchaser can be blamed for the act 
of the court in not mentioning the reserve price. He was not even a party to the 
court proceedings at the time the auction proclamations were prepared and 
issued.  We are unable to see how it would further the ends of justice if we 
were to now non-suit the auction purchaser for the error of the court and the 
negligence of the judgment debtor. 
29. 
In the above circumstances, we are unable to conclude that the judgment 
debtor is entitled to any relief in the present case and the review must therefore 
fail. However we have noted that in the past case the judgment-debtor has 
perhaps been rather severely treated by the Bank. Although this is not the fault 
C.R.P.No.383/2005 
 
-: 30 :-
of the auction purchaser, taking into account the broader equities of the case 
from a humanitarian perspective, we feel that the ends of justice would be met 
if instead of the original price, in addition to the amount already deposited in 
court by the Auction Purchaser an additional amount of Rs.1,25,00,000/- (one 
crore and twenty five lacs) is also deposited by him. Such deposit should be made 
within 30 days with the office of the Nazir of Sindh High Court which amount 
can thereafter be withdrawn by the Judgment Debtor. This review petition is 
disposed off accordingly. 
 
 
 
 
 
JUDGE 
 
 
JUDGE 
 
 
JUDGE 
Announced in open Court 
on ____________ at ____________ 
Approved For Reporting 
Waqas Naseer/* 
C.R.P.No.383/2005 
 
-: 31 :-
 
SH. AZMAT SAEED, J.- This Civil Review Petition is 
filed against the judgment dated 27.5.2005 announced on  27.6.2005 
of this Court, whereby Civil Appeal No.670 of 2002 filed by 
Respondent No.1, Muhammad Ikhlaq Memon against the 
judgment dated 07.3.2002  passed by a learned Division Bench  of 
the High Court of Sindh was set aside and the Orders dated 
26.02.2001, 27.03.2001 and 09.04.2001 passed by the learned Single 
Judge were held to be valid.  
2. 
 
The brief facts necessary for adjudication of the lis at 
hand are that Respondent No.3 had apparently obtained a Finance 
Facility from Respondent No.2 United Bank Limited (UBL), which 
was secured by mortgaging of various properties of the 
predecessor-in-interest of the present Petitioners. Respondent No.2 
(UBL) filed a suit for recovery of the said amount, which was 
decreed by the Banking Tribunal vide Judgment and Decree dated 
31.8.1994. Thereafter, Respondent No.2 (UBL) initiated execution 
proceedings 
for 
recovery 
of 
the 
decretal 
amount 
of 
Rs.103,789,753.00 against the judgment debtors. The properties in 
dispute, which are situated at Karachi were directed to be put to 
auction through Nazir of the Court by inviting the sealed tenders, 
vide Order dated 08.10.1998 passed by a learned Single Judge of 
the High Court of Sindh. The sale proclamation was published in 
C.R.P.No.383/2005 
 
-: 32 :-
the local daily newspapers. After three unsuccessful attempts, a 
fourth proclamation was published and in response thereto, 
Respondent No.1 submitted a bid to the Nazir of the Court for a 
total amount of Rs.2,32,80,280/-. Subsequently, the matter was 
presented in Court, wherein Respondent No.1 enhanced his bid to 
Rs.2,41,00,000/-, which was accepted by the Court vide Order 
dated 26.02.2001 and Respondent No.1 was directed to deposit the 
balance amount within one month. Apparently, the balance 
consideration was deposited. The Petitioners challenged the said 
Order dated 26.02.2001 before the learned Division Bench of the 
High Court of Sindh through Special HCA No.94 of 2001, which 
was allowed vide Order dated 07.3.2002. Aggrieved, Respondent 
No.1 invoked the jurisdiction of this Court through Civil Appeal 
No.670 of 2002, which was allowed vide judgment under review 
dated 27.5.2005 announced on 27.6.2005, as a consequence 
whereof, the judgment dated 07.3.2002 passed by a learned 
Division Bench of the High Court of Sindh was set aside and the 
Order confirming the sale in favour of Respondent No.1 was held 
to be valid and was affirmed.  
3. 
 
We have heard the learned counsel for the parties and 
with their assistance examined the available record.  
C.R.P.No.383/2005 
 
-: 33 :-
4. 
 
It is contended by the learned counsel for the review 
Petitioners that the learned Executing Court initiated the 
proceedings for execution of the judgment and decree in terms of 
Order XXI of the Code of Civil Procedure, 1908 and, therefore was 
required by law to continue with such procedure till the 
culmination of the execution proceedings, however, the learned 
Executing Court made serious departures from the procedure as 
laid down in Order XXI of the CPC to the prejudice of the 
judgment-debtor. In the above context, the learned counsel urged 
that no public auction was held, only sealed bids were invited, the 
time for deposit of balance consideration allowed to Respondent 
No.1 was more than  the 15 days contemplated under Order XXI, 
Rule 85 CPC. It was further contended that even otherwise, the 
terms and conditions, as originally approved by the Court, were 
allowed to be violated and a period of one month was given to 
deposit the balance consideration and the amount in question, as 
per the record, was not even deposited within such period. The 
learned counsel next contended that the judgment under review is 
based on an assumption that the time for deposit of the balance 
consideration had in fact been extended, which assumption is 
contrary to the record. It is further contended that the judgment in 
question is based on another assumption that the balance 
C.R.P.No.383/2005 
 
-: 34 :-
consideration stood deposited with the Nazir of the Court, while in 
fact the said amount was withdrawn by Respondent No.1 after a 
few weeks of its deposit. It is added that a higher price had been 
offered by a third party, which was ignored by way of the 
judgment under review without ascertaining conclusively as to 
when such higher offer was made. The learned counsel also 
contended that even if the learned Executing Court could depart 
from the time honoured and settled procedure, as laid down in 
Order XXI CPC, it could not effect the court sale without fixation of 
a reserve price and the failure in this behalf vitiated the entire 
proceedings, which had been rightly set aside by the learned 
Division Bench of the High Court of Sindh, and this aspect of the 
matter has been completely ignored by way of the judgment under 
review. In support of his contentions, the learned counsel for the 
Petitioners has relied upon the judgment, reported as Muhammad  
Attique v. Jami Limited and others (2015 SCMR 148). 
5. 
 
The 
learned 
counsel 
for 
Respondent 
No.1 has 
vehemently controverted the contentions raised on behalf of the 
Petitioners. At the very outset, it is contended that the scope of 
review is limited to an obvious error evident on the face of the 
record and the jurisdiction in this behalf does not extend to 
rehearing the entire matter or to adjudicate upon the contentions 
C.R.P.No.383/2005 
 
-: 35 :-
not raised at the time of the hearing of the judgment sought to be 
reviewed.  
   
The learned counsel further contended that Section 18 of the 
Banking Companies (Recovery of Loans, Advances, Credits and 
Finances) Act, 1997, whereunder the execution proceedings were 
conducted, authorizes the Banking Court either to adopt  a process 
as contemplated by the Code of Civil Procedure or adopt any other 
mode or method for execution of the decree. In the instant case, 
from the very outset, the learned Executing Court had not adopted 
the procedure as laid down in the Code of Civil Procedure by 
inviting sealed tenders.  Furthermore, even if, the procedure as laid 
down in the Code of Civil Procedure was initially adopted, a 
subsequent departure there-from by the Banking Court is 
permissible under the law. It is added that Respondent No.1 
strictly adhered to the requirements as laid down by the learned 
Executing Court and upon acceptance of his offer and confirmation 
of sale in his favour, a vested right had accrued to Respondent 
No.1, which could not be prejudiced. With regard to withdrawal of 
the balance consideration, it was contended that upon an 
application filed by Respondent No.1, such withdrawal was 
permitted by the learned High Court and not only without 
prejudice to the rights of Respondent No.1 but also with the 
C.R.P.No.383/2005 
 
-: 36 :-
consent of the learned counsel for the decree-holder (UBL) and the 
present review Petitioners, as is evident from the Order dated 
31.5.2001, therefore, such withdrawal cannot be construed to be 
detrimental to the rights of Respondent No.1. It was further 
contended that neither any Objection Petition was ever filed by the 
Petitioners contesting the sale or offering to buy the property at a 
price higher than that offered by Respondent No.1 alongwith 5% 
thereof nor any attempt was made to satisfy the decree prior to the 
confirmation of the sale. In support of his contentions, the learned 
counsel for Respondent No.1 has relied upon the judgments, 
reported as Hudaybia Textile Mills Ltd and others v. Allied Bank 
of Pakistan Ltd and others (PLD 1987 SC 512), Mst. Asma Zafarul 
Hassan v. M/s United bank Ltd and another (PLJ 1981 SC  242) 
and Noor Muhammad and others v. Allah Ditta and others (PLD 
2009 SC 198). 
6. 
 
At the very outset, it may perhaps be appropriate to 
examine and ascertain the amplitude and the limitations for the 
exercise of the powers of the review vested in this Court. In the 
judgment reported as  Lt. Col Nawabzada Muhammad Amir Khan 
etc. v.  The Controller  of Estate Duty, Government of Pakistan, 
Karachi etc. (PLD 1962 SC 335),  learned A. R. Cornelius, CJ, as he then was 
observed as follows:-  
C.R.P.No.383/2005 
 
-: 37 :-
“….There must be a substantial or material effect to be 
produced upon the result of the case if, in the interests of 
"complete justice" the Supreme Court undertakes to 
exercise its extraordinary power of review of one of its 
own considered judgments. If there be found material 
irregularity, and yet there be no substantial injury 
consequent thereon, the exercise of the power of review to 
alter the judgment would not necessarily be required. The 
irregularity must be of such a nature as converts the 
process from being one in aid of justice to a process that 
brings about injustice….” 
 
  
In the above said reported judgment, Kaikaus, J, as he then 
was has also observed as under:- 
“….It is not because a conclusion is wrong but because 
something obvious has been overlooked, some important 
aspect of the matter has not been considered, that a 
review petition will lie. It is a remedy to be used only in 
exceptional circumstances.” 
 
  
This Court in the judgment reported as Abdul Ghaffar-
Abdul Rehman v. Asghar Ali (PLD 1998 SC 363), after 
examining the case law on the subject, observed as follows:- 
"17. From the above case-law, the following principles of 
law are deducible: 
 
….(iv) that simpliciter the factum that a 
material irregularity was committed would 
not 
be 
sufficient 
to 
review 
a 
judgment/order 
but 
if 
the 
material 
irregularity was of such a nature, as to 
convert the process from being one in aid of 
justice to a process of injustice, a review 
petition would lie; 
 
(v) that simpliciter the fact that the 
conclusion recorded in a judgment/order is 
wrong does not warrant review of the same 
but if the conclusion is wrong because 
something obvious has been overlooked by 
the Court or it has failed to consider some 
C.R.P.No.383/2005 
 
-: 38 :-
important aspect of the  matter, a review 
petition would lie; 
 
(vi) that if the error in the judgment/order is 
so manifest and is floating on the surface, 
which is so material that had the same been 
noticed prior to the rendering of the 
judgment the conclusion would have been 
different, in such a case a review petition 
would lie; 
 
(vii) that the power of review cannot be 
invoked as a routine matter to rehear a case 
which has already been decided nor change 
of a counsel would warrant sustaining of a 
review petition, but the same can be pressed 
into service where a glaring omission or 
patent mistake has crept in earlier by 
judicial fallibility…..” 
 
 
The aforesaid view was reiterated by this Court in the 
judgment reported as Federation of Pakistan through Secretary, 
Establishment Division, Government of Pakistan, Islamabad v. 
Muhammad Tariq Pirzada and others (1999 SCMR 2189). 
 
 
In the case reported as Managing Director, Sui 
Southern Gas Company Ltd., Karachi v. Ghulam Shabbir and 
others (PLD 2003 SC 724), it was observed as under:- 
“Accordingly it is held that due to non-
consideration of the documents referred to 
hereinabove, a case for the review of the 
judgment to the extent of petitioners' case has 
been made out. We are fortified in this behalf by 
the judgment in the case of Suba through Legal 
Heirs v. Fatima Bibi through Legal Heirs (1996 
SCMR 158), wherein it has been held that "review 
petition would also be competent if something 
which is obvious in the judgment had been 
overlooked and that if it would have been 
C.R.P.No.383/2005 
 
-: 39 :-
considered by the Court, the final result of the 
case would have been otherwise"…..” 
 
 
 
In the judgment reported as  Syed Wajihul Hassan 
Zaidi v. Government of the Punjab and others (PLD 2004 SC 
801), it was held as under:- 
“17….We are of the considered view that even if the view 
taken by this Court in the decision of the appeal be 
erroneous, it does not warrant revisiting by this Bench in 
the exercise of review jurisdiction, which can only be 
exercised when an error or mistake is manifestly shown to 
float on the face of record, which is patent and if allowed 
to remain intact would perpetuate illegality and gross 
injustice. Basic object behind the conferment of power of 
judicial review on superior Courts essentially is to foster 
justice and eliminate chances of perpetuating illegality…. 
 
18…Likewise, factum that a material irregularity was 
committed by the Court would not be adequate enough to 
warrant a review of the judgment unless the material 
irregularity be of a nature so as to convert the process of 
acting in aid of justice to a process of gross injustice. In 
such eventuality, a review petition would be competent 
…     Furthermore, principle of law is well recognized that 
this Court would not exercise the power of review as a 
routine matter to rehear a case already decided but the 
same can be pressed into service where a glaring omission 
on the face of record or patent error has crept in the 
judgment by judicial fallibility.” 
 
  
In the case reported as Muhammad Siddiqul Farooq v. 
The State (2010 SC MR  198), it was held as under:- 
“12…The observations in the case of Suba through Legal 
Heirs v. Fatima Bibi through Legal Heirs 1996 SCMR 158 
were repeated that review petition would be competent if 
"something which is obvious in the judgment had been 
overlooked and that if it would have been considered by 
the court the final result of the case would have been 
otherwise". The present case directly attracts the above 
settled principles of law on the exercise of review 
jurisdiction. While passing the judgment under review 
this Court appears to have overlooked the all important 
evidence of P.W.6, P.W.8 and P.W.9 and also the absence 
C.R.P.No.383/2005 
 
-: 40 :-
of prosecution evidence on the culpability of the 
petitioner in terms of offences of section 9(a)(iii) and (vi) 
of the National Accountability Bureau Ordinance, 1999. 
 
5. 
Since the scope of review power and jurisdiction 
has not been free of complexity, it has received attention 
of the Court time and again primarily for the reason that 
the indulgence by way of review is granted mainly owing 
to the natural desire to prevent irremediable injustice by a 
Court of last resort by some inadvertence or accident. 
Muhammad Amir Khan's case PLD 1962 SC 335 lays 
down the principles for the exercise of review power and 
jurisdiction wherein all the Honourable Judges seized of 
the matter contributed and rendered their separate 
opinions. Cornelius, C.J. observed at page 340 as follows:-
-- "There must be a substantial or material effect to be 
produced upon the result of the case if, in the interests of 
"complete justice" the Supreme Court undertakes to 
exercise its extraordinary power of review of one of its 
own considered judgments…The irregularity must be of 
such a nature as converts the process from being one in 
aid of justice to a process that brings about injustice … 
B.Z. Kaikaus, J. expressed his opinion at page 354 as 
follows:--- "While I would prefer not to accept those 
limitations as if they placed any technical obstruction in 
the exercise of the review jurisdiction of this Court I 
would accept that they embody the principles on which 
this Court would act in the exercise of such jurisdiction. It 
is not because a conclusion is wrong but because 
something obvious has been overlooked, some important 
aspect of the matter has not been considered, that a 
review petition will lie. It is a remedy to be used only in 
exceptional/circumstances." 
 
… However, if the Court has overlooked some material 
question of fact or of law which would have a bearing 
on the decision or there is otherwise some apparent 
mistake or error on the face of the record, then of 
course the power of review can be exercised. As far as 
error apparent on the face of the record is concerned, it 
should be so manifest, so clear as could not be 
permitted by any Court to remain on record. Such 
error may be an error of fact or of law but must be self-
evident and floating on surface. The orders based on 
erroneous assumption of material facts, or without 
adverting to a provision of law, or a departure from 
undisputed construction of law and Constitution, may, 
however, amount to error apparent on face of record. 
It must have also a material bearing on the fate of the 
case. These propositions were enunciated by this Court 
in the judgment reported as PLD 1979 SC 741, 1975 
SCMR 115 and PLD 1984 SC 67….. 
 
9. 
It is said and rightly so that to err is human. 
C.R.P.No.383/2005 
 
-: 41 :-
Possibilities of mistakes and errors creeping in the 
decision making may not be very often but cannot out 
rightly be ruled out on occasions, especially the courts 
becoming over conscious of heavy backlog of cases and 
long lists of daily causes fixed before them. Skipping over 
or escaping the notice of the court some material and 
important aspects is also not unusual. Once, therefore, 
such a mistake/error comes to the notice of the court 
resulting in injustice it should not be hesitant or reluctant 
to make necessary correction to undo the injustice caused 
thereby. The entire theme of the above referred ideas 
expounded by the learned jurists is the avoidance of 
injustice. If in a case it is caused by any act or omission of 
the court inadvertently, accidentally or otherwise there 
should be no hesitation to rectify and make necessary 
correction by undoing the same.” 
 
7. 
 
A perusal of the aforesaid reveals that it is now well 
settled that the power of review stems from the possibility of 
judicial fallibility and is exercised in exceptional circumstances in 
the aid of justice to avoid gross injustice and in view of the 
necessity to avoid perpetuating such illegality, which cannot be 
allowed to remain on the record. A review is not synonymous with 
an appeal and does not include rehearing of the matter in issue nor 
will be warranted merely because the conclusion drawn is wrong 
or erroneous but is limited to eventualities where something 
obvious has been overlooked or where there is a glaring omission 
or patent mistake of fact  or law, which is self-evident, manifest 
and floating on the surface, materially affecting the outcome of the 
adjudicatory  process. Where such material mistake or error has 
resulted in injustice or an illegality, the Court should not hesitate 
C.R.P.No.383/2005 
 
-: 42 :-
or be reluctant to make necessary corrections to undo the injury 
caused thereby.  
8. 
 
 A perusal of the record  reveals that the matter came up 
for hearing before the learned Executing Court on 08.10.1998, 
when it was observed that the UBL had filed a statement in terms 
of Order XXI, Rule 66 CPC. The properties, initially to be put to 
auction, were identified and the Nazir of the Court was directed to 
sell the same by inviting sealed tenders after publication of 
advertisement in the daily newspapers.  A sale notice was 
prepared by the Nazir of the Court and, after approval of the 
Court, published in the daily newspapers. In terms of the sale 
notice, sealed bids were invited and bidders were directed to 
submit Pay Orders/Demand Drafts of 10% of the price so offered. 
The other terms and conditions of the sale were also specified. The 
condition 3 read as follows: 
 
“3. 
The balance amount shall be deposited 
immediately on confirmation by the Hon’ble 
Court.”  
 
9. 
 
Three publications went in vain. In pursuance to the 
fourth advertisement issued on the same terms and conditions, a 
sealed bid was received from Respondent No.1, who was the only 
bidder. It is not disputed that the said offer was accompanied by a 
Pay Order/Demand Draft of 10% of the amount offered. 
C.R.P.No.383/2005 
 
-: 43 :-
Thereafter, the matter came up for hearing on 26.2.2001 when the 
sealed bid of Respondent No.1 was considered. Respondent No.1 
enhanced the amount originally offered, whereafter, the Court in 
unequivocal terms confirmed the sale in favour of Respondent 
No.1.  
  
According to the terms and conditions of the sale, 
Respondent 
No.1 
was 
required 
to 
deposit 
the 
balance 
consideration immediately upon confirmation by the Court. 
However, vide Order dated 26.2.2001 one month’s time was given 
to Respondent No.1 to deposit the balance consideration.  
10. 
 
It appears from the record that on 15th March, 2001, an 
application was filed by the Petitioners, which pertained to the 
vacant possession of the properties subject matter of the sale 
whereupon the following Order was passed on 27.3.2001:  
“Adjourned. In the meantime, the auction purchaser may 
take steps in terms of Rule 85 Order 21 CPC. Put up after 
31.3.01.” 
 
11. 
 
In the subsequent Order, it was noticed that the balance 
consideration has been paid. It is an admitted fact on the record 
and as also mentioned in the judgment under review that such 
payment was made on 30.3.2001.  
12. 
 
A careful  examination of the available record referred 
to above, reveals that it is difficult to hold conclusively that the 
C.R.P.No.383/2005 
 
-: 44 :-
learned Executing Court had initiated, commenced or pursued the 
execution proceedings by invoking the provisions of the Code of 
Civil Procedure, 1908. At the very outset, the sale was sought to be 
effected through the Nazir of the Court by inviting sealed tenders. 
The Certificate under Order XXI, Rule 66 CPC was filed by the 
decree-holder (UBL). It is not apparent from the available record 
whether such filing was pursuant to a specific Order passed by the 
learned Executing Court. Thus, the contention of the learned 
counsel for the Review Petitioners to the contrary, in this behalf 
cannot be accepted, therefore, the learned Executing Court  in view 
of Section 18 of the Act of 1997  may have been at liberty to adopt 
any procedure to effect the sale of the properties in question.  
13. 
 
It is evident from the available record that the terms and 
conditions for sale were advertised with the approval of the 
learned Executing Court and in accordance therewith, the balance 
consideration was required to be paid immediately upon 
confirmation of the sale by the learned Executing Court. The sale 
was confirmed vide Order dated 26.02.2001. However, by the same 
Order, Respondent No.1 was allowed one month’s time to deposit 
the balance consideration. A perusal of the Order dated 26.02.2001 
does not disclose any conscious adjudication by the Court, for 
granting this indulgence of extension of time beyond the period as 
C.R.P.No.383/2005 
 
-: 45 :-
contemplated by the terms and conditions of the sale. Be that as it 
may, the time allowed to Respondent No.1 to deposit the balance 
consideration was “within one month from today”. Admittedly, 
the said balance consideration was not deposited within one 
month but in fact was deposited on 30.3.2001. This aspect of the 
matter has been considered and dealt with in para 12 of the 
judgment under review, which is reproduced herein below: 
“12. 
The 
negotiated 
offer 
made 
by 
the 
appellant/auction-purchaser to purchase the properties in 
question was accepted by the Banking Court, by order 
dated 26.2.2001 with the direction to deposit the balance 
of consideration amount within a period of one month. 
The appellant moved C.M.A.No.619 of 2001 before the 
expiry of the period of one month for issuance of 
directions to the Nazir of the Court to obtain vacant 
possession of the properties. The photo-copies of pay 
orders for the balance amount were also attached 
therewith. The said application was taken up by the 
Banking Court on 27.3.2001 and the Court directed the 
appellant to take steps in terms of Order XXI Rule 85 
CPC. Therefore, he deposited the entire balance amount 
of the sale with the Nazir of the Court on 30.3.2001. On 
9.4.2001, the Banking Court had noted that the appellant 
had deposited the balance amount. Therefore, the Court 
directed the Nazir of the Court to take steps for 
confirmation of sale. The Banking Court, by order dated 
26.2.2001, had itself given a period of one month to the 
appellant to deposit the balance of purchase money which 
was extended by order dated 27.3.2001. He made the 
requisite payment to the Court on 30.3.2001. Therefore, he 
could not be penalized merely on the ground that he had 
failed to make such deposit within a period of 15 days as 
stipulated in Order XXI Rule 84 CPC. It was for the first 
time through order dated 27.3.2001 that the Banking 
Court, by making a reference to Order XXI Rule 85, had 
decided to follow the procedure as laid down by the 
CPC.” 
 
 
(emphasis is supplied) 
 
14. 
 
The entire judgment under review  in this behalf is 
based on the erroneous assumptions that the time had been 
C.R.P.No.383/2005 
 
-: 46 :-
extended by the learned Executing Court vide Order dated 
27.3.2001. The said Order has been reproduced hereinabove, which 
merely states that Respondent No.1 may take steps in terms of 
Order XXI, Rule 85 CPC, which reads as follows: 
“85. 
Time for payment in full of purchase-money—The full 
amount of purchase-money payable shall be paid by the 
purchaser into Court before the Court closes on the 
fifteenth day from the sale of the property: 
 
Provided that, in calculating the amount to be so 
paid into Court, the purchaser shall have the advantage of 
any set-off which he may be entitled under rule 72.” 
 
 
 
 
 
(emphasis is supplied) 
 
15. 
 
A bare perusal of the aforesaid provisions of the law 
reveals that the steps to be taken in terms thereof are to deposit the 
balance sale price within 15 days from the date of the sale of the 
property. In the instant case, sale was confirmed by the Court on or 
before 26th February, 2001. The only other steps to be taken or 
privilege advanced to the auction purchaser would be to take 
advantage of any set-off, if permitted, under Order XXI, Rule 72 
CPC. In the above circumstances, it is very difficult to accept that 
in fact the period of one month to deposit the balance 
consideration set forth in the Order dated 26.2.2001 had been 
extended. 
16. 
 
It is not the case of Respondent No.1 that a prayer for 
extension of time had been made. There is no clear and 
C.R.P.No.383/2005 
 
-: 47 :-
unequivocal Order passed to the effect that such time was 
extended. The judgment under review is based on an incorrect and 
erroneous assumption that the time for deposit of the balance 
consideration had been extended. This error is floating on the face 
of the record. The entire edifice of the judgment under review is 
based upon such incorrect assumption of the facts and law. The 
obvious failure of Respondent No.1 to deposit the balance 
consideration within time fixed would materially impact the final 
adjudication of the matter at hand especially since a general 
principle of law as also reflected by Order XXI, Rule 85 CPC, the 
failure to deposit the balance consideration by an auction 
purchaser may result in setting aside the sale.  
17. 
 
After deposit of the balance consideration, while the 
matter was pending in appeal, Respondent No.1 made an 
application before the learned Appellate Court/Division Bench of 
the High Court seeking withdrawal of 90% of the consideration as 
deposited. No doubt, such withdrawal was sought without 
prejudice and was allowed by the Court without prejudice to the 
rights of Respondent No.1 and prima facie with the consent of the 
decree-holder (UBL) and the learned counsel of the present 
Petitioners, however, it has been noticed with some interest that 
possibility of depositing the balance consideration in a profit 
C.R.P.No.383/2005 
 
-: 48 :-
bearing scheme was spurned by Respondent No.1 on the plea that 
such profit in his view was interest which he was not prepared to 
accept. However, it is also mentioned in the Order that in case 
Respondent No.1 succeeded, he would deposit the money 
withdrawn within one week. A perusal of the judgment under 
review also reveals that this Court acted upon an erroneous 
assumption that the balance consideration stood deposited and 
was available with the Nazir of the Court. This is obvious from the 
fact that in the judgment under review neither any direction was 
given for deposit of the balance consideration nor any timeframe 
was fixed in this behalf. It does not appear that the said amount 
was re-deposited by Respondent No.1 immediately or within one 
week from passing of the judgment under review.  
18. 
 
There is no cavil with the contentions of the learned 
counsel for Respondent No.1 that Section 18 of the Act of 1997, 
contemplates the Banking Court being permitted to adopt any 
procedure other than the one prescribed by the Code of Civil 
Procedure, for execution of the decree. It is a settled law that in sale 
of immovable properties under Order XXI CPC, the reserve price 
must be fixed and the absence thereof may vitiate the entire 
process.  
C.R.P.No.383/2005 
 
-: 49 :-
19. 
 
In this behalf, reference can be made from various 
judgments of this Court. In the judgment reported as M/s Lanvin 
Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi 
(2013 SCMR 1419), it was observed as follows: 
“11. 
Yes, the prices have gone to a dizzying height ever 
since the sale was confirmed in favour of the respondent 
but this will not deter the Court from undoing the sale 
when the proceedings leading thereto were marred by 
serious lapses causing serious prejudice to the decree 
holders as well as the judgment debtors whose amount, 
which is much greater than that of the auction purchaser, 
also lay in a static repose till date. … Agreed that the 
expression “reserve price” does not find mention in the 
relevant rule but the words used in the rule pointedly hint 
thereto. A sale, in its absence, is apt to give walkover to 
manoeuvrers to fix any price of their choice. A sale thus 
effected is no sale in the eye of law especially when the 
number of bidders is meager, which, indeed is close to 
nill. A superstructure of sale built on such a shaky 
infrastructure cannot sustain itself. Neither the buttress of 
limitation nor the ministerial nature of the rule can 
prevent it from a fall. …” 
 
 
 
 
(Emphasis is supplied) 
 
  
In the case reported as National Bank of Pakistan and 117 
others v. Saf Textile Mills Ltd and another (PLD 2014 SC 283), 
while considering the vires of Section 15 of the Financial 
Institutions (Recovery of Finances) Ordinance, 2001, pertaining to 
the sale without intervention of the Court, it was observed as 
follows: 
“40. 
As a supplement to the aforesaid, it may be noted 
that 
no 
doubt, 
some 
rudimentary 
procedure for 
conducting such sales is provided in subsection (4) of 
section 15 of the Ordinance of 2001 but yet again the time 
honoured and well entrenched principle of fixation of a 
“reserve price” is conspicuous by its absence. It is now 
well settled law that even where the sale is conducted by 
C.R.P.No.383/2005 
 
-: 50 :-
the Court a “reserve price” is essential and the absence 
thereof may be fatal….”  
 
20. 
 
The question that floats to the surface is whether while 
adopting a procedure other than as provided by the Code of Civil 
Procedure, 1908, the Banking Court could permit the sale of 
immovable properties without fixing a reserve price. This aspect of 
the matter has also escaped notice of this Court and has not been 
adjudicated upon. However, the available record reveals that a 
Certificate  of an approximate value of the property of the subject 
matter of the sale was provided by Respondent No.2 (UBL), to 
which no objection was raised by the either party. If such value is 
deemed to be equivalent to the reserve price then unfortunately the 
sale was confirmed at a price lower than the said price.   
21. 
 
The aforesaid gains further significance as it appears 
from the record that at some point of time, a higher price was  
offered by a third party. By way of the judgment under review, it 
has been held that the said offer was made after the sale was 
confirmed and the amount deposited by Respondent No.1.  A 
document in this behalf (the higher offer) is available on the record 
but is undated. It needs to be ascertained as to when such offer was 
in fact made and whether the same would be a sufficient ground 
C.R.P.No.383/2005 
 
-: 51 :-
for putting the property to re-auction as was ordered by the 
learned Appellate Court/Division Bench of the High Court. 
22.   
 In view of the facts and circumstances, detailed 
hereinabove, it is clear and obvious that the judgment under 
review is based upon incorrect and erroneous assumptions of facts 
and law, which are manifest and self-evident on the face of the 
record. Critical legal questions, which floated to the surface from 
the record and from the pleadings of the parties have been 
sidestepped and thus evaded adjudication. In order to do the 
complete justice and to avoid perpetuating an illegality, it is 
imperative that the judgment dated 27.5.2005  announced on 
27.6.2005 of this Court be recalled and Civil Appeal No.670 of 2002 
be revived to be decided afresh in accordance with the law.  
23. 
 
Consequently, this Civil Review Petition is allowed and 
the judgment dated 27.5.2005 announced on 27.6.2005 is recalled 
and Civil Appeal No.670 of 2002 shall be deemed to be pending 
and be decided afresh.  
 
 
 
 
 
 
Judge 
 
 
 
C.R.P.No.383/2005 
 
-: 52 :-
 
 
ORDER OF THE BENCH 
 
 
 
By majority of 2 to 1 (Sh. Azmat Saeed, J. dissenting), 
this Civil Review Petition is disposed of.  
 
Judge 
 
Judge 
 
Judge 
Announced in open Court 
on 5.1.2016 at Islamabad 
Approved for Reporting 
 
 
 
 
 
 
 
 
Judge