1991 S C M R 51

Present: Shafiur Rahman, Zaffar Hussain Mirza and Ajmal Mian, JJ

HUDAYBIA TEXTILE MILLS Ltd. and others--Petitioners

versus

ALLIED BANK OF PAKISTAN LTD. and others--Respondents

Civil Review Petitions Nos. 69-R of 1987 and 8-R of 1988, decided on 18th April, 1990.

(On review from the judgments of this Court dated 12-8-19h7, in CA. 90 of 1987).

(a) Words and phrases---

---- Words "auction"---Meaning and scope---Words "auction" means public sale in which articles
are sold to the highest bidder as distinguished from sale by private negotiation.

Concise Oxford Dictionary and Black's Law Dictionary, 5th Edn. rel.

(b) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)---

----S.8(3)---Civil Procedure Code (V of 1908), OXXI, R.92---Supreme Court Rules, 1980,

OXXVI, R.1---Review of Supreme Court judgment---Question raised was that as the power of
Special Court constituted under Banking Companies (Recovery of Loans) Ordinance, 1979, in
regard to execution of decrees passed by it is provided in S.8(3) of the. Ordinance itself,
procedure provided for in Civil Procedure Code, 1908, was displaced as held by Supreme Court
in the judgment under review; it was further contended that reservation of power by the Court of
Confirmation of "auction" as distinguished from confirmation of "sale", both of which were
within the amplitude of the power possessed by Court under S.8(3) of Ordinance XIX of 1979,
were ignored and not given effect to, in holding that sale was to be governed throughout by
provisions of Civil Procedure Code, 1908, overriding the express reservations---Judgment under
review had exhaustively dealt with the argument that had been advanced in support of review
petition---Assumption which lay at the foundation of the contention now raised, that the case was
decided on the basis of provisions of Civil Procedure Code, 1908, was not
well-founded---Question of confirmation of sale had been examined in the judgment under
review in a much wider perspective including the general principle attracted in case of judicial
sales--Review petitions being devoid of merit were dismissed in circumstances.

S.M. Zafar, Senior Advocate Supreme Court for Petitioner (in Civil Review Petition No. 69-R of
1987).

Ch. Khalil-ur-Rehman Advocate Supreme Court for Petitioners (in Civil Review Petition No.
8-R of 1988).
Shahid Hussain, Advocate Supreme Court for Respondents.

Rana Abidul Rahim, Advocates Supreme Court and Ch. Ghulam Dastgir, Advocate-on-Record
for Respondent No.7.

Date of hearing: 3rd April, 1990.

ORDER

ZAFFAR HUSSAIN MIRZA, J.-These are two petitions seeking review of this Court's
judgment, dated 12th August, 1987, in CA. 90 of 1987. As common arguments were addressed at
the Bar, these petitions are being disposed of by this common judgment.

The point on which these review petitions were admitted was that as the power of the Special
Court in regard to execution of decrees passed by it is provided in section 8(3) of the Banking
Companies (Recovery of Loans) Ordinance, 1979, the procedure provided for in the Code of
Civil Procedure, was displaced as held by this Court in the judgment under review. In the
premises, it was contended that the reservation of the power by the Court of confirmation of
"auction" as distinguished from confirmation of "sale" vide order, dated 14th September, 1985,
and condition No.9 of the terms and conditions of the auction, both of which were within the
amplitude of the power possessed by the Court under section 8(3) of the Ordinance were ignored
or not given due effect to, in holding that the sale was to be governed throughout by the
provisions of CPC overriding these express reservations.

We have heard Mr. S.M. Zafar, Advocate, on behalf of the petitioners and M/s. Shahid Hussain
and Rana Abdul Rahim, Advocates for the respondents.

Learned counsel for the petitioners has referred to the condition No.9 of the terms and conditions
of auction which was:

"The auction shall be subject to confirmation by this Court:"

He then invited our attention to the order of the executing Court, dated 14th September, 1985, on
the stay application submitted by the judgment-debtor which reads as follows:--

"Since there is no concluded compromise the auction may go on. However, auction may not be
confirmed in the meanwhile. Notice to the Bank for a date in the first week of October, 1985. Let
this order be telegraphically conveyed to the auctioneer at the expense of the petitioners today."

The argument of the learned counsel was that the aforesaid condition No.9 and the direction that
the auction may not be confirmed for the time being were deviations from the ordinary procedure
provided for in the C.P.C. for conduct of auction sale in execution of a decree. He highlighted
the difference between the "confirmation of auction" as contemplated in condition No.9 and the
"confirmation of sale" as contemplated by Order XXI, rule 92 C.P.C. The argument was that by
the special mode prescribed by the Court itself in the exercise of power under section 8(3), the
auction was first to be confirmed by the Court and until then no third party interest was to
intervene even if the bid of the highest bidder was accepted by the auctioneer. The confirmation
of a sale was to take effect after the confirmation of auction. Since the Court had not yet
confirmed the auction, the parties to the execution application were free to settle their dispute
notwithstanding the auction having taken place.

As argued by the learned counsel for the respondents, there is no distinction between the words
"auction" and "sale" in the context of mode of execution. Indeed auction is one of the modes of
sale of property and the two terms are; in the context of execution proceedings interchangeable.

Learned counsel for the respondents also referred to the dictionary meaning of the word
"auction". According to the Concise Oxford Dictionary the word "auction" means "public sale in
which articles are sold to maker of highest bid". In Black's Law Dictionary (5th Edition), the
meaning of the word has been described as under:

"An auction is a public sale of property to the highest bidder by one licensed and authorised for
that purpose…………."

It is, therefore, clear that auction only means a public sale as distinguished from sale by private
negotiation.

I am, therefore, unable to see the distinction sought to be drawn by the learned counsel from the
use of the word "auction". What was meant was that the sale would be subject to confirmation by
the Court as is done in regard to sale under the C.P.C. As to the order, dated 14th September,
1985, it may be pointed out that on the face of the order the Court was not inclined to stay the
sale by public auction of the property attached which is clear from the first sentence of the order.
The confirmation of the sale or auction was already reserved by the Court and therefore a
direction given in the order, dated 14th September, 1985, did not take the matter on a higher
footing nor was the information conveyed to the auctioneer to that effect, was of any material
consequence. By the terms and conditions of the auction the bidders would have been otherwise
aware that the auction sale was subject to confirmation. Both the facts relied upon by the learned
counsel, therefore, do not alter the essential decision in the judgment under review. In fact the
judgment has exhaustively dealt with the argument that has now been advanced in support of the
review petitions. Reference may be made in this connection to paragraphs 10 and 12 of the
judgment. It may be noted that the assumption which lies at the foundation of the contention now
raised, that the case was decided on the basis of provisions of the C.P.C., is not wellfounded. The
question of confirmation of sale has been examined in the judgment in a much wider perspective
including the general principles attracted in case of judicial sales.

In the light of the aforesaid, I am of the view that these review petitions have no merit and would
accordingly dismiss the same with costs.

AA./H-109/S Review application dismissed.