Law:

Section:

(i) Civil Procedure Code, 1908 (V of 1908)-- ----O. XXI, R. 66(2)--Auction of property--No mention of any encumbrance in proclamation and warrant of auction--Sale of such property--Effect--Neither the decree holder nor auction purchaser were to be taxed for the purpose of such encumbrance and its amount. [P. 103] A (ii) Auction Money-- ----Omission on the part of Court--Effects--Parties not affected--Principle--Omissions by the Court cannot prejudice any of the parties and appellant cannot be declared liable to pay the arrears out of the amount of auction money. Judgment This first appeal Banking is against the order of Banking Court, Abbottabad dated 11.12.2004 where the observations regarding recovery of charges/claims of arrears have been given to the effect that the Respondent No. 1 (Small Industrial Estate Manshera through Deputy Director Mansehra) may demand their claims of arrears from the decree-holder Bank/IDBP/the appellant, otherwise the order was in favour of the appellant and Respondent No. 2. 2. We heard the arguments of the learned counsel for the appellant as well as of Respondent No. 1 Respondent No. 2 was not available as being not interested in the result of this F.A.B. The learned counsel for the appellant contended that there was nothing in the auction order to the effect that the encumbrance/claims of Respondent No. 1 from the Judgment-Debtor would be chargeable against the auction money of the disputed property, and no fact to this effect was, even, mentioned in the order in the light of Order XXI Rule 66 of C.P.C. But, the learned Executing Court, took it otherwise and held that as it was not mentioned in the said order that the arrears would not be recoverable from the auction sale proceeds, therefore, the impugned order, to the effect that the Respondent No. 1 may demand the said arrears from the appellant, was incorrect. 3. The learned counsel for Respondent No. 1 argued that the arrears were related to the property in question and were, recoverable against the said property. When asked whether any oral or documentary evidence was produced by the Respondent No. 1 before the Executing Court to show that any arrears were outstanding to…

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