Full Judgment Text & Judicial Ruling

2006 C L D 882

2006 C L D 882

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

Agha ABBAS HAIDER KHAN---Appellant

Versus

ZARAI TARAQIATI BANK LIMITED through Branch Manager---Respondent

Regular First Appeal No. 470 of 2005, heard on 10th April, 2006.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S.12---Civil Procedure Code (V of 1908), S.12 (2)---Limitation Act (IX of 1908), S.5--:Ex parte decree---Miscellaneous application, non-deciding of---Defendant filed application under S.12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and S.12 (2) C.P.C., for setting aside ex parte decree--Along with such application an application under S.5 of Limitation Act, 1908, was also filed for condonation of delay---Main application was dismissed primarily on the ground that defendant's application for setting aside ex parte decree was hopelessly barred by time---Banking Court while deciding defendant's application under S.12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and S.12 (2) C.P.C. completely ignored the pendency of defendant's another application under S.5 of Limitation Act, 1908---Effect---Order passed by Banking Court suffered from misreading of record of the case and the Court did not notice pendency of defendant's application under S.5 of Limitation Act, 1908---If any miscellaneous application was filed by parties then it was the duty of the Court to fast decide that application either way, through a specific order and then to decide the main case---Banking Court committed clear illegality, when it failed to decide defendant's application for condonation of delay---Banking Court without deciding defendant's application under S.5 of Limitation Act, 1908, had dismissed the principal application, therefore, the order could not be allowed to remain in field---Application of defendant for setting aside the ex parte decree was deemed to be pending and the order passed by Banking Court was set aside---Appeal was allowed accordingly.

Messrs Mahmood Brothers through Mahmood Ahmed and another v. National Bank of Pakistan through Manager and another 2004 CLD 771 ref.

Messrs M.A. Chaudhary and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney 2005 CLD 875 fol.

Mian Nisar Ahmad for Appellant.

Iftikhar Ahmad Chaudhary for Respondent.

Date of hearing: 10th April, 2006.

JUDGMENT

MIAN HAMID FAROOQ, J.---Appellant/judgment-debtor, through the present appeal, has called in question order, dated 6-9-2005, whereby the learned Judge, Banking Court dismissed his application for setting aside the ex parte judgment and decree, dated 25-2-1997, through which the learned Banking Court passed the decree for the recovery of Rs.12,16,232 with costs against the appellant.

2. Briefly stated facts of the case are that the respondent-Bank filed the suit for recovery of Rs.12,16,232, against the appellant, before the then Banking Tribunal (since defunct), which issued show-cause notice to him through all the modes of service, provided under the Banking Tribunals Ordinance, 1984 (since repealed). With the enforcement of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the suit was transferred to the newly-constituted Banking Courts under the said Act. The learned Banking Court after finding that the appellant has been served, the notices have been published in two daily Newspapers i.e. "Masawat" and "The Nation" and the appellant did not file the reply to the show-cause notice within the stipulated period, proceeded to pass the ex parte decree, for the recovery of Rs. 12,16,232, as prayed for in the appeal with costs, against the appellant, vide judgment and decree, dated 25-2-1997. It appears before the record that pursuant to the said decree, the decree-holder filed the execution petition, wherein certain unsuccessful attempts for the sale of mortgaged property were made and ultimately the property was purchased by the decree-holder itself. The appellant, on 5-9-2005, filed the application, under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 12(2), C.P.C. seeking setting aside of ex parte decree dated 25-2-1997 together with an application under section 5 of the Limitation Act, however, the learned Banking Court dismissed the earlier application vide impugned order, dated 6-9-2005, hence the present appeal.

3. Learned counsel for the appellant contends that the appellant was not personally served in the suit and after the transfer of the suit from the Defunct Banking Tribunal to the Banking Court, no fresh notices were issued to the appellant. He has relied upon Messrs Mahmood Brothers through Mahmood Ahmed and another v. National Bank of Pakistan through Manager and another 2004 CLD 771. Conversely, the learned counsel for the respondent has supported the impugned order.

4. We have heard the learned counsel and examined the summoned record. We find from the record that the appellant along with his parent application, for setting aside ex parte judgment and decree, dated 25-2-1997, also filed an application under section 5 of the Limitation Act for condonation of delay (page 277 of the record), which was supported by the affidavit of the appellant (page 279 of the record), however, the application for condonation of delay was not decided by the learned Judge Banking Court either in the impugned order or through a separate order. The main application was dismissed primarily on the ground that appellant's application for setting aside of ex parte judgment is hopelessly barred by time. The learned Banking Court, while deciding appellant's application under section 12 of Ordinance, 2001 and section 12(2), C.P.C., has completely ignored the pendency of appellant's another application under section 5 of the Limitation Act. Thus it is evident that the impugned order suffers from misreading of the record of the case, inasmuch as the learned Judge Banking Court did not notice the pendency of appellant's application under section 5 of the Limitation Act. It is settled law by now that if any miscellaneous application is filed by the parties then it is the duty of the Court to firstly decide the said application, either way, through a specific order and then to decide the main case. Reference can be made to the case reported as Messrs M.A. Chaudhary and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney 2005 CLD 875. The learned Judge, Banking Court has committed clear illegality, when it failed to decide appellant's application for condonation of delay.

5. In the above perspective and relying upon the case of M.A. Chaudhary, ibid, we are of the view that as the learned Banking Court, without deciding appellant's application under section 5 of the Limitation Act, has dismissed the principal application, therefore, the impugned order cannot be allowed to remain in field. The said application is deemed to be pending and thus we are persuaded to set aside the impugned order.

6. In view of the above, the present appeal is allowed and the impugned order is set aside with no order as to costs. Resultantly, the applications for setting aside ex parte decree, dated 25-2-1997 and for condonation of delay, both filed by the appellant, shall be deemed to be pending before the learned Judge, Banking Court, who shall decide said applications, after hearing the parties and of course in accordance with law within a period of three months from today.

7. Parties are directed to appear before the Banking Court on 28-4-2006. Office shall immediately transmit the record to the concerned Banking Court.

M.H./A-81/L?????????????????????????????????????????????????????????????????????????????????????? Case remanded.

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