Full Judgment Text & Judicial Ruling

2002 C L D 1695

2002 C L D 1695

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

NAJABAT‑‑‑Appellant

Versus

A.D.B.P. HEAD OFFICE through Branch Manager‑‑‑Respondent

First Appeal from Order No. 160 of 2002, heard on 13th June, 2002.

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

‑‑‑‑Ss. 12, 9(5), 10 & 22‑‑‑Civil Procedure Code (V of 1908), O. V, R.15‑‑‑Ex parte decree, setting aside of‑‑‑Appellant's plea was that he had not been served‑‑‑Banking Court dismissed application for setting aside ex parte decree‑‑ Contention of respondent‑Bank was that appellant had been duly served through a person, who statedly was his nephew‑‑‑Appellant's contention was that said person was not his nephew; and even if said person had been the son of appellant's real brother, same would not make him a member of his family for purposes of O.V, R.15, C.P.C.‑‑ Validity‑‑‑Appellant's contentions were well‑founded‑‑ Application seeking setting aside of ex parte judgment and decree had wrongly been dismissed‑‑‑High Court accepted the application for said reasons and allowed appellant to file within ten days petition for leave to appear and defend the suit, which would be decided by Banking Court on merits‑‑‑Appeal was disposed of accordingly.

Nazir A. Javed for Appellant.

Syed Haider Ali Shah and Farrukh Mehmood Sulehria for Respondent.

Date of hearing: 13th June, 2002.

JUDGMENT

JAWWAD S. KHAWAJA, J ‑‑This appeal was admitted to regular hearing for the reasons set out in our admitting order. The relevant part of the admitting order is reproduced as under:‑‑

"Learned counsel states that the appellant was not served before the impugned ex parte decree dated 17‑11‑2001 was passed against him by the learned Banking Court. An application was moved by the appellant seeking setting aside of the ex parte decree. In the said application the appellant clearly stated that he has not been served. The said application has been dismissed by means of the impugned order dated 23‑4‑2002."

2. Before us, learned counsel for the respondent‑Bank has stated that the appellant‑defendant was duly served through one Muhammad Azam who statedly is a nephew of the appellant. Learned counsel for the appellant states that although Muhammad Azam is a member of the extended family and, therefore, in general parlance could be referred to as he in fact is not a nephew of the appellant. It is further contended by learned counsel for the appellant that even if Muhammad Azam had been the son of appellant's real brother it would not make him a member of his family for the purpose of rule 15 of Order V, C.P.C.

3. The aforesaid contentions are well‑founded. As a result, we find that the application moved by the appellant seeking setting aside of the ex parte judgment and decree dated 17‑11‑2001 was wrongly dismissed. We allow the said application for the above reasons. The appellant shall be entitled to file a petition seeking leave to appear and defend within ten days from today. Within a further ten days the respondent‑Bank may submit its reply to the said application. The learned Banking Court shall within 30 days thereafter decide the application on merits.

This appeal is disposed of in the above terms.

S.A.K./N‑198/L Application accepted.

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