Messrs M.A. CHAUDHRY and 3 others vs NATIONAL BANK OF PAKISTAN, FAISALABAD through General Attorney

ORDER

MIAN HAMID FAROOQ, J.---Appellants, through the filing of the present appeal, have called in question order dated 31-3-2003, whereby the learned Judge, Banking Court dismissed the petition, filed by the appellants Nos.2 to 4 (judgment-debtors Nos.3 to 5), for setting aside the ex parte decree dated 13-6-2002.

2. Respondent's suit for recovery of Rs.61,78,526 was ex parte decreed, against Messrs M.A.

Chaudhary International and 4 others, by the learned Judge Banking Court, vide judgment and decree dated 13-6-2002.

Appellant No.1 and Tariq Ali Chaudhary filed the application for setting aside the ex parte decree, which was dismissed by the learned Judge Banking Court, vide order dated 29-7-2002. Thereafter appellants Nos.2 to 4 (judgment-debtors Nos.3 to 5), on 31-7-2002, instituted the petition for setting aside the ex parte decree dated 13-6-2002 against them, inter alia, pleading that the respondent- Bank has obtained the ex parte decree by concealment of facts and by providing incorrect addresses of the said judgment-debtors. This petition was resisted by the respondent-Bank, inter alia, pleading that the petition is barred by time and that the judgment-debtors Nos.1 and 2 earlier filed the identical application, which was dismissed by the Court, on 29-7-2002. It was further maintained that the respondent-Bank furnished the same addresses in the suit, which were provided by the judgment-debtors at the time of availing of loan facility. After hearing the learned counsel for the parties, the learned Judge Banking Court, dismissed the said application, vide impugned order dated 31-3-2003, which has prompted the appellants to file the instant appeal.

3. The learned counsel for the appellants has contended that the respondent-Bank obtained the ex parte decree by providing wrong addresses of the appellants, although they were duly informed about the change of their addresses. He has further submitted that their petition was decided without framing the issues and thus they have been condemned unheard. Conversely the learned counsel for the respondent-Bank has submitted that the appellant No.1 and Tariq Ali Chaudhary earlier filed the application for setting aside the same ex parte judgment and decree, which was dismissed by the learned Judge Banking Court, on 29-7-2002, thus the instant application on behalf of respondent No.1 is incompetent. He has added that the respondent-Bank furnished the same addresses in the plaint, which were provided by the judgment-debtors themselves and changes of addresses were not intimated by the appellants. He has further submitted that the application filed by the appellants Nos.2 to 4 was barred by time and therefore, rightly dismissed by the Banking Court.

4. Admittedly Messrs M.A. Chaudhary International and Tariq Ali Chaudhary (judgment-debtors Nos.1 and 2) earlier filed identical petition for setting aside the ex parte judgment and decree dated 13-6-2002, which was dismissed by the Banking Court on 29-7-2002. Ii is not discernible from the available record that the said order was assailed before this Court, hence the same has attained finality. After the dismissal of appellant N o. l's application on the same subject-matter, it is precluded from either again filing the similar application or instituting the present appeal. Furthermore the application for setting aside the ex parte judgment and decree, out of which the present appeal has arisen, was not filed on behalf of the appellant No.1, which was not party to the proceedings before the learned Banking Court, therefore, he is estopped under the law from filing the present appeal against order dated 31-3-2003. The learned counsel for the respondent-Bank is right in submitting that the appeal, by the appellant No.1, is incompetent. In view whereof, the appeal to the extent of appellant No.1 is hereby dismissed.

5. As regards the case of appellants Nos.2 to 4 (judgment-debtors Nos.3 to 5), admittedly they filed the application, on 31-7-2002, seeking setting aside of judgment and decree dated 13-6-2002, thus their application was barred by time, as according to section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, such an application could be filed within 21 days from the date of dismissal. Thus, apparently the said application was filed by the appellants Nos.2 to 4 out of time.

6. During the examination of the available record, we find that the appe)lants Nos.2 to 4, along with their aforenoted parent application, on the same date, filed another application under section 5 of the Limitation Act for the condonation of delay, which application was not decided by the learned Judge Banking Court earlier in the impugned order dated 31-3-2003 or through a separate order.

The said application has completely been blacked out from the proceedings, while the same was in fact filed by the appellants Nos.2 to 4, as is evident from the certified copy of the application, under section 5 of the Limitation Act, (Page 23 of the present file) which is supported by the affidavit of Muhammad Shahid Ali Chaudhary. It is settled law by now that if any miscellaneous application is filed by the parties, it is incumbent upon the Court to decide the said application, either way, through a specific order and then to decide the main case and failure to decide such an application would vitiate the main judgment if any case-law is needed, judgments reported as Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 M LD 150 can be referred.

7. In the above perspective, we have examined the impugned order and the available record and find that the learned Judge Banking Court has neither adverted to the said application nor decided the same, therefore, the said application is deemed to be pending and thus we are inclined to set aside the impugned order.

8. Upshot of the above discussion is that the present appeal stands dismissed to the extent of the appellant No.1, however, the same is allowed qua appellants Nos.2 to 4 and the impugned order, against the said appellants, is set aside with no order as to costs. Resultantly the applications for setting aside the ex parte decree dated 13-6-2002 and condonation of delay, both filed by the appellants Nos. 2 to 4 (judgment-debtors Nos.3 to 5) shall be deemed to be pending before the learned Banking Court, who shall decide both the applications, after hearing the parties and of course in accordance with law within a period of three months from today.

Appeal is partly allowed.