This constitutional petition was filed against an order passed by a Single Judge of the High Court exercising banking jurisdiction. The impugned order, while deciding an application for leave to defend, struck off the names of respondents Nos. 5 and 6 from the list of defendants. The core legal question was whether a constitutional petition is maintainable against an interlocutory order of a Banking Court when an appeal is expressly barred by statute. The High Court held that under Section 22(6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, no appeal, review, or revision lies against an order accepting or rejecting leave to defend or any interlocutory order that does not dispose of the entire case. The Court ruled that entertaining a constitutional petition in such circumstances would circumvent and frustrate the law. Furthermore, the Court established that an order passed by a Judge of the High Court cannot be challenged via Article 199, as a Judge does not fall within the definition of a 'person' under Article 199(5) of the Constitution.
1. ' GULZAR AHMED, J.---We have heard learned counsel for the parties. This petition has been filed against the order dated 27-5-2009 passed by learned Single Judge of this Court acting under the banking jurisdiction by which while deciding application for leave to defend the suit of respondents Nos.5 and 6 it has struck off the name of such respondents from the list of the defendants.
2. ' Learned counsel for the petitioners was asked to show as to how this petition is maintainable.
3. Counsel for the petitioners has simply relied upon subsection (6) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and admitted that the case of petitioners does not come within exception as provided in section 15(11) and section 19(7) of the Ordinance.
4. ' Section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001 is as follows:--
22. Appeal.---(1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.
(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant: ' Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the decree-holder has been given an opportunity of being heard and unless the appellant deposits in cash with the High Court an amount equivalent to the decretal amount inclusive of costs, or in the case of an appeal other than an appeal against an interim decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decretal amount only, the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly.
(4) An appeal under subsection (1) shall be heard by a bench of not less than two Judges of the High Court and, in ease the appeal is admitted, it shall be decided within 90 days from the date of admission.
(5) An appeal may be preferred under this section from a decree passed ex parte.
(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19.
(7) Any order of stay of execution of a decree passed under subsection (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder ' may enforce the security furnished by the judgment-debtor.
5. The reading of above provision shows that it provides to an aggrieved person remedy of appeal against the judgment, decree, sentence or final order passed- by the Banking Court but does not provide appeal, review or revision against an order accepting or rejecting the application for leave to defend or any interlocutory order of Banking Court, which does not dispose of the entire case before the Banking Court. In the present case, the Banking Court has decided the application for leave to defend the suit of respondents Nos.5 and 6 and in doing so has struck off the names of these respondents from the list of defendants. Against such order the appeal is expressly barred by law and thus there is no warrant for entertaining a Constitutional Petition as it will not only amount to circumvention the law but will also frustrates the same. Yet again, the impugned order is passed by a Judge of this Court which is not a person in terms of Article 199(5) of the Constitution, for this reason also Constitutional Petition will not be maintainable. The petition, being not maintainable, is therefore dismissed. Listed applications are also disposed of.