NAJABAT Versus A.D.B.P. HEAD OFFICE

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.