MUNIR AHMAD Versus JUDGE BANKING COURT
ORDER
Petitioner Munir Ahmad, who is judgment‑debtor No.5 in an execution petition titled Habib Bank Limited v. Malik Abdul Rauf pending before the Judge, Banking Court No. II, Lahore, has through the institution of the present Constitutional petition, assailed order dated 17‑10‑1996, whereby Judge, Banking Court, dismissed an application filed by the petitioner seeking restoration of an application purportedly filed by him under section 12(2), C.P.C.
2. Brief facts leading to the filing of the present writ petition are that pursuant to passing an ex parte decree for Rs. 2,06,456 on 4‑1‑1997, the respondent‑Bank initiated execution proceedings, wherein the petitioner filed an application under section 12(2), C.P.C. on 3‑1‑1998, for setting aside ex parte decree, which was fixed for addressing arguments on 28‑9‑1998 alongwith the execution petition, but the same were adjourned to 2‑11‑1998. The petition further narrates that when the petitioner came to know that the property is scheduled to be sold through auction on 31‑10‑1998, inspection of the file revealed that the application for setting aside ex‑parte decree had already been dismissed for non‑prosecution on 29‑9‑1998 and thereupon, the petitioner filed an application for the restoration of the said application praying for re‑calling of the order dated 29‑9‑1998, but the same was dismissed in limine vide impugned order dated 17‑10‑1996.
3. In support of the petition, the learned counsel has contended that an application filed under section 12(2), C.P.C. was dismissed vide order dated 29‑9‑1998 without providing an opportunity of hearing to the petitioner. He further argued that according to the cause list, the case of the petitioner was listed at Sr.No.60 and was shown as adjourned to 2‑11‑1998. The grievance of the petitioner is that as the case was adjourned to 2‑11‑1998, therefore, the same could not have been dismissed for non‑prosecution on 29‑9‑1998. On the other hand, the learned counsel appearing on behalf of the Bank has contended that the petitioner has not come to this Court with clean hands and has deliberately suppressed certain material facts. In support of this, while placing on record certified copies of order‑sheet and uncertified copy of an application under section 12(2), C.P.C. filed on 3‑1‑1998, it has been contended by the learned counsel for the respondent that in fact the application under section 12(2), C.P.C., which was dismissed for non‑prosecution on 29‑9‑1998, was not filed by the petitioner and the same was filed on behalf of defendants Nos.3, 6 and 7, therefore, the petitioner being the judgment‑debtor No.5, has no locus standi either to file an application for the restoration of petition, under section 12(2), C.P.C., filed by other defendants or to file the present writ petition challenging the order of the dismissal of restoration application.
4. With the assistance of the learned counsel for the parties, I have perused the order‑sheet of the Banking Court, which has been placed on record by the learned counsel for respondent No.2. It is clearly discernible from the bare reading of the order‑sheet that the petitioner, who is judgment‑debtor No.5, appeared in person on 19‑5‑1997 and offered to pay the decretal amount in instalments. Similarly on 18‑9‑1997, the petitioner Munir Ahmad, appeared before the learned Banking Court and accepted the decree as it is, withdrew his application dated 19‑5‑1997 and sought permission to pay the principal amount in instalments. The petitioner again appeared before the Judge, Banking Court on 5‑12‑1997 and stated that as the portion of the decretal amount has been paid, therefore, the execution proceedings may be stayed. In this background, it is abundantly clear that the petitioner, who was from the very inception in the knowledge of the pendency of the suit as well as the execution application, cannot take the plea that he acquired knowledge about the execution proceedings when the property was scheduled to be auctioned.
5. From the above narration, it is abundantly clear that the petitioner was in the knowledge of all the proceedings in the suit as well as in the execution application and was simply delaying the matter on one pretext or the other. He accepted the decree, withdrew his first application and sought permission from the Banking Court, to pay the principal amount. Meaning thereby, that he had consented to the said decree, therefore, after making the said statement coupled with statement made on 5‑12‑1997, the petitioner had no locus standi either to file an application under section 12(2), C.P.C. or any other application challenging the decree.
6. So far as the next contention of the learned counsel for respondent No.2 is concerned, I have seen the uncertified copy of application under section 12(2), C.P.C. which was placed on record by the learned counsel for the respondent. It is clearly mentioned in the heading of the application that the same has been filed on behalf of respondents Nos.3, 6 and 7 and not by the petitioner. If the said application was dismissed in default for any reasons, whatsoever, the petitioner should not have been felt aggrieved, because it was not his application which was dismissed and as such, he has no locus standi to file an application for the restoration of an application filed by the other defendants/judgment‑debtors. The petitioner failed to mention all these facts in his application filed for the restoration of application under section 12(2), C.P.C. or in the writ petition. It appears that the conduct of the petitioner in prosecuting the case throughout had been contumacious and not above‑board and that may be one of the reasons why a decree passed as far back as on 4‑1‑1997 still remains unsatisfied and the Bank has not been able to recover the decretal amount.
7. In view of the above, the contention of the learned counsel for the petitioner that as a matter of fact, the case was adjourned to 2‑11‑1998 and the application under section 12(2), C.P.C. was dismissed on 29‑9‑1998 is completely devoid of force and misplaced. It has already been held that the application under section 12(2), C.P.C. was not filed by the petitioner, he consented to the decree, sought permission from the Banking Court to pay the principal amount in instalments, B was always in the knowledge of the proceedings and has been persuading the same all the times. Plea of wrong noting of the date is of no avail to the petitioner. The petitioner has not come to this Court with clean hands to seek an equitable relief.
8. Before parting with the judgment, it may be observed that even if the application under section 12(2), C.P.C. is restored, that would be of no avail to the petitioner, because the said application will ultimately be dismissed as the provisions of section 12(2), C.P.C. have no applicability to the proceedings C arising out of Act XV of 1997, perforce of law laid down in Messrs Gold Star International and another v. Muslim Commercial Bank Limited 2000 MLD 421; United Bank Limited v. Messrs Zafar Textile Mills Limited 2000 CLC 1330 and Emirates Bank International Limited v. Messrs Usman Brothers and others PLD 1998 Kar. 338.
9. In view of the above, I am not inclined to exercise my Constitutional jurisdiction in favour of the petitioner, which is D equitable and discretionary. The petition is devoid of merits and is hereby dismissed with costs.
Q.M.H./M‑841/L Petition dismissed.