Messrs AMMAR RICE DEALERS and 2 others vs NATIONAL BANK OF PAKISTAN

' MUHAMMAD SAYEED AKHTAR, J.---Succinctly stated the facts giving rise to this appeal are that respondent-Bank filed a suit on 18-10-2001 before the Banking Court No,2, Gujranwala, ' for recovery of Rs.8,42,427. The appellants/defendants filed an application for leave to defend the suit. None appeared on behalf of defendants, the suit against them was ex parte decreed on 21-1-2002. An application for setting aside the ex parte decree dated 21-1-2002, was moved on the ground that the learned counsel for the judgment-debtor inadvertently noted down the date of hearing as 6-2- 2002 instead of 21-1-2002. The said application for setting aside the ex parte decree was dismissed vide order dated 19-4-2002.

2. Learned counsel for the appellants contended that the date of hearing was inadvertently noted down by the learned counsel and the mistake being bona fide, the Banking Court should have accepted the application for setting aside the ex parte decree. Conversely, learned counsel for the respondent submitted that the remedy under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was not available to the appellant. The only remedy was to file an appeal before this Court against the judgment dated 21-1-2002.

3. We have gone through the relevant provisions of Ordinance XLVI of 2001. Section 12 of the said Ordinance reads as under:-- "Power to set aside decree.---In any case in which a decree is passed against a defendant under subsection (1) of section 10 he may, within twenty one days of the date of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order to set it aside; and if he satisfied the Banking Court that he was prevented by sufficient cause from making an application under section 10, or that the summons was not duly served, the Court shall make an order setting aside the decree against him upon such terms as to costs, deposit in cash or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order."

' The bare reading of the above section shows that the defendant against whom the decree has been passed, can apply for setting aside the decree if (i) the same has been passed under section 10(1) of the Ordinance, and (ii) where the summons was duly served upon him when he has the knowledge of the decree. Under section 10(1) of the Ordinance, the defendant is not entitled to defend the suit unless he obtains leave from the Banking Court. In the instant case, the appellant was duly served and the application for defending the suit was also filed. In this view of the matter, the remedy under section 12 of the Ordinance was not available to the appellants. The application before the Banking Court was misconceived. The learned Banking Court by proceeding to decide the application on merits, completely misdirected himself as to the application of law. The said application for setting aside the ex parte decree under section 12 of the Ordinance, being not maintainable, the present appeal is also not competent.

4. For what has been discussed above, this appeal has no merit and is dismissed with no order as to costs.