2005 PLP 918 (CLD)

‑‑‑S.19‑‑‑Dismissal of execution application due to non appearance of decree‑holder and his counsel‑‑‑Plea for restoration of such application was that counsel of decree holder was busy before High Court‑‑‑Banking Court disallowed application for restoration ‑‑‑Validity‑‑ Appearance before another Court or even before Higher Court would never be treated as a good ground for non appearance before another Court, where case was fixed‑‑Where counsel had other engagements before High Court, then some alternate arrangements should have been made to appear before Banking Court‑‑‑No representative of decree‑holder was present before Banking Court on relevant date‑‑‑Banking Court in such circumstances was fully justified to dismiss application for restoration‑‑‑High Court dismissed appeal. Aqeel Malik for Appellant. Irfan Masood Sheikh for Respondents. On a suit for recovery instituted by the appellant- Bank a decree for a sum of Rs.4,75,037 with costs and mark‑up till realization of the decretal amount was passed by the learned Judge Banking Court No.V, Lahore on 16‑10‑2001. An appeal qua the same is statedly pending. Since, however, there was no stay granted by the learned Appellate Court the execution of the decree was taken in hand by the learned Banking Court. A sum of Rs.2,20,000 had by then been paid by the judgment‑debtor. On 16‑7‑2002 it was stated before the learned Banking Court on behalf of the judgment‑debtor No.3 that only a sum of Rs.1,79,000 was left to be paid, however, the learned counsel for the decree‑holder sought adjournment to verify the said assertion. The case was accordingly adjourned to 31‑7‑2002. On that date it was adjourned to 15‑10‑2002. A receipt for payment of Rs.1,80,000 as against Rs.1,79,738 was produced before the Court on 15‑10‑2002, in view thereof the execution file was consigned to record. Since such an order was passed in absence of the decree‑holder or his counsel an application for restoration/revival of the execution was filed, which was dismissed for non -prosecution on 27‑1‑2003. For the restoration of that an application was filed, which has eventually been dismissed by the learned Banking Court on 20‑9‑2003. This is appeal thereagainst.

2. The learned counsel for the appellant contends that the learned executing Court has acted on an erroneous assumption as if the decretal amount had been paid and decree had been satisfied whereas the entire decretal amount had not yet been paid by the judgment‑debtor. The learned counsel for the respondents refers to a copy of the statement of account issued on 28‑2‑2002 to show that a sum of Rs.1,79,738 was only due against the respondent/ judgment‑debtor and since a sum of Rs.1,80,000 was paid by the latter, nothing remained due against the judgment- debtor.

3. Since order dated 20‑9‑2003 has been assailed through this appeal by which the dismissal of the application filed by the appellant had been ordered, we do not consider it appropriate to make any comment/observation as to what indeed was due or whether the decree had been satisfied in full. As noted above the execution proceedings were consigned to record on 15‑10‑2002 and application seeking restoration thereof was dismissed on 27‑1‑2003. It is to be seen whether there was any justification for non‑appearance before the Banking Court on 27‑1‑2003 when the said application was dismissed for non‑prosecution. The application spells out only one reason and that is that the learned counsel for the decree holder was on that day appearing before a learned Bench of this Court. Though such an assertion is supported by an affidavit of the learned counsel, we may observe that appearance before another Court or even before the Higher Court has never been treated as a good ground for non‑appearance before another Court where the case is fixed. In case the learned counsel had other engagements before this Court some alternate arrangement could have been made to appear before the Banking Court. The order‑sheet shows that even no representative of the appellant Bank was present before the learned Banking Court on the said date. The Court in the circumstances was, therefore, fully justified to dismiss the application. Thus by disallowing the application for restoration the Court has not acted illegally in any way. We find, therefore, no justification to interfere with the order passed by the learned Banking Court. The appeal is accordingly dismissed with no order as to costs. S.A.K./B‑72/L Appeal dismissed.