2008 PLP 858 (CLD)

MUHAMMAD ASHRAF BHATTI, J.

Through the instant appeal Muhammad Javed Akhtar son of Ch. Zaka Ullah appellant has challenged the vires of judgment and decree dated 19-10-1995 as also the order dated 8-11-2000, (whereby the objection petition was rejected) passed by the Banking Court, Bahawalpur in favour of United Bank Ltd./respondent No.1 for recovery of loan amount Rs.2,64,422 (including mark-up). It stands opposed by the respondent-Bank.

2. Heard the arguments and perused the record.

3. Learned counsel for the appellant submits that two applications were moved before the Banking Court to stop execution proceedings and also restrain from auction of the property mortgaged with United Bank Ltd./respondent No.1 for recovery of loan granted in favour of Shaukat Jalil respondent No.2 allegedly on fake documents to which the judgment-debtor (father of the appellant) was not a party, mainly on the ground that judgment-debtor/Ch. Zaka Ullah had died on 7-10-1991. Further argued that applications were turned down by the said Court, which runs counter to the provisions of Order XXII, C.P.C., according to which no judgment or decree can be passed against a dead person. In support of his contentions learned counsel has placed reliance on the cases reported as Muhammad Naseer v. Mir Azhar Ali Talpur 2001 SCMR 4; Mst. Afshan and another v. IIIrd Additional District and Sessions Judge Karachi (South) City Courts, Karachi and others 2006 CLC 71.

4. It may however, be added here that originally Ch. Zaka Ullah was arrayed as respondent No.3 in the memo. of instant appeal but in compliance of order dated 25-2-2008 passed by this Court necessary amendment was incorporated in the memo. of appeal accordingly to rectify the defect.

5. Learned counsel for the respondents when confronted with the above admitted position as to factum of death of appellant's father prior to the institution of the recovery suit, he has not been able to controvert the assertions made by the learned counsel for the appellant except to the extent that notices were issued through registered post A/D to procure his attendance but judgment under assail does not show that the learned Presiding Officer had satisfied himself as to the correct address given thereon. It appears that ex parte proceedings' were ordered in slipshod manner and that too against a dead' person on the one hand and the applications disclosing the factum of death of Ch. Zaka Ullah were not given any weight on the other whereas it was the bounden duty of the learned Banking Court to take care of the mandatory provisions of Order XXII, C.P.C. In this view of the matter, we are of the firm opinion that, as the learned Court failed to take care of this fact of the case, judgment and decree dated 19-10-1995 are nullity in the eyes of law and so ineffective and inoperative as against the legal heirs of Ch. Zaka Ullah. Therefore, the order dated 8-11-2000 having been passed in relation to property of a dead person is also of no consequence which view finds support from the above mentioned citations. This Court also in another case Mian Muhammad Akram and others v. Muhammad Chiragh and others PLD 2003 Lahore 804 took the same view that suit against a dead person is nullity in the eyes of law and likewise a decree obtained against such person suffers from the same vice.

6. Therefore, keeping in view the above discussion when no proceedings could be initiated against a dead person this appeal is accepted and the impugned judgment and decree dated 19-10-1995 and order dated 8-11-2000 are hereby set aside. Resultantly the suit referred to above shall be deemed to be pending before the learned Banking Court. This case is remanded back to the learned Banking Court, Bahawalpur, for its decision afresh after having heard both the parties and giving them adequate opportunity to produce their respective evidence, if so advised. Since it is an old case the same shall be decided on merits expeditiously but not beyond a period of six months from the receipt of this order. Parties are left to bear their own costs. H.B.T./M-31/L Case remanded.