1986 PLP 110 (MLD)

‑‑‑S. 12(5)‑‑Appeal against order‑‑Order under appeal having merged in final order culminating into decree‑‑Appellant, held, could challenge decree taking all objections in appeal‑‑Appellant not challenging decree, would be barred from challenging order, merged in such decree. General Investments Ltd. v. Dubai Bank Ltd. 1984 S C M R .634 rel. Shaikh Mushtaq Ali for Appellant. Habibur Rahman and Saeed A. Shaikh, A.‑G. for Respondents. ABDUL QADEER CHAUDHRY. J.‑‑The appellant has filed this appeal against the order dated 9‑4‑1985 passed by the Presiding Officer Special Court Banking, dismissing the appellant's application under Order XXXVII, Rule 3, C.P'C. thereby refusing to grant leave to the appellant to appear and defend the suit.

2. According to the appellant the father of the appellant opened an account with the respondent Bank. He was allowed overdraft facilities on security of papers of the property belonging to the appellant. The appellant came to know of the suit against him through a Court notice. He appeared in the Court and accepted service. The appellant moved an application under Order XXXVII, Rule 3 for grant of leave to appear and defend the suit. The Banking Court dismissed the application. The contention of the appellant was that defendant No.2 had never asked for the loan to defendant No.1 nor created equitable mortgage of his aforesaid property by deposit of title deeds. The Court observed that there is nothing on record to show that the signatures were forged. Defendant No.2 had not personally given any affidavit to deny the signature or having not created the equitable mortgage of the said property. The contention of the defendant No.2 that he did not create equitable mortgage was rejected by the Court and it was observed that defendant No.2 has failed to make out an arguable case and that he has plausible defence to make hence his application for leave to defend was dismissed. Thereafter, the learned Special Judge examined the case of the plaintiff and passed the decree in the sum of Rs. 8,89,630.40 against the defendants with interest at 14% per annum with quarterly rests from the date of suit till recovery.

3. The appellant has not challenged the decree and has not filed any appeal against the judgment and decree passed by the Special Court. He has only challenged the order whereby he was refused to give permission to defend the suit. The order whereby the appellant was refused to defend the suit was part of the order whereby decree has been passed but he has only challenged the earlier part of the order but not challenged the decree. Under section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979, no appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment‑debtor, at the discretion of the High Court furnishes security equal in value to such amount. The appellant has neither deposited the amount of the decree or made a prayer for furnishing security. He has not even paid the proper court‑fee on the memo of appeal and paid only Rs. 10 as the court‑fee. The order whereby the appellant was not permitted to defend the suit is merged in the final order culminating into the decree and the appellant could challenge the decree and take all the objections in the appeal which the appellant has not done in the present case. As the appellant has not challenged the decree and has not complied with the provision of section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979, the present appeal is not maintainable. Learned counsel for the respondent and the learned Advocate -General has relied upon the case of General Investments Ltd. v. Dubai Bank Ltd. reported in 1984 S C M R

634. The rule laid down in this authority supports the contention of the respondent.

4. For the aforesaid reasons we see no force in this appeal and the same is dismissed. However, the appellant is at liberty to file appeal against the judgment and decree if he wishes to do so. A . A . Appeal dismissed.