2013 PLP 501 (CLD)

AMIN-UD-DIN KHAN, J.

Through this appeal, the appellant has challenged the order dated 14-7-2010 whereby the application filed by the appellant/defendant under Order IX, Rule 13 of the C.P.C. for setting aside the alleged ex parte judgment and decree was dismissed.

2. In a suit filed by the respondent-Bank for recovery of Rs.14,143,542 along with mark-up and cost of funds a decree dated 10-2-2010 was passed, after dismissing the application filed by the appellants/defendants for leave to defend the suit. Prayer in this appeal is that case be remanded to the learned Judge Banking Court for deciding the application of the appellant/defendant for leave to defend the suit, on merit, after hearing both the parties.

3. Learned counsel for the appellant states that on 10-2-2010 due to non-appearance on behalf of the defendant/appellant, the application for leave to defend the suit was dismissed and the suit was decreed. On 15-2-2010 the appellant filed application under Order IX, rule 13 of the C.P.C. read with section 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside the ex parte judgment and decree dated 10-2-2010, which was dismissed, vide order dated 14-7-2010. Hence, this appeal.

4. On the other hand, the learned counsel for the plaintiff/respondent-Bank argues that the application for leave to defend was dismissed on merits and a decree was also granted in favour of the plaintiff/respondent after dismissal of application for leave to defend, therefore, application under Order IX, rule 13 of the C.P.C. was not competent and further this appeal is also not competent against the judgment and decree. Submits that the appellant was required to file a regular appeal against the judgment and decree, which he has not filed, therefore this appeal against the order is not competent.

5. We have heard the learned counsel for the parties at length and have also gone through the record with their able assistance.

6. We have perused the impugned order refusing the leave to defend the suit. We have noticed that the learned Judge Banking Court has decided the application for leave to defend, on merits. The contention of the appellant that it has been dismissed for non-appearance is not factually correct. In our view the application for leave to defend the suit was dismissed on merits and a decree was passed after the dismissal of application for leave to defend, the decree was assailable before this Court through an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and filing of an application in these circumstances for setting aside ex parte order under Order IX, rule 13 of the C.P.C. was misconceived and the same has rightly been dismissed by the learned Judge Banking Court. In the similar circumstances in the cases of Messrs Agrocare and 3 others v. Zarai Taraqiati Bank Ltd. (2011 CLD 990) and Mst. Tahira Yasmeen and another v. Muslim Commercial Bank through Branch Manager and 6 others (2005 CLD 927) the application for setting aside ex parte judgment and decree has been held to be not maintainable in law. The argument of the learned counsel for the appellant/defendant that the application for leave to defend cannot be dismissed for non-prosecution is not a point in issue in this case. As we have observed that the learned Judge Banking Court, after considering the grounds mentioned in the application for leave to defend dismissed the application and as the same was not dismissed for non-prosecution, therefore, the arguments advanced by the learned counsel for the appellant are not helpful to the appellant. In this view of the matter we are clear in our mind that as the application for leave to defend was refused on merits, therefore, no application under Order IX, rule 13 of the C.P.C. was competent. The appellant was having a right to file the appeal against the judgment and decree. He has not filed the appeal rather he has filed application for setting aside the ex parte judgment and decree, which was not competent. The learned Judge Banking Court has rightly dismissed the application filed by the appellant under Order IX, rule 13 of the C.P.C. No case for interference by this Court is made out, therefore, this appeal being devoid of any merit is dismissed. KMZ/S-120/L Appeal dismissed.