2013 PLP 583 (CLD)

IJAZ AHMAD, J.

The respondent-bank instituted a suit for recovery of the financial facility advanced to the appellant. An ex parte decree dated 10-8-2009 was passed in favour of the plaintiff-respondent. Appellant made an application for setting aside the ex parte decree contending, that he had not been properly served. Reply was sought. It was submitted. Meanwhile converting the suit into execution proceedings the learned Banking Court fixed the reserve price of the mortgaged property, issued the schedule for auction of the property and adjourned the matter to 17-9-2011 for submitting the report of the auctioneer for the day set for reporting the result or the auction, the application for setting aside the ex parte decree was also adjourned vide order dated 8-7-2011 which is being impugned through this appeal.

2. It is contended by the learned counsel for the appellant that announcing a schedule and setting a date for report regarding the auction proceedings before deciding the application for setting, aside ex parte proceedings will be tantamount to put the cart before the horse and that the court should have decided the application first either way.

3. This appeal is opposed by the learned counsel for the respondent bank. It is contended that this appeal is not proceedable. It is barred by law of limitation. The impugned order having been passed on 8-7-2011 the instant appeal should have been preferred within 30 days. This appeal preferred on 12-9-2011 is hopelessly time barred even if requisite time spent in obtaining, the certified copies or the order is excluded. Further that the law postulates that after passing of the decree the plaint is converted into execution lion proceedings therefore, the execution proceedings and the application could run simultaneously, Further contends that the appellant should have resisted the execution proceedings at its very initiation and should have not waited the day when the property was put to auction and schedule was announced.

4. We hat e hard die learned counsel for the parties and have also gone through the record.

5. The instant appeal impugning the order dated 8-7-2011 should have been filed within 30 days i.e. till 7-8-2011. The crucial day fell in summer vacation which ended on 11-9-2011. The appeal preferred on 12-9-2011 i.e. the first day the court opened after the summer vacation is within the period of limitation. Setting a schedule for auctioning mortgaged property and fixing a date for submission of the auction report without deciding the appellant's application for setting aside the ex parse decree is declared illegal. The order has been passed in wrong exercise of the jurisdiction vested in the court. As for argument of the learned counsel that the appellant did not press for decision of his application at the very beginning, the law is not acceptable to law. The appellant could wail till the executing court without deciding his application proceeds for the auction of his property. MH/F-37/L Order accordingly.