2007 PLP 1191 (CLD)

MUHAMMAD QAIM JAN KHAN, J.

My this order shall dispose of C.M. No.9 of 2004 which is a petition under section 12(2) C.P.C. for setting aside the judgment and decree dated 27-4-1998 to the extent of late Mian Allauddin (defendant No. 2 in O.S. No. 26 of 1997) .

2. Short facts of the case are that two finance facilities, one of Rs.8.564 Million and the other of Rs.9.10 million were extended, on request, by National Development Finance Corporation (N.D.F.C.) to Messrs Mian Allauddin Industries (Pvt.) Limited Industrial Estate Hattar (defendants Nos.1 to 5) vide agreements, dated 8-4-1993. The mark-up price was fixed at Rs.19.061 million on the terms and conditions stipulated in the agreements.

3. It is to be noted that the repayments was secured through personal guarantee of defendants 2 to 4 and 5, pledge agreements, mortgage ,deed, demand promissory note letter of hypothecation, irrevocable power of attorney and deed of floating charge.

4. The plaintiff-N.D.F.C. made repeated demands for the return of loan which had now been enhanced with mark-up to a sum of Rs.38,423,

516. Under the Finance agreements, in case of default in repayment, the creditor was entitled to claim liquidated damages @ 20% which has been calculated as Rs.76,84,

703. As the defendants failed to repay the amount, the N.D.F.C. brought a suit against the defendants for the recovery of Rs.46,108,219.

5. The defendants Mian Jamil-Akhtar etc. filed petition for leave to defend which was argued at length after which this Court vide its judgment and decree dared 27-4-1998 rejected the application for leave to defend and granted a decree to the plaintiff for the recovery of a sum of Rs.39.022 million against the defendants. After this decree, execution proceedings started, some of the properties of the J.Ds. were auctioned while some were attached when the petitioners Mumtaz Begum etc, filed the instant petition under section 12(2), C.P.C.

6. The petition was seriously resisted by the Decree-holder CIRC and after hearing the detailed arguments, this Court vide order dated 31-5-2004 dismissed the petition with no order as to costs.

7. Aggrieved from the said order, Mumtaz Begum etc. preferred appeal before a Bench of this Court as F.A.B. No. 63 of 2004. The case was argued before the learned Bench and after hearing the arguments, the learned Bench by its order dated 8-12-2004, accepted the appeal set aside the order dated 31-5-2004 of Banking Judge and remanded the case, back for decision afresh to the extent of liability of Mian Allauddin predecessor of the appellant after affording opportunity to the parties to establish their respective contentions.

8. After the remand order, petitioners were allowed to produce their oral as well as documentary evidence. From petitioner's side, Mian Nasiruddin son of Mian Allauddin appeared as P.W. and closed their case. Learned counsel for decree-holder bank recorded the statement on 26-9-2005 to the effect that he does not want to produce any evidence and wants to argue the case. Consequently detailed arguments of the learned counsel for the parties have been heard and case file perused.

9. A bare perusal of the statement .of P.W. especially the cross-examination and the relevant documents attached clearly shows that late Mian Allauddin died on 27-3-1996 and was buried on 29-3-1996 after performing funeral prayers and in this behalf, cutting of the newspapers are available on the record. Admittedly the decree is dated 27-4-1998 while Mian Allauddin was by the time already dead who died on 27-3-1996 and this fact was in the know of Mian Jamil Akhtar who was the MD of the business concern. Neither in the application for leave to defend nor in any other documents, they disclosed the fact of the death of their father. P.W.1 Mian Nasiruddin is residing at U.K. and is still there. He is an elected City Councillor of Stoke On Trent. Their inheritance mutation has already been attested. The decree-holder bank desperately failed to extract any thing from the mouth of the P.W. which can go in their favour and moreover, no evidence in rebuttal has been produced. So this factum is crystal clear that long ago before the decree of the Banking Court, Mian Allauddin was dead and no decree can be obtained against a dead person. The petitioners who were the legal heirs of late Mian Allauddin were not in the know of the proceedings and it is also very strange that one of the real sons of the deceased Mian Jamil Akhtar did not inform the Court regarding the death of his father.

10. So in this background of the case, C.M. No.9 of 2004 which is in the shape of petition under section 12(2), C.P.C. is hereby accepted and judgment and decree of this Court dated 27-4-1998 is hereby set aside only to the extent of Mian Allauddin (late) with no order as to costs. Case to come up for further proceedings. H.B.T./118/P Order accordingly.