2005 PLP 1040 (CLD)

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 fol. (b) Void order‑‑‑ ‑‑‑‑ When basic order is unlawful, the superstructure built on it would fall to the ground automatically. Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak) 104 rel. Taqi Ahmad Khan for Appellant. Farrukh Mehmood Salehria for Respondents. Brief facts, out of which the present appeal arises are that the respondent No. 1 filed a suit for the recovery against respondents Nos.2 to 8 before the Banking Court. The learned Banking Court decreed the same vide judgment and decree dated 4‑7‑1995. The appellant‑Bank filed an execution petition against the respondents Nos.2 to 8 before the learned executing Court. The appellant filed an objection petition before the learned Banking Court, which was dismissed for non‑prosecution vide order dated 17‑9‑1998. Thereafter the appellant filed an application for the restoration of the same, which was also dismissed by the learned executing Court vide order dated 24‑6‑1999, hence the present appeal.

2. The learned counsel for the appellant submits that the learned Banking Court erred in law to dismiss the application of the appellant on 24‑6‑1999, as the said date was not a date of hearing. In support of his contention, he relied upon Messrs Aziz Flour Mills, Bahawalpur and 2 others v. The Industrial Development Bank of Pakistan 1990 CLC 1473. The learned counsel for the respondent‑Bank submits that the learned Banking Court has dismissed the application of the petitioner with cogent reasons, therefore, the learned counsel of the appellant failed to point out any infirmity or illegality in the impugned order of the learned executing Court.

3. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. The learned Banking Court/Executing Court had erred in law to dismiss the application of the appellant on 17‑9‑1999, as the same was not a date of hearing in terms of law laid down by the Honourable Supreme Court of Pakistan in a case reported as Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC

678. It is also a settled principle of law when the basic order is unlawful, the superstructure would fall to the ground automatically, as law laid down by the Honourable Supreme Court of Pakistan in a case reported as Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak) 104.

4. In view of what has been discussed above, the present appeal is accepted, the impugned orders are set aside. Parties are directed to appear before the learned Executing Court on 20‑1‑2004. The learned Banking, Court/Executing Court is directed to decide the case within a period of two months. The learned counsel of the parties/parties are directed to cooperate with the learned Court, so that matter may be finally decided within fixed period. The party who, fails to cooperate with the Court, then Court shall invoke personal provision against the said party. M.H./K‑3/L Case remanded.