2015 PLP 1969 (CLD)

Brief facts for disposal of this appeal are that respondent No.2 filed a suit for recovery of Rs.3,28,28,160/11 on 23-4-2011 against the appellant and respondents Nos.3 and 4 which came up for hearing before the learned Judge Banking Court No.III, Multan. The said suit was ex parte decreed in the sum of Rs.2,36,15,828 by the said Court vide judgment and decree dated 1-11-2011. The appellant moved an application under section 12(2), C.P.C. read with section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 accompanied by an application for grant of stay and an application for condonation of delay.

2. The said application was opposed by respondent No.2-decree holder by filing written reply. The learned Judge Banking Court No.III, Multan proceeded to dismiss the said application vide order dated 23-9-2014 after hearing the parties.

3. Through this appeal the order dated 23-9-2014 dismissing the application moved under section 12(2), C.P.C. by the appellant has been assailed.

4. Learned counsel for the appellant contended that the appellant left for London U.K. on 2-10-2005 whereas alleged power of attorney in favour of his brother namely Amjad Ali is dated 17-10-2005. Adds that earlier application for setting aside ex parte decree moved on 10-3-2012 on behalf of the appellant was without lawful authority. He next contended that the impugned decree was based on fraud, mis-representation and concealment of facts and that no notice was issued to him and he has been condemned unheard. He also submits that he came to Pakistan on 26-3-2013 upon coming to know about the pendency of execution proceedings before the learned Judge Banking Court No.III, Multan and he filed an application under section 12(2), C.P.C. accompanied by two miscellaneous applications. He vehemently argued that the impugned order is mechanical as it lacks lawful reasons and his contentions as raised in application under section 12(2), C.P.C. have not been considered.

5. Heard.

6. The appellant had earlier filed an application for setting aside ex parte decree on 10-3 2012 which was dismissed on 28-3-2013 by the learned Judge Banking Court No.III, Multan. Neither any appeal against the dismissal of said application was filed nor validity of such application signatures on affidavit, attestation by Oath Commissioner were challenged before any forum nor authority of the learned counsel who has been appearing in the said application has been questioned or any complaint even filed against him. This Court while discussing the unauthorized acts of a counsel, in the case of "Raja Karim Elahi v. Muhammad Arif and others" (2010 MLD 58) has made the following observation:- "There is no denying the fact that the disputed document was executed as far back as on 30-9-1974 and it was never assailed before any forum. The compromise between the parties was effected in presence of their learned counsel and they have not been arrayed as respondents in these applications nor the power of attorneys given to learned counsel have been disputed. The respondent was not a minor during the year, 1999 when compromise between the parties was effected and prior to decision of these revision petitions, he never disputed authority of general attorney."

7. The contents of both the applications filed by the appellant are relatively similar and the earlier application already decided has attained finality in the eyes of law.

8. The appellant is a real brother of Amjad Ali who was the attorney holder of appellant who executed all the documents and mortgaged the property in favour of respondent No.2-decree holder Bank but no allegation of fraud, forgery and misrepresentation had been made against him in his application moved under section 12(2), C.P.C. read with section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The said power of attorney was duly executed before the Sub-Registrar Multan Cantt., in front of eye-witnesses duly pasted on pages 191 to 193 bearing GP No.2082-4, in favour of respondent No.3, who mortgaged the same with his brother Amjad Ali. His brother Amjad Ali has been named as Managing Partner in the partnership deed and is a sharer of 99% in the partnership concern but no allegation has been raised against his brother. Neither the appellant arrayed him as a respondent in the application under section 12(2), C.P.C., nor instituted any complaint against him. The Hon'ble Supreme Court in the case titled "Raja Muhammad Arshad v. Raja Rabnawaz" (2015 SCMR 615) observed as follows:- "Section 12(2), C.P.C. is a substitute for a separate/independent suit for setting aside of a decree. This law was brought about in 1980. In the circumstances an application under section 12(2), C.P.C. has all the relevant attributes of a suit and therefore, the person against whom an allegation of fraud is made is a necessary party and must be impleaded in the application as a respondent."

9. The learned Judge Banking Court No.III, Multan has noted that all legal formalities for summoning of appellant in a suit were fulfilled but the appellant did not put his appearance in the court, then ex parte proceedings were conducted against him and after recording evidence suit was rightly decreed in accordance with law. However, summons/notices were sent on the address given by him to respondent No.2-Bank at the time of availing the finance facility.

10. The learned Judge Banking Court No.III, Multan has also noticed that the appellant showed his present address as 40-Gooshays Drive, Rumford, RM3 9HP, London, UK but the power of attorney allegedly issued to his lawyer Ch. Asif Ali Singhera is neither issued at London nor it is verified by the Consulate General of Pakistan at UK. He cannot at this stage raise the objection that summons/notices were not sent on the address where he is residing now a days especially when he did not produce any proof regarding intimation to the Bank of any change of his address because it was the duty of the appellant to inform the respondent-Bank about the change of his address. The same findings of the learned Judge Banking Court No.III, Multan have not been disputed by the appellant in this appeal.

11. The application under section 12(2), C.P.C. even otherwise is silent about the source of knowledge through which the appellant came to know about the pendency of execution petition. All these facts speak themselves that the application under section 12(2), C.P.C. read with section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 moved by the appellant, was not bona fide, thus, the same has been rightly dismissed by the learned Judge Banking Court No.III, Multan.

12. In view of afore-mentioned circumstances, this EFA has no force and is, therefore, dismissed in limine. SL/N-39-L Appeal dismissed.