2010 PLP 139 (CLD)

This Ist Appeal has been filed against the order dated 26-5-2009, passed by the Banking Court-I, at Karachi, whereby the appellant's application under section 151, C.P.C. was dismissed and legal heirs of deceased defendant No.2 in the said suit were allowed to be joined and amended title of the plaint was directed to be filed. Brief facts are that respondent No.1 had filed a suit in the Banking Court against the respondent No.2 as defendant No.1 and Mrs. Zakia Naseem as defendant No.2 for recovery. The respondent No.2 has been sued as principal debtor, while Mrs. Zakia Naseem was joined as mortgager. It seems that summonses were issued in the said suit to the defendants but the respondent No.2 did not appear in Court and as against him the suit proceeded ex parte. From the side of Mrs. Zakia Naseem the defendant No. 2, an application under Order I, rule 10, C.P.C. seems to have been filed by her legal heirs for joining as defendants and while such application was pending, the appellant, who is the husband of Mrs. Zakia Naseem, filed an application under section 151, C.P.C. praying for dismissal of the suit against Mrs. Zakia Naseem on the ground that she had died much before the filing of the suit and the suit being not maintainable against a dead person, the same be dismissed. Banking Court had dismissed this application of the appellant through the impugned order. Learned counsel for the appellant has contended that the suit against the dead person is not maintainable and Banking Court ought to have dismissed the suit against the defendant No.2, Mrs. Zakia Naseem and by not doing so it has committed illegality. In support of his submissions he has relied upon the case of Mehr Muhammad v. Deputy Settlement Commissioner and another 1979 SCMR 182, Hafiz Brothers (Pvt.) Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1 and Municipal Corporation of Karachi v. Baradio Jumoo Mughal AIR 1946 Sindh

20. On the other hand, learned counsel for the respondent No.1 has contended that the appeal is not maintainable as it has been filed against an interlocutory order, which is not permissible under section 22(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) and that the suit has not been disposed of as yet. We have considered the submissions made by learned counsel for the parties and have gone through the record. At the outset, reference may be made to the provision of section 22(6) of the Ordinance, which reads as follows:-

22. Appeal. -- (6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section

19. This provision in clear terms lays down that there will be no appeal, review or revision against an order accepting or rejecting an application for leave to defend or any interlocutory order of Banking Court, which does not dispose of the entire case before Banking Court. Admittedly, the suit is still pending and interlocutory application has been decided by the impugned order. Appeal against such interlocutory order in terms of provision, quoted above, is barred by law and on this short ground the appeal is liable to be rejected. The counsel for appellant has, however, contended that by dismissing the appellant's application under section 151, C.P.C., the Banking Court has decided the case against Mrs. Zakia Naseem the deceased defendant No.2; and therefore, the appeal is maintainable. Incidentally, we find' no force in this argument as the Banking Court has allowed joining of the legal heirs of deceased Mrs. Zakia Naseem as defendants in the suit and has directed filing of amended title of the plaint and the case, as such, has not been decided as yet. In the case of Hafiz Brothers (supra) relied upon by the counsel for the appellant, the Honourable Supreme Court has observed that there is no cavil to the proposition that the institution of legal proceedings against dead person is of no avail to the concerned litigant and that the conclusion of the High Court that the suit against deceased Mst. Inayat Begum was incompetent and nullity in law. The Court, however, upheld the order of High Court whereby the suit was remanded to the Banking Tribunal with direction to modify the judgment and decree by deleting the name of Mst. Inayat Begum and to examine whether the heirs of deceased Mst. Inayat Begum were validly joined and a valid decree could be made against them. This being the state of law regarding pursuing of suit against a dead person and joining of the heirs of dead person, such exercise is yet to be done in the suit in hand by the Banking Court as regards Mrs. Zakia Naseem, the defendant No.2 and her legal heirs who have been joined in the suit. For the foregoing reasons, this appeal is not maintainable and also has no merit. The same is therefore, 1 dismissed. After hearing the learned counsel for the parties, by a short order dated 28-10-2009 the appeal was dismissed in limine. Above are the reasons for the same. S.A.K./N-48/K??????????????????????????????????????????????????????????????????????? Appeal dismissed in limine.