2005 PLP 295 (CLD)

MAULVI ANWARUL HAQ, J.‑‑‑In a suit filed by the respondent‑Bank against the appellants an ex parte decree was passed on 17‑11‑2001. On 3‑10‑2002 the appellants filed an application for setting aside of the ex parte decree. This application was dismissed for n6n‑prosecution on 20‑5‑2003. On 30‑6‑2003 an application was filed for restoration of the said earlier application. This application has been dismissed by learned Judge, Banking Court‑I, Gujranwala, on 1‑7‑2003.

2. Learned counsel for the appellants argues that sufficient cause had been made out for the restoration of the said application and the appellants ought not to have been punished for the negligence of their learned counsel. The learned counsel for the respondent‑Bank, on the other hand, objects that the appeal is not competent. Further contends that the learned trial Court has considered the plea raised in the application and has disallowed the same with reasons.

3. We have gone through the records, with the assistance of the learned counsel for the parties. We find that in the application dated 3‑10‑2002 for setting aside of the ex parte decree, the availing of the finance has not been denied. On the other hand, a prayer has been made therein that in case of hardships the said debtors should be facilitated by giving ample time in the matter of re payment. Now the application was taken up on 20‑5‑2003 when none appeared for the appellants and consequently the same was dismissed. In the application dated 30‑6 2003, it has been stated that Muhammad Ashraf appellant appeared in Court and he was told that the Reader has gone to the Banking Court‑II along with all the files. He then met the Reader who told him that the case has been adjourned to 2‑6‑2003. On this date, the learned counsel did not appear and the next date was given as 14‑7‑2003.

4. Now the learned trial Court has observed that neither the application is signed by the said Muhammad Ashraf appellant nor is accompanied by his affidavit. It has further been observed that since 19‑4‑2003 all the cases of Banking Court‑I are being heard in his Court. Then, it is stated that there is no explanation for the absence of the learned counsel.

5. Having thus examined the records, apart from the fact that the competency of the appeal is not free from doubt, we find that no cause or reason stands made out for absence of the appellants on 20‑5‑2003. Needless to state that absence of the appellants as well as their learned counsel has to be explained. There is no explanation as to why the appellants other than Muhammad Ashraf did not appear and as to why the learned counsel did not appear. While there is nothing on record to support the allegation that Ashraf was present on the said date. We are, therefore, not inclined to interfere with the impugned order in this appeal. 6 At this stage, the learned counsel for the appellants stated that the Tractor regarding which the loan was issued was never delivered to the appellants. We are afraid no such plea is to be found in the original application filed for setting aside of the decree. The learned counsel for the respondents, on the other hand, states that the execution process will be kept pending for three months and let the appellants approach the Bank in the matter.

7. In the aforenoted circumstances, this F.A.O. is dismissed. However, as undertaken by the learned counsel for the respondent‑Bank, the execution process shall remain suspended for a period of three months commencing today and in the meanwhile the appellants shall approach the respondent‑Bank. The concerned officers shall hear them and work out the amount due and the appellants be given an opportunity to pay the same within the said period of time. M.H M‑400/L Appeal dismissed.