2004 PLP 779 (CLD)

Mian Nasir Mehmood for Respondent. MIAN HAMID FAROOQ, J.‑‑‑The applicant/ appellant has filed the instant application under section 5 of the Limitation Act, seeking condonation of delay in filing the application (C.M. No.837 of 2002) for the re‑admission of the appeal, which was dismissed for non‑prosecution, on 29‑5‑2001. The contents of this application are supported A by the affidavit of the appellant, to which there is no rebuttal, thus, deeming the averments of the application constituting sufficient cause for the condonation of delay, the present application is allowed and the delay in filing the main application is hereby condoned.

2. C. M. stands disposed of. C.M. No.837 of 2002.

3. For the reasons stated in the application which is supported by the affidavit, to which there is no rebuttal, we feel that the applicant has been unable to make out a case for re‑admission of the appeal, thus, we, while accepting the application, order for the re‑admission of the main appeal to its original number.

4. C.M. stands disposed of. Main appeal.

5. At the request of both the learned counsel for the parties, the main appeal is taken up today.

6. Through the filing of this appeal, the appellant has called in question order dated 4‑6‑1996, whereby the then learned Banking Tribunal dismissed an application, filed by the appellant, for the setting aside of ex parte decree dated 10‑11‑1993.

7. Precisely stated, the facts leading to the filing of the present appeal are that an ex parte decree for the recovery of Rs.2,63,236 was passed against the appellant, favouring the respondent‑Bank by the then learned Banking Tribunal, vide judgment and decree dated 10‑11‑1993. Upon attaining knowledge about the said ex parte decree, the appellant, on 22‑1‑1994, filed an application seeking setting aside of ex parte decree, which was opposed by the respondent‑Bank and ultimately, learned Banking Tribunal dismissed the said application vide order dated 4‑6‑1996, hence the present appeal.

8. After addressing the arguments at length, learned counsel for the respondent submitted that he has no objection to the acceptance of the appeal and for the remand of the suit to be decided afresh by the learned Judge Banking Court. This course of action was readily accepted by the learned counsel for the appellant.

9. In view of the above consensus, arrived at between the learned counsel for the parties, the present appeal is accepted and the impugned order dated 4‑6‑1996, passed by the learned Banking Tribunal, is set aside with no order as to costs. The result would be that the application, filed by the appellant, for setting aside the ex parte decree is allowed and consequent to that the ex parte decree dated 10‑11‑1993, is also set aside. Consequently, now the suit filed by the respondent‑Bank against the appellant shall deem to be pending before newly constituted Banking Courts, under Financial Institutions (Recovery of Finances) Ordinance, 2001. The appellant is allowed a period of 10 days, from today for filing an application for leave to defend the suit, as provided under section 12 of Ordinance XLVI of 2001, and the Banking Court is directed to, at the first instance, decide the said application within a period of two months from today. However, if no such application would be filed by the appellant within the stipulated period, needless to say that law will take its own course. M.B.A /B‑119/L Order accordingly.