2002 PLP 407 (CLD)

‑‑‑‑S.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dismissal of execution petition for non‑prosecution on a date when proceedings were fixed only for awaiting the reply from Head Office of the decree‑holder‑‑‑Validity‑‑‑Execution petition could not have been dismissed in default on a date not fixed for hearing‑‑‑Impugned order could not be said to be a legal order, which was set aside by High Court in exercise of Constitutional jurisdiction‑‑‑Constitutional petition was accepted. Syed Haider Ali Shah for Petitioner. Nemo for Respondents. Date of hearing: 10th October, 2001. A.D.B.P. has filed the present Constitutional petition thereby challenging the orders dated 15‑5‑1996 and 21‑7‑1996 passed by respondent No.5 with a prayer that the same may be set aside and the judgment and decree dated 15‑6‑1993 may be ordered to be executed in accordance with law.

2. Brief facts leading to the filing of the present petition are that a suit for recovery of Rs. 5,37,287 filed against one Mst. Anwar Begum deceased who is now represented by respondents Nos. l to 4, was decreed ex parte on 15‑6‑1993 for a sum of Rs.4, 77, 739 with costs of Rs.21,171 by the then Chairman, Banking Tribunal, Lahore. Pursuant to the above, an execution petition was filed and thereafter, one Aslam Gurdaspuri filed an application under section 6(5) of the said Banking Tribunals ordinance, 1984, on 27‑3‑1996, seeking setting aside of the ex parte decree dated 15‑6‑1993, which was accepted by respondent No.5 vide order dated 15‑5‑1996 and consequently the execution petition was dismissed for non‑prosecution vide order dated 21‑7‑1996, thus, both the orders have been assailed through the filing of this Constitutional petition.

3. Office has reported that the respondents were served through the issuance of post card for today, but none of them has entered appearance, thus, they are proceeded ex parte.

4. Upon the examination of an application (Annexure C) purportedly filed on behalf of Aslam Gurdaspuri through his learned counsel, it is evident that the same was not even signed by any person. Moreover, Aslam Gurdaspuri has no nexus with the judgment and decree and he was not even party to the proceedings. Admittedly, no decree was passed against the said Aslam Gurdaspuri. It is discernible from the record that respondents Nos. 1 to 4, against whom an ex parte decree was passed, did not file any application seeking setting aside of the ex parte judgment and decree dated 15‑6‑1993 and, thus, the said judgment and decree attained finality as against respondents Nos. 1 to

4. Aslam Gurdaspuri, had no locus standi to file an application either on his behalf or on behalf of respondents Nos. 1 to 4, as it has nowhere been stated in the application itself that he has either been authorized to file such an application or is acting as an attorney on behalf of respondents Nos. l to

4. The said application was misconceived and on the face of it was not maintainable. Unfortunately, the then Banking Tribunal did not even peruse the contents of the application and mechanically proceeded to pass the impugned order dated 15‑5‑1996. The impugned order dated 15‑5‑1996 has clearly been passed in complete oblivion of the record of the case and the documents on the record.

5. Another aspect of the case which cannot be ignored is regarding the direction given by the then Banking Tribunal to Chairman, A.D.B.P. for remission of the mark‑up. Clearly the then Banking Tribunal has exceeded from his jurisdiction and, thus, the impugned order was passed in excess of jurisdiction, thus, not sustainable on this count too.

6. So far as the order dated 21‑7‑1996 is concerned, that cannot be said to be a legal order as admittedly 21‑7‑1996 was not the date of hearing as the same was fixed only for awaiting the reply of the Head Office, therefore, the execution petition could not have been dismissed in default

7. In view of the above reasons and conclusions I am constrained to hold that the impugned orders dated 15‑5‑1996 and 21‑7‑1996 passed by respondent No. 5 are exceptionable and I am inclined to exercise my Constitutional jurisdiction in the matter. Thus, while accepting the writ petition the impugned orders dated 15‑5‑1996 and 21‑7‑1996 are hereby declared as illegal, without lawful authority and having no legal effect. The result would be that the execution petition filed by the petitioner‑Bank shall be deemed to be pending before the newly‑constituted Banking Court and the same will be processed and decided in accordance with law. There is no order as to costs. S.A.K./A‑343/L Order accordingly.