1997 PLP 227 (MLD)

MALIK MUHAMMAD QAYYUM, J.‑‑‑These two appeals have been filed under section 12 of Banking Companies (Recovery of Loans) Ordinance, 1979 to assail the orders passed by the Special Court (Banking) dismissing the application of the appellants for grant of leave to appear and defend the suit. The office has objected to the maintainability of these appeals on the ground that the order passed by the Banking Court are interim in nature.

2. In opposition of the aforesaid objection Dr. Danishwar Malik and Mr. Aatir Mahmood, Advocates for the appellants have both contended that under Banking Companies (Recovery of Loans) Ordinance, 1979 an appeal lies not only against the decree and judgment but also against the order and as such the appeals were maintainable. Learned counsel have further contended that as by virtue of the order impugned in these appeals the appellants have been denied to appear and defend the suit the said order is final and not interim in nature, as against the appellants.

3. We are unable to agree with the learned counsel for various reasons. Although it is true that under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 an appeal lies not only against judgment and decree but also against an order but order under section 12 has to be interpreted jurisdem generis and must take colour from the preceding words. Moreover the legislative intent has been made further clear by adding a proviso to the effect that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. Admittedly the suit before the Special Court is still pending and had not yet been disposed of. In these circumstances these appeals are clearly hit by the proviso.

4. We are also not impressed with the argument that as the appellant has been denied the leave to defend the suit the order against him is final. Notwithstanding that the application for leave is dismissed the Court is still to consider the question as to whether or not a decree is to be passed in the suit which is still pending. The order impugned in this appeal is not by itself conclusive of the controversy between the parties and is not executable as such. It is only when a decree is passed against the appellant that he can come in appeal and the appellant is not remedyless while doing so as provided by section 105 of the Code of Civil Procedure, 1908.

5. It may be stated to the credit of the learned counsel for the appellant that he has brought to our notice a decision of the Hon'ble Supreme Court of Pakistan reported as Pakistan Fisheries Ltd., Karachi v. United Bank Ltd. PLD 1993 SC 109 which appears to be conclusive of the controversy. However the learned counsel had attempted to distinguish the precedent case by arguing that there the appeal had been filed against an order granting the leave which was held to be interlocutory and the appeal had been filed by the plaintiff before the trial Court. We are however unable to see any such distinction. The Supreme Court of Pakistan has in unmistakenable terms held that the orders by which the controversy is not finally decided are interim and interlocutory in nature. Accordingly, we have no hesitation in upholding the office objections. These appeals are, therefore, not maintainable and are dismissed as such. H.B.T./Z‑17/L Appeals dismissed.