ORDER`SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

1st Civil Appeal No. D- 15 of 2019

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DATE             ORDER WITH SIGNATURE OF JUDGE ________________________________________________________________

     

Hearing of cases.

 

1.    For orders on office objection 1, 2 & 6 at Flag ‘A’.

2.    For hearing of main case.

3.    For hearing of CMA 541/2019 (stay)

Statement dated 24.06.2019 filedby advocate for applicant.

 

26-06-2019.

Mr. Ashoke Kumar K. Jamba Advocate for the appellant.

Mr. Fayyaz Ahmed A. Soomro Advocate for respondent No.1.

                                                ………

            This appeal has been filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001 against order dated 06.05.2019 passed by the Banking Court No. I at Sukkur, whereby the application filed by the appellant under section 12(2) CPC stands dismissed. Notice was ordered and learned Counsel for the Bank has placed on record certified copy of application filed under Order 9 Rule 7 CPC by the appellant before the Banking Court on 18.08.2017, for recalling of order dated 2.8.2017, through which the Appellant was declared Ex-Parte. This reflects that the Appellant was well aware of the proceedings before the Banking Court, including passing of an order to proceed against him Ex-parte, as this application was filed before passing of judgment dated 31.8.2016. It also appears that admittedly no appeal has been filed against the judgment and decree of the learned Banking Court which has now attained finality.Subsequently an application under section 12(2) CPC was filed before the Banking Court on the ground that proper service was not affected;however, we are afraid this contention is misconceived inasmuch as once a party files an application under Order 9 rule 7 CPC for recalling of an order whereby the said party has been declared Ex-parte for further proceedings, then the plea of irregular service cannot be taken through an application under section 12(2) CPC.The Appellant was well aware of the proceedings against it before the Banking Court when he filed an application under Order 9 Rule 7 CPC, and therefore, as per the requirement of law, the appellant ought to have filed an appeal against the main judgment and decree which he has failed to do so.

            Moreover, and even otherwise, it is settled law that in terms of the provisions of Section 9(5) of the Ordinance, 2001, service through any one of the modes is deemed to be a valid service for the purposes of this Ordinance, in view of the dicta laid down in the cases reported as Ahmed Autos v Allied Bank of Pakistan Limited (PLD 1990 SC 497), Khwaja Muhammad Bilal v Union Bank Limited (2004 CLD 1545), Simnwa Polypropylene (Private) Limited v National Bank of Pakistan (2002 SCMR 476), Allied Bank of Pakistan v Sultan Ali. J. Lilani (2015 CLD 759), Dr. Javed Iqbal v Askari Bank Limited (2017 CLD 1140), Abdul Sattar v Bank of Punjab (2017 CLD 1247).

            Therefore, in these circumstances this appeal is misconceived and is accordingly dismissed.

 

                                                                                                            JUDGE

           

                                                           JUDGE

Irfan/PA.