Law: Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)

Section: 39

Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)--S. 39---Civil Procedure Code (V of 1908), O.XXI, Rr. 58, 89 & O.XXII, R.4---Constitution of Pakistan (1973), Art.185--­Suit for recovery of loan amount---Defendant died during pendency of suit---Bank did not implead all the legal heirs of deceased defendant, but impleaded only his two sons---Suit was decreed ex parte and mortgaged property was put to auction---Respondent (widow of deceased defendant) after coming to know of ex pane decree made application for deposit of decretal amount---Trial Court without deciding such application confirmed auction, but same was set aside by High Court ---Validity---No appeal for setting aside ex parte decree had been filed---Decretal amount alongwith 5% of purchase money had not been deposited---Bank had failed to bring legal heirs of deceased defendant on record, which was a mandatory requirement of law, thus, had deprived his legal heirs to defend the suit properly ---Non­impleadment of respondent and no decision on such application had caused serious prejudice to her (the widow)---Such was a serious illegality, which could not be ignored---Sale in such circumstances could not be confirmed---Provisions of O.XXI, R.89, C.P.C., could not be made applicable as such application remained undecided---Impugned was well-reasoned and unexceptionable---Supreme Court dismissed appeal and petition filed by Bank. JUDGMENT JAVED IQBAL, J.---By this common judgment, we propose to dispose of the above-captioned Civil Appeal bearing No.355 of 1999 and Civil Petition bearing No.456-L of 1999 as both are directed against the judgment dated 26-1-1999, whereby the appeal preferred on behalf of respondent has been accepted by the learned Single Judge of the Lahore High Court, Lahore and orders dated 27-3-1997, 4-4-1997 and 31-5-1997 passed by the learned executing Court have been set aside. 2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the respondent obtained an ex parte order for the recovery of loan amounting to Rs.4,91,947 against Messrs Madina Ice Factory etc. During the pendency of the suit Talib Hussain…

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