Law: Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)

Section: 19

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--Ss. 9, 19 & 22--Civil Procedure Code (V of 1908), S.12(2), O.VII, R.11 & O.IX, R.13---Suit for recovery of loan---Execution proceedings---Challenging , decree on ground of fraud and misrepresentation---Setting aside ex parte decree, application for--- Application for setting aside ex parte decree and challenging , decree on ground of fraud and misrepresentation filed by the defendant had been dismissed by the Banking Court---Validity---Since the defendant, admittedly was not served on his address, given in the memo of plaint, but on another address, notices were sent, where the defendant was not residing; and the defendant came to know about the proceedings when plaintiff Bank filed application under O.VII, R.11, C.P.C., prima facie application under S.12(2), C.P.C. was maintainable---Controversy, whether any fraud and misrepresentation had been made in the matter, could be resolved after recording the evidence---Impugned order was set aside---Banking Court was directed to frame the issues and after recording the evidence and hearing the parties, decide the same afresh. Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710, Mirza Mahmood Baig v. Mirza Ashfaq Baig 1993 MLD 640 and Ghulam Mehmood v. Hukam Khan and others 2001 MU) 366 ref. ORDER Aggrieved by the order dated 5-12-2008, whereby learned Banking Court No.II, dismissed the application filed by the appellant under section 12(2) read with Order IX Rule 13, C.P.C., listed appeal has been filed. Heard Mr. Abdus Salam Baloch, learned counsel for the appellant, and Mr. M. Hassan Akbar, learned counsel for respondent No.1. Mr. M. Hassan Akbar, learned counsel for respondent No.1, at the very outset raised the *objections in support of impugned order that the appellant has failed to show why he had not appeared before the Banking Court No.II in suit, secondly, how he came to know about the judgment and decree passed by the court and thirdly, that the application under section 12(2), C.P.C. was filed in the execution proceedings and executing court cannot go behind the decree. He, in support of his contentions, relied upon the cases…

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