' Present appeal, filed by the appellant/judgmentdebtor No,8, proceeds against order dated 25-1- 2003, whereby the learned Judge Banking Court accepted the application, filed by the appellant, under section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001, and set aside the judgment and decree passed against him, subject to the furnishing of security for the sum of Rs,17,00,000.
2. Precisely stated the facts relevant for the decision of the present appeal are that pursuant to passing a decree, for the recovery of Rs,17,52,958.80, against the appellant and respondents Nos,2 to 8, vide judgment and decree dated 25-4-1996, the decree-holder/respondent-Bank filed an execution petition which is pending adjudication before the learned Judge Banking Court. During the course of execution proceedings, the appellant filed an application under section 12 of Ordinance XLVI of 2001, for setting aside the aforenoted decree, before the learned Judge Banking Court, which was conceded by the respondent-Bank and a statement was made that the plaintiff has no objection to the acceptance of the prayer of appellant in case he furnishes security in respect of the decretal amount. Thereupon, the learned Judge Banking Court accepted appellant's application and set aside the judgment and decree, passed against him, upon furnishing security for the sum of Rs,17,00,000 vide order dated 25-1-2002 and the said order has prompted the appellant to file the present appeal.
3. The learned counsel for the appellant, while relying upon an unreported judgment, rendered by the Honourable Apex Court of the country in Civil Petition No,1433-L of 2002, titled "Saeeda Perveen v. United Bank Limited", has contended that the impugned order passed by the learned Judge Banking Court, to the extent of imposing the condition of furnishing security for a sum of Rs,17,00,000, is not sustainable in law.
4. On the face of it, the solitary argument, raised by the learned counsel, is misdirected and unfounded. Bare perusal of section 12 of Ordinance XLVI of 2001, manifests that the learned Judge Banking Court has been empowered to set aside the ex parte decree upon such terms as to costs, deposit in cash or furnishing of security. For ready reference the relevant portion of section 12 of Ordinance XLVI of 2001, is reproduced below:-- S.12. "The Court shall make an order setting aside the decree against him upon such terms as to costs, deposit in cash or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order."
' It flows from the above provision of law that the learned Banking Court shall make an order setting aside the decree upon the terms of payment of costs, or deposit in cash or furnishing of security. To our mind, the words i,e, "deposit in cash" or "furnishing of security" relate to the suit amount or any portion thereof at the discretion of the learned Judge Banking Court. We are of the view that if a case is covered under section 12 of the Ordinance XLVI of 2001, then the Banking Court shall set aside the decree, subject to the conditions mentioned in the said provision within the discretion of learned Judge Banking Court, who is also empowered to order for the deposit of amount in cash.
We are of the view that the only discretion, which has been conferred upon the learned Banking Court in this regard, is either to order for the deposit of cash or furnishing of security in respect of the whole of the suit amount or a portion thereof. In the instant case, we find that the learned Judge Banking Court, in exercise of its discretionary powers, has restrained himself from directing the appellant to deposit the suit amount in cash and has ordered the appellant to furnish the security equal to the suit amount. We feel that under the present set of circumstances the learned Judge Banking Court has taken a lenient view, otherwise he was within his powers to direct the appellant to deposit the suit amount or a portion thereof in cash. The argument of the learned counsel is amply nullified from the bare perusal of section 12 of Ordinance XLVI of 2001, as reproduced above, which duly empowers the learned Banking Court to set aside the decree upon the terms of costs or to impose the condition to deposit in cash or furnishing as security, as the case may be.
5. Upon the examination of the impugned order, we find that the learned Judge Banking Court in exercise of his discretionary powers, has imposed the condition of furnishing the security upon the appellant and subject to the said condition the decree has been set aside. We are of the view that the learned Judge Banking Court has not exercised his discretionary powers in an arbitrary or perverse manner and the same have been exercised in accordance with the recognized principles governing the exercise of discretion, otherwise the learned Judge Banking Court could have directed the appellant to deposit the decretal amount in cash. In view whereof, we are not inclined to interfere in the discretionary powers exercised by the learned Judge Banking Court.
6. Now coming to the unreported case relied upon by the learned counsel for the appellant. We have minutely perused the judgment rendered by the Honourable Apex Court of the country and do not find that it has been held in the said judgment that the Banking Court is not empowered to impose any condition for setting aside the judgment and decree. It would be advantageous to reproduce the operative portion of the said judgment, which reads as follow:-- "In our opinion, learned High Court, after having concluded that the ex parte decree dated 2nd September, 1998 was passed in violation of the mandatory provisions of section 9(3) of the Act, 1997, had no authority to impose condition upon the petitioner to deposit Rs,200.000. A careful perusal of the relevant provisions of the Act, 1997 also indicates that power to impose such condition has not been conferred upon the High Court. Therefore, under these circumstances, we are of the opinion that the impugned judgment to the extent of imposing condition of depositing Rs,200,000 is not sustainable in the eye of law."
' It flows from the above, that the principle laid down by the Honourable Supreme Court is that under the given circumstances, provisions of Act, 1997 do not empower High Court to impose such condition. We are of the view that the said judgment is not applicable to the facts of the present case, inasmuch as in the instant case, the condition was imposed by the learned Judge Banking Court, while, in the aforesaid judgment the High Court imposed the condition, which condition was held to be not sustainable in law. It was never declared in the aforesaid judgment by the Honourable Supreme Court of Pakistan that the Banking Court is not empowered to impose any condition. Furthermore, in the aforenoted unreported judgment, it has been held that when the High Court has concluded that the ex parte decree was in violation of mandatory provisions of law, then it had no authority to impose the condition upon the petitioner to deposit Rs,200,000 while in the present case, the learned Judge Banking Court did not come to the conclusion' that the decree was passed in violation of the mandatory provisions of law but the same was set aside only on the concession given by the respondent-Bank to the effect that it has no objection if the ex parte judgment is set aside, subject to the furnishing of security of the decretal amount. Another distinguishing feature is that in the aforesaid unreported case, the High Court imposed the condition of cash deposit, while allowing the appeal, whereas in the present case the learned Banking Court, which was although empowered to direct the appellant to deposit the decretal amount in cash, as held above, taking a lenient view directed the appellant to furnish the security.
' In the above perspective, we are constrained to hold that the reliance of the learned counsel on the said judgment is misconceived, misdirected and to say the least the said judgment was cited without minutely studying the judgment and principles laid therein, thus, the same is of no help to the appellant.
7. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed in limine.