MIAN SAQIB NISAR, J.---The appellants are the judgment-debtors in a suit for recovery of Rs.2,07,09,534.13, brought by the respondent-Bank, inter alia, against the' 1, alleging that they were the mortgagers of the property which was the security for the loan/financial facility, advanced to defendant No.1 of the suit. As none appeared for the defendants, they were proceeded against ex parte and accordingly a decree was passed on 12-9-1998. On 22-4-2000, the appellants moved an application under section 12(2) read with Order IX, rule 13 of C.P.C. but, subsequently, it was got amended as being under section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The appellant averred in the application, that they have not been served on the proper address. Because at the time of the institution of the suit their address was House No.73, St. No.7- C, F.10/3, Islamabad, but, they were issued notice by all the modes at the address "House No.40, Street No.30, F.8/1, Islamabad". This was the previous address of the appellants, it was in the full knowledge of the Mehran Bank (the predecessor of the respondent) as well as the respondent that the appellants' address has been changed. The respondent-Bank has contested the application, which was dismissed by learned Banking Court vide order dated 19-12-2003. The reasons given are that the appellants had been served on a proper address as this was the address which was given by the appellants to the Bank themselves at the time of obtaining financial facility. No further or new address was communicated to the respondents (Mehran Bank or the National Bank of Pakistan). Secondly, that the application is hopelessly barred by time, and that thirdly; the appellants had refused to accept service, as per report of the Courier Service.
2. Heard. According to the letters dated 1st of November, 1994 and 23-8-1997 issued to the appellant No.1 (Solat Ali) and the borrower company, by both the Banks, we are of the view that the Banks were fully aware of the change of the address which was duly communicated to them and was available on their record. Therefore, the last address of the appellants should have been provided for their service.
3. As regards the report of the Courier Service, it is stated that when the appellants were not residing on the address and this is the admitted position, that the said report is false or due to the negligence of the Courier Company, therefore, this reason cannot be sustained. For the third reason, that the application is hopelessly barred by time, it is held that in the application, the appellants have stated that they got information about the decree on 20th April, 2000 and filed the application on 22-4-2000. The learned Court below has discarded this plea simply on the ground that the name of the friend, through whom the appellants learnt about the decree and his particulars are not given. The presumption drawn on the basis of this omission is illegal and unwarranted. Because, if the chance was given to the appellants, they would have proved the above fact through the evidence. Moreover, the argument of the learned counsel for the respondent-Bank that the property was earlier attempted twice to be auctioned and on each occasion the notice was affixed at the property in question, this should had enabled the appellants to know, about the decree and, resultantly, the application after thirty days, of such affixation is beyond limitation. When asked, the learned counsel for the respondents stated that such affixations were made on 6-12-1999 and 22-1-2000. This has been controverted by the learned counsel for the appellants, who states that no affixation was ever made. Resultantly, this being a factually controversial aspect, cannot be made the basis to hold that the application is beyond limitation.
4. In view of the above, we find that question of limitation is a mixed question of law and fact and if the appellants had to be non-suited on this ground, the Court below should have enabled the parties to lead their evidence. Having not se lone, the impugned order is vitiated.
5. Therefore, we set aside the impugned order of the learned Court below and remand the matter to the learned Judge for the decision of the question of limitation after recording of the evidence of the parties. As regards the other two reasons are concerned, we are of the firm view that t hose are not sustainable and, thus, are hereby set aside The parties are directed to appear before the learned Court below on 5-7-2004 and the application of the appellants for setting aside order dated 12-9-1998, shall be decided afresh.
No order as to costs.