' MIAN SAQIB NISAR, J.---Respondent No,5, despite being represented by an Advocate, has not appeared, therefore, he is proceeded ex parte.
2. Briefly stated the facts of the case are that respondent No,5, brought a suit for the specific performance against respondent No,2, with regard to the property, which has been mortgaged with the appellant/Bank and the bank was arrayed as defendant No,3, in the matter and during the course of the proceedings, the respondent No,2 made the following statement before the Court:-- {{URDU TEXT}} ' The above statement was accepted by the plaintiff/respondent No,5 in the following terms:-- {{URDU TEXT}} ' In pursuance of the above statements of the parties, the learned Civil Judge vide order dated 1-6- 2002, was pleased to dispose of the suit as under:--{{URDU TEXT}} ' Thereafter, the appellant/plaintiff brought a suit for the recovery against the respondents Nos.1 to 4, as also respondent No,5, being indemnifier; this suit has been decreed by the trial Court vide judgment and decree dated 18-6-2003, but only to the extent of respondents Nos.1 to 4; however, as regards respondent No,5, it has been held that he does not fall within the definition of the "customer" and his name is deleted from the array of the parties.
2-A. Learned counsel for the appellant, on the basis of the statement of respondent No,5, and the judgment and the decree of the Court, referred to above, states that as per the definition of the customer given in the Financial Institutions (Recovery of Finances) Ordinance, 2001, an indemnifier is also a "customer" and therefore, the deletion of his name from the array of the parties, has been illegally ordered by the learned Banking Court.
3. We have heard learned counsel for the appellant and considered the statement of the plaintiff/respondent No,5 in the suit for the specific performance brought by him against respondent No,2 and also the impugned judgment and decree, coupled with the definition of the word "customer" given in the Financial Institutions (Recovery of Finances) Ordinance, 2001 and find that the argument of the learned counsel for the appellant, has the substance and therefore, the order/judgment passed by the learned Banking Court, deleting the name of the respondent No,5, is not legally tenable, resultantly, this appeal is allowed and the matter is sent back to the learned Banking Court, to consider respondent No,5, as a party to the suit and to proceed in the matter afresh.