' This appeal is directed against the judgment/order, dated 4-7-2005 passed by the learned Judge Banking Court-I, Faisalabad, whereby application for setting aside the ex parte decree, dated 6-4- 2005 was dismissed.
2. Succinctly, relevant facts are that respondents filed suit for recovery of an amount of Rs,5,72,490 before the Banking Court, at Faisalabad against one Mst. Saleem Khatoon (deceased) with the allegations that she availed the loan facility of "Tractor" from it. Mst. Saleem Khatoon deceased was mother of the appellant No,1 and that of one Muhammad Nawaz Khan who was also her special attorney and has also died but was arrayed as defendant to the suit. The Banking Court concerned, issued summons to the dead defendants in terms of section-9(5) of the (Financial Institutions, Recovery of Finances) Ordinance, 2001, including citation in daily two newspapers namely "Saadat"
Urdu, Faisalabad and "The Nation" English, Lahore but nobody appeared on behalf of the defendants on the date fixed, resulting in ex parte decree, dated 6-4-2005.
3. Appellant No,1 being the only surviving heir of Mst. Saleem Khatoon (deceased), moved an application for setting aside the ex parte decree, dated 6-4-2005 but the same was dismissed by the Banking Court on 4-7-2005. The appellants, thereafter, filed instant appeal, wherein notices were issued to the respondents and they appeared through their counsel.
4. We have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, "Tractor Loan" of Rs,3,67,650 was sanctioned and availed by Mst. Saleem Khatoon, through loan agreement, slated 27-11-1993 and was disbursed to her attorney Muhammad Nawaz Khan which was secured against her land measuring 241 Kanals, 10 Marlas.
Appellant No,1 in her application for setting aside ex parte decree before the Banking Court, specifically asserted that the loanee had died and service of the appellants was not effected through any of the modes adopted and that their service was wrongly assumed by the Banking Court through citation in the newspapers which was also not legal as the newspapers picked up for this purpose were never dispatched to them and their names/addresses were not correctly printed therein. Respondents could not deny the fact that both the loanee and her special attorney had already died when they filed the suit in hand. Death of the loanee And her attorney is substantiated through their death certificates. It is also admitted by the respondents that personal service of any of the appellants was not effected thence there remained only mode of their service i,e, through citation in the newspaper. The appellants are not educated as one of them has thumb- marked the power of attorney in favour of their counsel and the others have signed it in broken Urdu which leads us to assume that English newspaper. 'The Nation" was not being read and had no circulation in Chak No, 194 G.B. Tehsil T.T. Singh, where they resided. Similarly, Urdu daily newspaper "Saadat", Faisalabad was a local newspaper and had no circulation in any other District, especially in the rural area of the other districts. The appellants hailed from rural area of District T.T. Singh and in these circumstances we could not' be persuaded to accept that service of the appellants was effected in accord an e with law, especially when the newspapers in which citations against them appeared, were not dispatched through post at their addresses. We have examined the citations published in the newspaper minutely and find that names of all the appellants were incorrectly mentioned therein. Name of appellant No,1 is Monazzam Bibi whereas she has been described in the citation as Manazza. Names of appellants Nos.2 and 3 who are heirs of deceased Muhammad Nawaz Khan were not mentioned therein.
5. The appellants are not real loanees, guarantors or mortgagors whereas they are heirs/legal representatives of the loanee/special attorney, thus they were to be substituted/impleaded in the suit with all clarity and their service should have been effected lawfully through any of the modes known to law but they were not personally served and their service through substituted means was defective, for the reasons noted above but all these matters escaped notice of the Banking Court while deciding their application.
6. For the reasons noted above, we are constrained to hold that ex parte decree was incorrectly passed without proper service of the appellants/heirs of the deceased loanee and they were illegally non-suited by dismissal of their application. This appeal and application filed by the appellant No,1 for setting aside ex parte decree, dated 6-4-2005 are simultaneously accepted by setting aside the order, dated 4-7-2005, with the result that suit filed by the respondents shall be deemed to be pending before the learned Judge, Banking Court, Faisalabad where the parties shall appear on 22-5-2006 for decision of the suit, in accordance with law. There will be no order as to costs.