' Present appeal, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against judgment and decree dated 27-9-2005, whereby the learned Judge Banking Court, after dismissing "an" application for leave to defend the suit, proceeded to pass a decree for recovery of Rs,65,88,289.22 (excluding mark-up of Rs,681,268.66 for cushion period), against the appellants and respondents Nos.2 to 4 along with costs and costs of funds.
2. The respondent-Bank filed the suit for recovery of Rs,7.789 million along with mark-up and costs, against the appellants and respondents Nos.2 to 4, before the learned Judge Banking Court. The application for leave to defend the suit was filed, on 21-1-2003, on behalf of the appellants and respondents Nos.3 and 4 (defendants Nos.2 to 6) through Nadeem Mahmood Mian, Advocate.
Subsequently, on 15-2-2003, the appellants filed another application, through Aish Bahadur Rana, Advocate, seeking leave to defend the suit, inter alia, pleading that the first application was not filed by them as they did not engage any counsel. There is yet another application on record, filed on 30-5-2005, through Abdul Majid, Advocate, by respondents Nos.2 to 4 and appellant No,2 (defendants Nos.1 to 4), inter alia, praying for the grant of leave to defend the suit. All the said applications were contested by the respondent-Bank, who filed the replies. The learned Judge Banking Court, in the ultimate analysis, dismissed "an application" for leave to defend the suit, filed on behalf of defendants Nos.2 to 6, and consequently passed a decree for recovery of Rs,65,88,289.22 (excluding mark-up of Rs,681,268.66 for cushion period), against the appellants and respondents Nos. 2 to 4 along with costs and costs of funds, vide impugned judgment and decree dated 27-9-2005, hence the present appeal.
3. Learned counsel for the appellants contends that although various sets of defendants filed different applications for leave to defend the suit and those were entertained and replied to by the respondent-Bank, yet the learned Banking Court decided only one application and thus the other two applications are deemed to be pending, therefore, the impugned judgment and decree is not sustainable. The learned counsel for the respondent-Bank, firstly, tried to defend the decree, however, when confronted with the legal position, stated that he has no objection for setting aside the ex parte decree only against the appellants, however, his contention is that as respondents Nos.2 to 4 did not file any appeal neither they submitted any cross-objections against the impugned decree, therefore, the decree against them deserves to be maintained. Learned counsel for respondents Nos.2 to 4 has supported the appellants and prayed for setting aside the decree in totality.
4. We have heard the learned counsel and examined the available record. As regards the case of the appellants, admittedly, their application for leave to defend the suit was not decided and the learned Banking Court, in complete oblivion of the record of the case, has passed the decree against them as well without deciding all the leave applications. There is no cavil to the proposition that during the pendency of the leave application, the suit could not be decreed and I he learned Judge Banking Court is under a legal obligation to decide the pending leave applications and thereafter to proceed with the suit. It is established on record that only one application was decided by the learned Judge Banking Court. The appellants have thus been condemned unheard, inasmuch as their application, was not at all considered. To our mind other two applications are still deemed to be pending and the impugned decree during the pendency of those applications is nullity under the law. In the above perspective coupled with the concession of the learned counsel for the respondent No,1, we are persuaded to accept the appeal and set aside the impugned decree.
5. Now the question arises as to whether the decree is to be set aside only qua the appellants or also in respect of respondents Nos.2 to 4, who did not, admittedly, file the appeal or cross-objection against the impugned decree. It appears that respondents Nos.2 to 4 felt contended and failed to file any appeal or cross-objection and thus the obvious conclusion is that they have acquiesced over the decree and their case is clearly passed and closed. There cannot be two opinions that a decree cannot be varied unless there is an appeal or cross-objection and if a party does not go in appeal or file cross-objections, the decree passed against him becomes final. In the said background we are not persuaded to reverse if e decree as a whole, however, as noted above, we are inclined to set it aside only against the appellants.
6. In the above perspective, the present appeal is allowed and the impugned judgment and decree dated 27-9-2005, only against the appellants, is set aside. Resultantly, respondent No, l's suit and two leave applications, as noted above, shall be deemed to be pending before the learned Judge Banking Court, who shall decide those applications and then the suit, after hearing the parties and of course in accordance with law within a period of three months from today.