' Present appeal, filed by the appellant/defendant No,3, proceeds against order, dated 7-9-2005, whereby the learned Judge, Banking Court dismissed his application seeking setting aside ex parte judgment and decree dated 25-6-2003.
2. Respondent-Corporation filed the suit for recovery of Rs,18,74,030 against the appellant and respondents Nos.2 to 6, before the learned Judge Banking Court. The summons were issued to all the defendants through all the modes of service, prescribed under section 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001. None of the defendants, including the appellant, filed the application seeking leave to defend the suit. Ultimately, the learned Judge Banking Court, after finding that summons were issued in accordance with law; publication in two newspapers has also been affected and no leave application has been filed, proceeded to pass the ex parte decree for the recovery of Rs,14,42,029 with costs and costs of funds, vide judgment and decree, dated 25-6-2003. Pursuant thereto the decree-holder initiated execution proceedings.
The appellant, on 15-2-2005, filed the application under Order IX, rule 13 and section 12(2), C.P.C., for setting aside ex parte decree, dated 25-6-2003, inter alia, pleading that he never availed the loan facility; he was neither a surety nor mortgagor, he did not execute any documents and that he was not served, as he had left his earlier abode and shifted to a new residence, where no notice was sent. The application was resisted by the respondent-Corporation, through filing the written reply, and the learned Judge Banking Court, after dealing with all the pleas raised by the appellant, dismissed appellant's application, vide impugned order, dated 7-9-2005, hence the present appeal.
3. Learned counsel for the appellant has contended that the appellant did not avail loan facility; he did not execute any of the documents, attributed to him, and that at the time of institution of the suit, he was not residing at the address given in the plaint. He has added that the appellant was not properly served. Conversely, the learned counsel for the respondents has submitted that the learned Judge Banking Court issued summons to all the defendants, as envisaged under section 9(5) of the Ordinance, 2001, and, therefore, he was legally served. He has added that if at all the appellants shifted to new place of residence, he did not inform the Bank about his new address.
4. We have heard the learned counsel for the parties and examined the available record. When the plaint was presented before the learned Judge Banking Court, he ordered for the issuance of summons, to all the defendants, under section 9(5) of Ordinance, 2001, through registered A.D.
Counter service and proclamation in two daily newspapers, one in English language and one in Urdu language ("Dawn" and "Jurrat"). Registered envelopes were returned by the postal authorities with the refusal report. The proclamation was duly made in afore-stated two daily newspapers as is evident from the available record. Under the law, service duly effected in any of the modes, provided in section 9(5) of the Ordinance, shall be deemed to be a valid service for the purpose of the Ordinance. Despite that the appellant choose to remain absent and failed to file the application for leave to defend the suit, therefore, the learned Judge Banking Court, rightly, decreed respondent's suit. It is important to note here that the appellant did not file the application under section 12 of the Ordinance, 2001 and choose to institute the same under Order IX, rule 13, C.P.C.
Read with section 12(2), C.P.C., that too after the lapse of nearly one year and eight months, which was, on the face of it, barred by time. The learned counsel for the appellant, before us, could not explain as to why the appellant, despite service through newspapers, did not file the application for leave to defend the suit, except to state that he shifted to a new residence and abandoned his earlier abode. Admittedly, the appellant did not provide new address to the respondent-Bank, which was in the knowledge of earlier address of the appellant. The respondent-Bank sued the appellant on the address available with them on which the process was issued. It has duly 'been noted by the learned Judge Banking Court that the summons were issued at the address, given by the appellant in his I.D. Card.
5. We have examined the impugned order and find that the learned Judge Banking Court has dealt with the grounds raised by the appellant in his application. As regards service of the appellant, the findings of the learned Judge are not open to exception. It appears appropriate to reproduce concluding para. Of the impugned order, which really cliches the matter and reads as follows:-- ' The answering defendant Tahir Mobeen was served upon under section 9(5) accordingly, but he did not appear in Court like other defendants nor filed any application for leave to defend the suit.
The defendants including the applicant were proceeded against ex parte and ex parte decree was passed against them. The present applicant applied for setting aside ex parte decree against him and his companion when warrants of arrest were issued. Process under section 9(5) were issued against the applicant on the address given by him on his I.D. Card. He 'has also himself admitted in his petition that the process were issued against him on his old Mohallah address, meaning thereby that he had been residing there and he if he had at all changed his residence did not convey his fresh address to the plaintiff-Corporation. In the circumstances, the plaintiff- Corporation was justified to get process under section 9(5) of FIO issued on his address available to it and provided by the defendant himself to the plaintiff-Corporation. The applicant has also stated that he came to know of the suit when his father went to his old house through Tariq Mehmood and Muhammad Rafiq but no affidavit to this effect of these persons has been attached to support his assertion. It has not been pointed out that as to how the suit is bad for misjoinder and non-joinder of necessary parties and as to how the plaintiff/corporation has no cause of action and locus standi to file the present suit against the answering defendant. He also failed to point out as to how impugned judgment and decree have been obtained fraudulently against the defendants. No other point was raised during arguments on behalf of the defendant. It is notable that the applicant has not deposited the decretal amount in Court nor furnished security for its payment as required under Order XXI, rule 23-A, C.P.C. Before filing of the present application and thus it is not maintainable under the law. In the circumstances, the impugned judgment and decree have been passed against the answering defendant properly, justly and in accordance with law.
' The result of the foregoing is that the application for setting aside ex parte decree is dismissed with costs."
6. In view of the above, we are of the view that the learned Judge Banking Court, while dismissing appellant's application, proceeded in the right 'direction, the impugned order does not suffer from any illegality and, thus, we are not persuaded to interfere in the impugned order, which is hereby maintained.
7. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs.