MAULVI ANWARUL HAQ, J.---On 9-8-2005 the respondent filed a suit against the appellant and his father Sher Muhammad for recovery of Rs.5,82,031.00. The suit was decreed ex parte by a learned Judge Banking Court-I, Faisalabad, on 20-10-2005 in the sum of Rs.5,55,160.00. The decree was passed jointly and severally against the defendants on the record. On 29-5-2006 an application was filed by the appellant for setting aside of the said ex parte decree. It was pleaded that he had never been served while the other defendant in the suit, namely, Sher Muhammad, the father of the appellant, had 'died on 4-11-2001. Regarding the newspapers, it was stated that he lives in a distant Chak where the said newspapers are not available. According to him, he came to know about the execution proceedings on 27-5-2006, when he made inquiries and came to know about the passing of the said decree. The application was also accompanied by an application under section 5 of the Limitation Act, 1908. This application was taken up by a learned Judge Banking Court-I, Faisalabad on 13-6-2006 who dismissed the same by passing the following order:-- `Preliminary arguments heard. The ground of non service of the summons urged by the counsel has no substance therefore, is rejected as such the application is dismissed. File be consigned to record."
2. Learned counsel for the appellant contends that it was reported by the Process Server on the process issued to the. Defendant No.1, namely, Sher Muhammad that on 17-10-2005 he met a nephew of the said defendant who has informed him that his uncle Sher Muhammad has died. The report on the process issued to the appellant is to the effect that he was not found at home and he met some women and a cousin who have been delivered a copy of the summons, These processes were issued for 20-10-2005. However, the learned trial Court failed to examine the records while proceeding to dismiss the application. Learned counsel for the respondent, on the other hand, contends that all modes of service were employed and that the Bank had no information that the said Sher Muhammad had died.
3. We have examined the certified copies of the records of the learned trial Court filed by the learned counsel for the appellant. We have examined the said notices and we do find that the said reports as stated by the learned counsel were made on 17-10-2005. The case came up before the learned trial Court on 20-10-2005. It was observed that the defendants have been served through publication but have not turned up and have not filed any petition for defending the suit and as such proceeded against them ex parte and passed the decree.
4. Apart from the fact that it was duly reported by the Process Server of the Court that defendant No.1 is dead while the appellant was not found and delivery of a copy to some unnamed ladies hardly constitutes a valid service. This report is dated 17-10-2005. The case was taken up on 20-10- 2005. Under section 10(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the application for leave to defend is to be filed within 30 days of the date of first service by any one of the said modes. The learned trial Court has not cared to mention any such date of service. The said report on the process is dated 17-10-2005. This means even if it be deemed that the defendant No.1 was alive and further that there was a due service of the said process on 17-10-2005, the defendants in the suit had 30 days to file the application for leave to defend. On 20-10-2005 when the learned trial Court passed the said decree, still 27 days were available to the said defendants to file the application for leave to defend. Thus, from whatever angle seen the said ex parte decree is wholly without jurisdiction.
5. So far as the impugned order is concerned, the learned trial Judge has acted in the matter with the same unholy haste with which he acted while passing the ex parte decree. He did not even read the application wherein it was mentioned that the first defendant had died and the second defendant has not been served. It is but obvious that he has not cared even to read his own record while dismissing the application. We have found above that the ex parte decree was passed without lawful authority. This FAO is accordingly allowed and the impugned order dated 13-6-2006 as well as the ex parte decree 'dated 20-10-2005 is set aside. The result would be that the suit filed by the respondent-Bank shall be deemed to be pending. The learned counsel for the appellant present in Court has been directed that the appellant shall file an application for leave to defend in the Court of learned Judge, Banking Court-I, Faisalabad, within 10 days from today. So far as the deceased defendant is concerned, the respondent-Bank shall take steps, if deemed necessary for bringing on record his I...Rs. No orders as to costs.
6. A copy of this judgment be immediately remitted to the learned Judge, Banking Court-I, Faisalabad.