This appeal is directed. Against the order dated 10.6.2004 passed by the Banking Court No. 1, Karachi whereby an application under Section 12(2), CPC filed by the appellant was dismissed.
2. Brief facts enumerated hereunder are that the respondent filed a Suit No. 30/1983 (New. No. 685/2001) in the High Court of Sindh for recovery of Rs. 4,33,100/- against the Bank, stating therein that she had received a; statement from bank in which credit shown on 13-1-1980 was nil though the credit balance ought to have been Rs. 3,05,000/-. During the pendency of the case the appellant filed written statement subsequently suit was transferred for want of pecuniary jurisdiction to the Court of Vth Senior Civil Judge (South) at Karachi in the year 1996. On 17,10.2001 the plaint was returned to the respondent for presentation to the proper Court by the Senior Civil Judge in the year 2001. The respondent presented the suit in Banking Court No. 1, Karachi and after requisite, compliance suit was proceeded against the appellant ex parte, subsequently decreed in favour of the respondent vide judgment dated L9.2003. The respondent decree-holder filed Execution Application No. 68/2003. The appellant bank was directed to deposit . Rs. 3,0, 000/- in the Banking Court which was complied with. During this span appellant filed an application under Section 12(2) of the Code of Civil Procedure. The Advocate for the respondent filed an application under Section 151, CPC whereby the Banking Court ordered the original documents filed in Suit No. 30/1983 be summoned. Later the Banking Court withdrew his order settled the issues. Since no one appeared on behalf of the appellant suit was decreed. During the course of execution proceedings appellant filed an application under Section 12(2) of Code of Civil Procedure.
3. We have heard learned counsel appearing for the appellant. Learned Banking Court has decreed the suit of the respondent bearing No. 685/2001 which was challenged by the appellant under Section 12(2) of CPC on the basis that originally the suit was suit in Sindh High Court later transferred to Vth Senior Civil Judge, Karachi South in the year 1996 on the point of jurisdiction it was transferred to the Banking Court on 17.10.2001. The respondent was an account holder in the Bank allegedly he had deposited certain amounts which were embezzled, It is next urged that Banking Court had jurisdiction to try suits falling between Customer and Financial Institution, in default of fulfillment of an obligation with regard to finance. The question of opening and maintaining account does not fall within the ambit of finance as described in Financial Institutions (Recovery of Finances) Ordinance, 2001 therefore, there was no justification on the part of the Civil Court to transfer the suit to the Banking-Court thereby fraud and misrepresentation had been played upon the Bank, by procuring a judgment without being resorting to proper jurisdiction, the same is corram-non-judice, without lawful authority and of no legal effect, It appears from the record that at one stage of the case on 10.4.2003. Mr. Zia Qureshi, Advocate had appeared for appellant before the learned Banking Court did to resist the execution proceedings nor any appeal was preferred against the impugned judgment and decree within the prescribed law. We are conscious of this aspect that Section 12(2), CPC can only be imported when. There is misrepresentation, fraud played upon the Court or upon a party in the legal proceedings for non- adherence to the proper jurisdiction which is missing in the present case, In view of the above the impugned order is set aside, case is remanded back to the Trial Court f for fresh adjudication of application under Section 12(2), CPC after due notice to respondent.
Appeal stands disposed off in above terms with no order as to cost.