ALI SAIN DINO METLO, J.- Appellant Mst. Sakina, a guarantor, has challenged order dated 24.9.2007 of the Banking Court No. 1, Karachi, refusing to set aside the judgment and decree passed against her and respondents Nos. 2 & 3 on 24.10.2002, in respondent No. 1's Suit-No. 842 of 2000, re Allied Bank of Pakistan v. Messrs Kazmi Corporation and others and also refusing to release her mortgaged property i.e. House No. 36, Street No. 47, Sector 11-1, North Karachi, attached in execution of the decree.
2. Briefly, on 31.5.2000, Allied Bank of Pakistan (respondent No. 1) filed the above suit against the appellant and respondents Nos. 2 & 3 for recovery of Rs. 10,802,607.88 alongwith mark-up from the date of filing the suit till recovery of the decreed amount. According to the bank, in the year 1998, Wahid Abbas Kazmi, proprietor of Messrs Kazmi Corporation (respondent No. 2), had obtained loan of rupees eight million and the appellant and the respondent No. 3 had stood his guarantors by mortgaging their properties. The principal debtor i.e. Respondent No. 2 failed to repay the loan and the bank filed the above suit against him and his guarantors i.e. The appellant and the respondent No. 3.
3. In consequence of the notices issued to the appellant and respondents Nos. 2 & 3 (defendants in the suit) by all modes, including their publication on 11.8.2000 in two leading daily newspapers, Dawn and Jang, Karachi, respondents 2 & 3 appeared, through their Advocates, before the Banking Court. However, only respondent No. 2 applied for leave to defend, which was refused to him on the ground that all the documents had been admitted and no substantial question of fact of law had been raised. On 24.10.2002, the suit was decreed for Rs. 5,532,859 with cost of fund at 8% from the date of default i.e. July, 1999 till ' realization.
4. No appeal was filed against the judgment and decree passed by the Banking Court. However, in the Execution Application, which was filed in July, 2004 and notices were again issued to all the judgment-debtors by all modes, including their publication on 10.9.2004 in the same newspapers, the appellant appeared before the Banking Court on 28.2.2005 and moved two applications one for setting aside the decree and the other for releasing her \ house attached in execution of the decree. According to her, she had not mortgaged her house and had not deposited the title documents to the respondent No. 2 in good faith. She claimed that she had come to know about the judgment and decree for the first time on 27.2.2005 i.e. Only one day before filing the two applications. However, she did not disclose the source of her knowledge.
5. The Banking Court dismissed her applications on 24.9.2007. By holding that the applications were hopelessly time-barred as she was served twice, in 2000 and 2004. Her claim that she had come to know about the decree for the first time on 27.2.2005 was not believed mainly due to the reason that she failed to disclose the source of her knowledge, In the opinion of the Court, her plea that she had simply handed over the title documents of her house to the respondent No. 2 and had not mortgaged the house, was not true and had been taken only to delay the execution proceedings.
6. No exception can be taken to the impugned order. Admittedly, the respondent No. 2 had taken the loan and did not repay it. The loan was given to him, inter alia, on the guarantee of the appellant, who had mortgaged her house by depositing the original title documents with the bank.
Her contention that she had not deposited the documents with the bank and had simply handed over the same to the respondent No. 2 is not believable, particularly when she has not disclosed for what purpose she had handed over the documents to him. Her subsequent conduct in not demanding the documents back for years together and not taking any action against him even after coming to know about the decree passed against her clearly suggests that she had mortgaged the house.
7. In her application to the Divisional Chief of the respondent No. 1, made in June, 2006 for the settlement of loan guaranteed by her, the appellant admitted that she was the guarantor and had submitted the title documents as guarantee for the repayment of the loan. Learned counsel for the appellant had himself filed copy of the application before the Banking Court on 18.9.2006 requesting the Court to give some more time to the applicant to settle the matter with the bank (respondent-No. 1).
8. Certified copies of the judgment and decree filed by the appellant with the memo of appeal show that they were obtained in December, 2002 and their photostat copies were simply got re- certified in November, 2007. This shows that the appellant had knowledge of the proceedings right from the beginning.
9. Lt will be, thus, seen that the appellant had not mortgaged her house as guarantee for the repayment of loan, which admittedly has not been re-paid, but was in the knowledge of the proceedings from the beginning. The Banking Court rightly refused to set aside the decree and release her property at such belated stage, It was for these reasons that the appeal, being meritless, was dismissed by a order passed on 29.8.2008.