' CH. MUHAMMAD TARIQ, J.---This FAO has been directed against the impugned order dated 24-1- 2007 passed by learned Judge Banking Court-1V, Lahore whereby the application filed by the appellants for setting aside the ex parte decree dated 12-10-2004 was dismissed.
2. Brief facts of the case are that Zarai Taraqiati Bank Limited (respondent) filed a suit for recovery of Rs,44,24,231 against the present appellants. After service of notices, the appellants filed an application for grant of leave to defend the suit on 14-4-2003 and the case was adjourned for 12- 10-2004. On 12-10-2004, none appeared from the appellants' side and as a consequence, learned Judge Banking Court-1V, Lahore dismissed the application of the appellants for grant of leave to defend the suit and decreed the suit of the respondent bank ex parte.
3. Feeling aggrieved, the appellants filed an application to set aside the ex parte decree which was contested by the respondent bank and vide order dated 24-1-2007, learned Judge Banking Court- 1V, Lahore dismissed the application of the appellants for setting aside the ex parte decree. Hence this FAO.
4. Learned counsel for the appellants inter alia contends that the impugned decree is against the basic principle of law that none should be condemned unheard and the matters be decided on merit. Further contends that learned Judge Banking Court has not considered the factum that the respondent has not filed reply or counter affidavit in response to the application and affidavit of the appellants for setting aside the ex parte decree, therefore, the contents of the application stand admitted. Learned counsel asserts that the learned Judge Banking Court has erred while holding that application under Order IX, Rule 13, C.P.C. Is not maintainable in view of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as Section 27 of the Ordinance ibid in no way bars the court to recall its own order passed on merit. Learned counsel for the appellants points out that if Order IX, Rule 13, C.P.C. Was not applicable, then the learned Judge Banking Court could not dismiss the PLA as it could only be done under Order IX, C.P.C. Learned counsel also avers that the application of the appellants was within stipulated time of 30 days and it could not be dismissed on the grounds of limitation, therefore, the finding of the Judge, Banking Court in this context is also incorrect.
5. Learned counsel for the appellants further contends that section 7(ii) of Financial Institutions (Recovery of Finances) Ordinance, 2001 provides that the procedure of C.P.C. Will be applicable to set aside the ex parte decree but this mandatory provision of law was ignored by the learned Judge Banking Court-IV, Lahore. In support of his contentions, learned counsel for the appellants has placed reliance on the law laid down in cases reported as 2001 CLC 1363, 2001 CLC 1363 and 2008 CLD 341. Learned counsel prays that the instant FAO be accepted, the impugned order be set aside and the matter in hand be remanded to the learned Judge Banking Court for deciding it afresh after hearing the parties.
6. Conversely, learned counsel for the respondent-bank has vehemently opposed this FAO on the grounds that according to the provisions of section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, the appellants were obliged to file an appeal and the application under Order IX, Rule 13, C.P.C. Was not proceedable. As such, the learned Judge Banking Court-IV, Lahore has rightly dismissed the application of the appellants. Learned counsel avers that the instant FAO is devoid of any merit, therefore, it be dismissed. He has placed reliance on the law laid down in case reported as 2005 CLD 927.
7. We have heard the arguments put forth by learned counsel for the parties and have also perused the record with their able assistance.
8. Perusal of record highlights that the respondent-plaintiff filed the instant suit for recovery of Rs,44,24,231 against the appellants-defendants. On 12-10-2004, none on behalf of the appellants- defendants appeared in the court despite the fact that all the defendants were served upon through notices and they had also filed their petitions for leave to defend the suit. So, the learned Judge Banking Court-1V, Lahore passed an ex parte decree on merit.
9. Perusal of record further reveals that in paras 2 and 3 of ex parte judgment and decree dated 12- 10-2004, the learned Judge Banking Court discussed the merits of the case and thus the judgment and decree dated 12-10-2004 falls within the purview of final judgment/order.
10. Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides a complete procedure for filing appeal while section 7(ii) of the Ordinance provides that a Banking Court shall in all matters with respect to which the procedure has not been provided in this Ordinance will follow the procedure laid down in the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1898.
11. Since section 22 of the Ordinance ibid provides the procedure that any person aggrieved by any judgment, decree, sentence or final order passed by a Banking Court may within a period of 30- days of such judgment, decree, sentence or final order prefer an appeal to the High Court, therefore, learned counsel for the appellants has misinterpreted the provision of section 7(ii) and section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. According to section 7 of the Ordinance, the provisions of C.P.C. Are applicable only in those cases where the Act is silent and no procedure has been laid down. While in the instant case, the learned Judge Banking, Court while passing the impugned judgment and decree discussed the merits of the case, so the impugned judgment and decree will be construed as final.
12. Application of provisions of section 7 and section 22 of the Ordinance ibid is only to be exercised after examining the record and determination of the fact as to whether the ex parte decree was passed before filing of PLA or after the filing of PLA. In the present case, the appellants-defendants were not only summoned through notices but they also appeared in the court and filed their petitions for leave to defend the suit and on the crucial date, no one from the appellants' side appeared in the court, hence the learned Judge Banking Court-IV, Lahore decided the matter ex parte on merit. In the situation, law relied upon by learned counsel for the appellants is not applicable while we are persuaded by the law laid down in the case titled, "Mst. Tahira Yasmin and others vs. Muslim Commercial Bank, and others" reported as 2005 CLD 927.
13. As a result of above discussion, we are of the firm view that the learned Judge Banking Court-IV, Lahore has rightly dismissed the application of the appellants under Order IX, Rule 13, C.P.C. No interference is called for. The FAO is devoid of any force, hence dismissed.