1. Aggrieved by the order dated 5.12.2008, whereby learned Banking Court No. II, dismissed the application filed by the appellant under Section 12(2) read with Order IX, Rule 13, C.P.C., listed appeal has been filed.
2. Heard Mr. Abdus Salam Baloch, learned counsel for the appellant, and Mr. M. Hassan Akbar, learned counsel for respondent No. 1.
3. Mr. M. Hassan Akbar, learned counsel for respondent No. 1, at the very outset raised the objections in support of impugned order that the appellant has failed to show why he had not appeared before the Banking Court No. II in suit, secondly, how he came to know about the judgment and decree passed by the Court and thirdly, that the application under Section 12(2), C.P.C. Was filed in the execution proceedings and executing Court cannot go behind the decree. He, in support of his contentions, relied upon the cases of Lai Din and another v. Muhammad Ibrahim (1993 SCM R 710), Mirza Mahmood Baig v. Mirza Ashfaq Baig (1993 MLD 640) and Ghulam Mehmood v. Hukum Khan and others (2001 M LD 366).
4. Mr. Abdus Salam Baloch, learned counsel for the appellant, in reply argued that the appellant, on having information that the respondent-Bank approached National Savings Centre, for encashment of Defence Saving Certificates, filed Suit No. 345/08 before the learned Senior Civil Judge, where the respondent-Bank appeared and filed an application under Order VII, Rule 11, C.P.C.
5. The appellant for the first time through application under Order VII, Rule, 11, C.P.C. Came to know about the judgment and decree passed by the Banking Court and thereafter immediately filed application under Section 12(2), C.P.C. It was further contended by the learned counsel for the appellant that under Ordinance, 2001, the Decree-Holder is not required to file execution application and the proceedings of the suit converted into the execution proceedings and as such his application under Section 12(2), C.P.C. Was maintainable. He further contended that sufficient material was available on record that the appellant has not deposited his Defence Saving Certificates as a security in respect of the financial facility granted to the principal borrowers, respondents Nos. 2 & 3, and in this regard he pointed of a certificate issued by the National Savings Centre annexed with their parawise comments that the officer, who attached the certificate, creating charge on his Defence Saving Certificates, was never in the employment of respondent No. 4.
6. We would not like to discuss these issues in detail as the same may affect the merits of the case and since the appellant was admittedly not served on his address, given in the memo, of plaint, but on another address notices were sent where the appellant was not residing and the appellant came to know about the proceedings when the respondent- Bank filed application under Order VII, Rule 11, C.P.C. In Suit No. 345/08. Prima facie application under Section 12(2), C.P.C. Is maintainable and the controversy, whether any fraud and misrepresentation has been made in the matter can be resolved after recording the evidence and accordingly impugned order is set aside. The Banking Court is directed to frame the issues and after recording the evidence and hearing the parties decide the same afresh.
7. We would like to make it clear that the order we have passed, will not affect judgment and decree passed against respondents Nos. 2 & 3.