' ATTAULLAH KHAN, J.--- This appeal filed by the appellant Sheikh Salahuddin under section 22 of the Financial Institution (Recovery of Finances) Ordinance 2001 is directed against the order dated 16-2-2006 passed by the learned Judge, Banking Court-II Camp at D.I. Khan vide which the objection petition of the appellant was dismissed in default and the auction of the mortgage property was confirmed.
2. Briefly stated the facts are that the respondent-Bank filed a suit for recovery of Rs,3,63,705 due against the appellant as financial facility availed by him on credit basis and to that effect an agreement was executed between the parties, according to which the appellant promised to pay the purchase price including mark-up and in case of failure to deposit the amount, the Bank was declared to be entitled to demand immediately the entire amount due. Since the appellant committed default for five monthly instalments, therefore, the Bank demanded the entire amount in lump sum. To secure, a mortgage deed was also executed between the parties. After the default, the suit was filed which was contested by the appellant by filing application for leave to defend.
3. After hearing arguments, the suit was decreed against the appellant vide judgment and decree, dated 7-4-2004.The proceedings were converted into execution proceedings and the matter was further processed. During the process of execution, the Court ordered the auction of the mortgaged property. Auction was conducted and the Auctioneer submitted auction report as would be shown from order sheet dated 10-2-2005.The judgment-debtor/appellant filed objection petition in the trial Court and the case was fixed for reply to that objection petition. The Court directed for submission of objection, if any, regarding the auction report. The proceedings were processed and on 16-2-2006, the appellant/judgmentdebtor was absent, therefore, proceeded ex parte and the objection petition was dismissed in default.
4. It is against the above order that the appeal in hand has been preferred.
5. Learned counsel for the appellant argued that appeal against the order has been filed on 15-3- 2006 which is within time. He further argued that on that date his junior was present in the Court but his presence was not noted by the learned Judge and thus the objection petition of the appellant was dismissed in default. To this effect, an affidavit dated 15-3-2006 has also been filed which reveals that one Syed Amir Abbas Advocate appeared on the crucial date before the learned Judge Banking Court-II Camp at D.I. Khan as a proxy for Syed Abid Hussain Bukhari, advocate for the Judgment-debtor/appellant. According to the affidavit, he appeared and requested the Court for adjournment but his presence was not marked and the matter was decided in the absence of the judgmentdebtor/appellant and his counsel. The learned counsel submitted that the absence of the appellant and his counsel was not intentional and in fact they were represented by Syed Amir Abbas Advocate and to that effect affidavit is on file and there is no counter-affidavit on the part of the respondent-bank to rebut the same.
6. The affidavit mentioned above proved that another counsel had represented the counsel for the appellant on the crucial date. The affidavit has not been controverted or rebutted because no counter-affidavit has been filed by the respondents, therefore, we have no option but to accept the affidavit and if the affidavit is accepted, it means that the appellant was represented by another counsel.
7. In this view of the matter, the Court could not proceed against the appellant.
8. Moreover, the objection petition filed by the appellant in the trial Court contained substantial objection against the auction conducted by the auctioneer, therefore, its decision is necessary and on technical ground, the appellant cannot be deprived of opportunity to represent his case.
9. The nutshell of the above discussion is that the appeal succeeds which is accordingly accepted as prayed for and the impugned order is set aside. The learned Judge Banking Court-II Peshawar Camp at D.I. Khan is directed to decide the objection petition of the appellant within three months after receipt of case file which shall be sent back there forthwith.