' SHAHID KARIM, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 raises a challenge to the order dated 30.10.2014 passed by the Banking Court-III, Lahore. By the impugned order, the application under section 12 of the Ordinance, 2001 for setting aside the ex-pane judgment and decree dated 12.12.2009 was dismissed.
2. A judgment and decree was passed on 12.12.2009 and the said judgment and decree was ex parte against the appellant who, according to the Banking Court, was duly served. An application under section 12 of the Ordinance, 2001 was filed which was dismissed vide the impugned order.
3. We have heard the learned counsel for the parties and do not find the impugned order to be sustainable. The only ground which weighed with the Banking Court in dismissing the application for setting aside the ex parte judgment and decree was premised on the presumption that the appellant was aware of the entire proceedings, throughout. This was despite the clear stance of the appellant that the appellant's relation with her mother and her siblings were strained and that she had shifted to Karachi after her marriage. The Banking Court referred to the proceedings initiated by the appellant's mother and brothers with regard to the setting aside of the ex parte judgment and decree and their objections against the auction of the properties before the Banking Court as also before this Court in appeal. However, no proceedings were taken by the appellant with regard thereto and the reliance of the Banking Court on the proceedings set in motion by the appellant's mother and brothers can hardly form a basis for raising a presumption in favour of the fact that the appellant was aware of the proceedings throughout. With regard to the service on the appellant, suffice to say that the publication should be made in one English language and one Urdu language daily newspaper. However, it is not denied that the publication was only made in one English language newspaper and no publication in Urdu language daily newspaper was effected. Personal service on the appellant was admittedly not made. However, the service was made through a affixation and according to the learned counsel for the appellant, in case of service through an affixation of the summons at the last known address of a person sought to be served, there are procedural formalities which ought to be complied and which have gone abegging in this case. Be that as it may, the Banking Court based its decision on an incorrect view of the facts and did not take into account the contention of the appellant that the property purportedly mortgaged in favour of the financial institution was a forged document and serious objection had been taken by the appellant to the said document precisely on the ground that the property had devolved on the appellant in the year 2009 whereas the document of mortgage was earlier in time. Since the document had been denied to be executed by the appellant, there was no question that the onus was on the appellant to have brought forth facts with regard to change of address. Since the appellant had denied the execution of the charge document, it was otiose to allege that she had not indicated regarding the change of address to the financial institution.
4. In view of the above, the appeal is allowed and the judgment and decree to the extent of the appellant is hereby set aside. The appellant shall be permitted to file an application for leave to defend within the stipulated period commencing from the order of this Court and the Banking Court shall thereafter proceed to determine that application in accordance with law with a period of two months from the order of this Court.