KHADIM HUSSAIN M. SHAIKH, J.---Through the captioned Constitutional Petition, the petitioner has called in question order dated 10.10.2013, passed by learned Banking Court-I, Sukkur, dismissing application under section 12(2) Code 'of Civil Procedure, 1908. (hereinafter will be referred to as the Code) read with section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the Ordinance), filed by petitioner Mst. Majeeda Begum, praying for setting aside, the judgment dated 12.11.2009 and decree dated 15.11.2009, passed by the learned Banking Court-I, Sukkur, decreeing Suit No.54 of 2009 against Rehmat Ali (deceased husband of petitioner Mst. Majeeda Begum) and another jointly and severally for Rs.4,03,173-71 ps. including markup at the agreed rate and costs of funds to be determined under section 3(2) of the Ordinance, disallowing the liquidated damages.
2. Briefly the facts of the case are that Rehmat Ali, the husband of the petitioner, availed of the finance facility of Rs.500.000/- for establishment of his business in the name and style of M/s. Waqar Autos, which was allowed and disbursed to him by the respondent-bank as per sanction advice dated 16.12.2006 and one Sher Muhammad had stood guarantor of Rehmat Ali for repayment of the finance liability and they both signed, executed and delivered the documents namely Agreement for Finance, Promissory Note, Guarantee Letter, Memorandum of Deposit of Title Deeds, Letter of Hypothecation, Mortgage Deed, Sale Deed, Deh Form-II, Certificates in respect of the property/house, Undertaking, Letter of Authority, Stock Letter. NIC, Valuation Report and Application etc. in favour of the respondent-bank. As the defendants Rehmat Ali and another failed to repay- the entire aforementioned finance liability, leaving the balance amount of Rs.4,03,173-71 ps. as outstanding against them, hence the respondent-bank filed the aforementioned suit on 28.04.2009 for recovery of Rs.4,03,173-71 ps.
3. The summonses were issued against defendants Rehmat Ali and Sher Muhammad through all modes of service and service against them was held good, but they failed to appear and/or to file application for leave to defend the suit and thus the aforementioned suit was ordered to proceed ex parte vide order dated 17.10.2009, and ultimately the suit was decreed for Rs.4,03,173-71 ps. vide judgment dated 12.11.2009 and decree dated 15.11.2009, passed by the learned Banking Court-I, Sukkur. However, after the appeal period i.e. on 18.12.2009, the proceedings of the suit were converted into execution proceedings being Execution Application No. 62 of 2009.
4. Petitioner Mst. Majeeda Begum widow of Rehmat Ali, one of the legal representatives of judgment debtor No.1 Rehmat Ali filed an application under section 12(2) of the Code, read with section 12 of the Ordinance, praying for setting-aside the aforementioned judgment and decree, stating that the same were obtained by misrepresentation and fraud. The learned Banking Court-I, Sukkur after hearing the parties' counsel dismissed the aforesaid application vide order dated 10.10.2013, hence the petitioner has filed the present Constitutional Petition with the following prayers:- (a)To call for R & Ps of Suit No: 54/2009 and Execution Application No. 62/2009 from respondent No.1 and after examining the legality, propriety and correctness of procedural and vital defects set aside the Judgment dated 12.11.2009 and Decree dated 15.11.2009 and Declare the same as based on fraud hence of no legal effect and dismiss the suit.
(b)To declare the Order dated 10.10.2013 passed by respondent No.1 as illegal and of no legal effect which is based on misreading of evidence/defence and illegal interpretation of legal Provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
(c) To pass an ad-interim Injunction whereby respondents Nos. 1 and 2 may be restrained not to take coercive action on the basis of Decree obtained by Fraud till disposal of this Petition.
(d) To grant Costs of the Petition.
(e) To award any other relief as deemed fit and proper under the circumstances of case.
5. The learned advocate for the petitioner has mainly contended that the petitioner Mst. Majeeda Begum widow of Rehmat Ali is one of the legal representatives of deceased Rehmat Ali, who expired on 03.09.2009; that said Rehmat Ali, was running business of Auto Spare Parts in the name and style of M/s. Waciar Autos, Old National Highway, Obawro and was customer of the respondent-bank; that the respondent-bank authorities with mala fide intention filed the aforesaid suit against the petitioner's husband Rehmat Ali and another, which was ultimately decreed without the knowledge of the petitioner; that the petitioner's husband Rehmat Ali suddenly fell ill, resulting him heavy loss in his business and he also spent huge amount on his treatment and due to financial crisis he could not be able to repay the finance liability: that the judgment and decree were obtained by the respondent-bank authorities by misrepresentation and fraud against Rehmat Ali, who died during the pendency of the suit; and, that the learned Banking Court-I, Sukkur has dismissed the application under section 12(2) of the Code read with section 12 of the Ordinance, vide order dated 10.10.2013, which, per him, is illegal. He, therefore, prays that the impugned judgment dated 12.11.2009 and decree dated 15.11.2009 and order dated 10.10.2013, passed by the learned Banking Court-I, Sukkur may be set aside, allowing this petition.
6. The learned advocate for respondent-bank has mainly contended that customer Rehmat Ali, the husband of the petitioner, had availed of the finance facilities, but he failed to repay the same, hence the aforementioned suit was filed by the respondent-bank; that the learned Banking Court-I, Sukkur vide impugned judgment dated 12.11.2009 and decree dated 15.11.2009 after considering the material placed before it, decreed the suit, which on expiry of the appeal period was converted into execution proceedings; that the- judgment and decree, passed by the learned Banking Court, attained finality; that the learned Banking Court, after hearing the parties' counsel, has rightly dismissed the aforesaid application, filed by the petitioner vide order dated 10.10.2013, which, per him, does not call for any interference. He, therefore. prays that the instant petition may be dismissed.
7. We have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
8. Since the petitioner filed an application under section 12 of the Ordinance read with section 12(2) of the Code before the learned Banking Court, seeking setting aside the judgment and decree, passed by the learned Banking Court, instead of availing the remedy of appeal, hence before proceeding ahead, it would be advantageous to reproduce here both the aforesaid sections for sake of convenience:- Section 12 of the Ordinance "12. Power to set aside decree. In any case in which a decree is passed against a defendant under subsection (1) of section 10 he may, within twenty-one days of the date of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order to set it aside; and if he satisfies the Baking Court that he was prevented by sufficient cause from making an application under section 10, or that the summons was not duly served, the Court shall make an order setting aside the decree against him upon such terms as to costs, deposit in cash or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order.
Section 12(2) of the Code
12. Bar to further suit.--(1)......................
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want ..of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
9. From plain reading of the aforementioned provisions of law it would be seen that both the provisions are independent and remedy provided under these provisions of law are different from each other, for section t2 of the Ordinance provides that in case in which a decree is passed against a defendant, he may, within 21 days of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order to set it aside; and, if he satisfies the Banking Court that he was prevented for sufficient cause from making an application under section 10 of thy Ordinance, the Court shall make an order setting-aside the decree against him and whereas, under section 12(2) of the Code, the validity of a judgment, decree or order can be challenged on the ground that the same were obtained by misrepresentation or fraud or that the Court passing the judgment, decree or order had no jurisdiction i.e. for want of jurisdiction. Record reflects that the aforesaid application was filed by the petitioner before the learned Banking Court on 03.09.2010 i.e. after 10 months of the judgment and decree which were passed on 12.11.2009 and 15.11.2009 respectively. From a perusal of the subject application and its supporting affidavit it would be seen that the petitioner has not stated anywhere therein that as to when she first time came to know about the aforementioned judgment and decree passed by the Banking Court. Moreover, the case of the petitioner is that the defendant No.1 namely Rehmat Ali, who was her husband, had died on 03.09.2009 per Death Certificate, shown to have been annexed as annexure D-1 with the application before the Banking Court, but the petitioner did not bother to place on record of this court, the copy of the alleged death certificate of J.D. Rehmat Ali. Even otherwise, the contention of the petitioner that her husband had died pending disposal of the suit and the decree was passed without impleading his legal heirs, will not be helpful for the petitioner, for admittedly the application for leave to defend-cum-written statement, had not been filed by any of the defendants, who were proceeded ex parte and ultimately the learned Banking Court, passed the aforementioned judgment and decree as non-impleading legal representatives in this case would not result in abatement but the Court was obliged to proceed with the trial of the suit even in the absence of the legal representatives, and to make any order or pronounce final judgment, which despite the death of defendant Rehmat Ali, shall have the same force and effect as if it had been pronounced before his death took place as the deceased defendant had failed to file application for leave to defend-cum-written statement and was proceeded against ex parte, therefore, it was not necessary to substitute his legal representatives in view of sub-rule (4), added to rule 4 of Order XXII in the Code by amendment through Ordinance XII of. 1972 which for the sake of convenience and ready reference is reproduced below:- Rule 4 of Order XXII of the Code
4. Procedure in case of death of one of several defendants or of sole defendant.--(1)
(2) .......................
3)......................
4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place.] Reference can be made to the case of Khushi Muhammad v. Mst. Adz Bibi (PLD 1988 SC 259) wherein the Hon'ble Supreme Court of Pakistan has held:- "The provisions of the Civil Procedure Code, after the amendments made by the Law Reforms Ordinance, 1972, have materially altered the results, events, remaining the same. Thus where within the time allowed application is not made to bring on record the legal representatives of the deceased plaintiff "the court may proceed with the suit and any order made or judgment pronounced in such suit shall notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place" (Rule 3(2) of Order XXII, C. P.C.) Where defendant dies it is provided (sub-rule (4) of rule ibid). "It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing, and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place." and in the case of Mst. Sakina Bibi v. Muhammad Nawaz and 3 others (2000 SCM R 1051), the Hon'ble Supreme Court of Pakistan has held that:- "the petitioner Mst. Sakina never got herself impleaded as a party in the main proceedings on the death of her father Siraj Din. The law governing such a situation is contained in Order XXII, rule 4, C.P.C., which makes it clear that if the legal representative of any defendant, who fails to file written statement or does not opt to contest the suit, the judgment pronounced against the said deceased shall have the same force and effect as if it had been pronounced before his death."
10. Admittedly defendant Rehmat Ali had died after institution of the suit; no application for leave to defend-cum-written statement was filed by him and he was ordered to proceed ex parte. Thus, in our humble view the contention taken by the learned counsel for the petitioner for setting aside the judgment and decree passed by the Banking Court that defendant Rehmat Ali having died during pendency of the suit and the impugned and decree ought not to have been passed by the learned Banking Court without impleading legal representatives of deceased defendant Rehmat Ali is patently misconceived and the same could hardly be a ground for setting-aside the judgment and decree passed by the Banking Court. Moreover, there is nothing available on the record to suggest that the decree was obtained by misrepresentation or fraud and there is also no question of jurisdictional defect in the impugned order dated 10.10.2013 passed by the learned Banking Court and thus ex-facie no misrepresentation or fraud could be inferred and thus the ingredients for attracting section 12(2) of the Code are also completely lacking in this case. Manifestly, the application under section 12 of the Ordinance read with section 12(2) of the Code was filed by the petitioner to protract the execution of proceedings and to delay the satisfaction of the decree as long as she could otherwise there seems to be no justification for filing such application and then this petition. The learned counsel for the petitioner has also not been able to point out any illegality and jurisdictional defect in the impugned order dated 10.10.2013 passed by Banking Court, dismissing the aforementioned application, attracting exercise of jurisdiction by this Court.
11. Furthermore, the remedy of appeal against the judgment and decree, passed by the Banking Court, in a suit, is provided under section 22 of the Ordinance, which reads as under:- "22. Appeal. (1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.
(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo mow or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant:"
12. A plain reading of the above provisions of law reveals that subsection (1) of section 22 of the Ordinance provides period of thirty days for filing the appeal by any person aggrieved by any judgment, decree, sentence, or final order, passed by a Banking Court, to the High Court. This petition against the impugned order dated 10.10.2013, passed by the Banking Court, dismissing application under section 12(2) of the Code read with section 12 of the Ordinance, which from its nature, is a final order, filed on 23.11.2013 i.e. after 44 days, also appears to be not maintainable.
13. In view of what has been discussed above, we are of the considered view that the petition is liable to be dismissed.
14. Foregoing are the reasons of the short order announced by us on 29.09.2016, whereby this petition was dismissed with no order as to costs along with the listed application.