ABID AZIZ SHEIKH, J.---This judgment will also decide F.A.O. No.46548/2019 as similar question of law and facts are raised in both these appeals. These appeals are directed under section 22 of the Financial institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) against two separate orders of even date 27.6.2019 passed by learned Judge Banking Court No. II, Faisalabad (herein after referred to as impugned orders).
2. Relevant facts which are common in both these appeals are that respondent bank filed two separate suits for recovery against the appellants on 21.1.2013. In pursuant to summons under section 9(5) of the Ordinance, the appellants filed petitions for leave to defend the suits (PLAs). The said PLAs were replied by the respondent batik, however, during the proceedings, the appellants were proceeded against ex-parte on 04.1.2017. Subsequently, PLAs were not dismissed for non- prosecution rather decided on merits through two separate ex-parte judgments and decrees dated 08.2.2017. The appellants being aggrieved filed applications for setting aside ex-parte judgments and decrees, however, the same were dismissed through impugned order dated 27.6.2019, hence these appeals.
3. Learned counsel for the appellants though reiterated the grounds raised in the appeals, however also submits that learned principal counsel (Mr. Hafeez-ur-Rehman Ch., Advocate) being busy in a meeting is not available, therefore, cases may be adjourned.
4. Learned counsel for the respondent bank on the other hand supported the impugned orders.
5. Arguments heard. Record perused. Regarding non-availability of learned Principal counsel for the appellants, we have noted even on last date of hearing i.e. 03.11.2022, similar request was made, hence this case along with connected cases were treated as part heard matter and fixed for today with specific direction that no further adjournment be granted. Even today, no lawful excuse has been rendered for non-availability of learned principal counsel for the appellants. In such circumstances, the request is declined and we are proceeding to decide the appeal on merits in view of law settled by august Supreme Court in M. Haleem and others v. H. Muhammad Nasim and others (PLD 1969 SC 270).
6. Admittedly, in present cases, in response to notice under section 9(5) of the Ordinance, the appellants filed PLAs which were replied by the respondent bank, however, appellants were proceeded against ex-parte, but PLAs were not dismissed for non-prosecution rather same were decided on merits through ex-parte judgments and decrees dated 08.2.2017. Subsequently, the appellants applications for setting aside ex-parte judgment and decree were dismissed through impugned order dated 27.6.2019. In the above given facts, the moot question require determination is that whether applications for setting aside ex-parte judgments and decrees were maintainable or appellants could only file appeals under section 22 of the Ordinance. Though no provision of law is mentioned on the applications for setting aside ex-parte judgments and decrees, however, it could either be treated applications under section 112 of the Ordinance or Order IX, Rule 13 of the Code of Civil Procedure, 1908 (C.P.C.).
7. First we examine if applications were maintainable under section 12 of the Ordinance. For ready reference, section 12 of the Ordinance is reproduced hereunder:- "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 when 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 by sufficient cause from making an application under section 10, or that the summons was not duly served, [nor published in newspapers], 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 [which shall not be less than one third of the amount of decree] and allow him to make the application within ten days of the order".
The plain reading of section 12 of the Ordinance ibid shows that where a decree passed against defendant under subsection (1) of section 10 of the Ordinance, he may within 21 days of the date of decree or where the summons were not duly served, when he has knowledge of the decree, applied to the Banking Court for an order to set aside the decree and learned Banking Court if satisfies that defendant was prevented by sufficient cause from making an application under section 10 or summons were not duly served, shall make an order to set aside the decree against him, upon such terms as to the costs, deposit in cash or furnishing of security and allow him to make- application/PLA within ten days of the order. The holistic and conjunctive reading of section 12 along with sections 10(1) and 9(5) of the Ordinance shows that decree can only be set aside under section 12 of the Ordinance if it was passed for failure to file PLA. Such application could be filed within a period of 21 days of the date of decree or where the summons were not duly served, when he had knowledge of the decree. However, if PLA was filed and the same was decided on merits, application under section 12 of the Ordinance is not maintainable rather only appeal under section 22 of the Ordinance is maintainable.
8. Similarly in Messrs Ammar Rice Dealers and 2 others v. National Bank of Pakistan and others (2004 CLD 857), this Court while interpreting section 12 of the Ordinance observed as under:- "The bare reading of the above section shows that the defendant against whom the decree has been passed, can apply for setting aside the decree if (i) the same has been passed under section 10(1) of the Ordinance, and (ii) where the summons was not duly served upon him when he has the knowledge of the decree. Under section 10(1) of the Ordinance, the defendant is not entitled to defend the suit unless he obtains leave from the Banking Court. In the instant case, the appellant was duly served and the application for defending the suit was also filed. In this view of the matter, the remedy under section 12 of the Ordinance was not available to the appellants. The application before the Banking Court was misconceived. The learned Banking Court by proceeding to decide the application on merits, completely misdirected himself as to the application of law. The said application for setting aside the ex parte decree under section 12 of the Ordinance, being not maintainable, the present appeal is also not competent".
Same view was also expressed in Mst. Tahira Yasmeen and others v. Muslim Commercial Bank and others (2005 CLD 927) where it is held as under:- "In view of the above findings, as the appellants did file the application for leave to defend the suit and subsequently the decree was passed, therefore, their application, under section 12 of Ordinance, 2001, was not maintainable in law and thus no exception could be taken to the impugned. order. The learned Banking Court has rightly relied upon the case of Messrs Ammar Rice Dealers and 2 others v. National Bank of Pakistan and others 2004 CLD 957. In view whereof, the principles laid down in the case of Mst. Saeeda (ibid), relied upon by the learned counsel, are not applicable in the present case".
9. The next legal question is that whether applications under Order IX, Rule 13, C.P.C. could be filed in instant matters for setting aside the judgments and decrees. No doubt under section 7(2) of the Ordinance, the procedure of C.P.C. will be followed, however, the same will only be applicable in those cases where Ordinance is silent and no procedure has been laid down therein. Since section 22 of the Ordinance provides the procedure that any person aggrieved by judgment, decree, sentence or final order passed by Banking Court may within 30 days prefer an appeal to High Court, therefore, provision of C.P.C. to that extent will not be applicable. In the present cases, ex- parte judgments and decrees dated 04.1.2017 being passed on merits amounts to final judgments/orders, hence appealable under section 22 of the Ordinance and applications under Order IX, Rule 13, C.P.C. were not maintainable. This legal position was also discussed and reiterated by learned Division Bench of this Court in case Messrs Agrocare and others v. Zarai Taraqiati Bank Limited (2011 CLD 990), where learned Court held that as under:- "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 (late, no one from the appellants' side appeared in the court, hence the learned Judge Banking Court-IV, Lahore decided the Mauer 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 v. Muslim Commercial Bank, and others" reported as 2005 CLD 927.
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".
10. The same view was also expressed by learned Division Bench of this Court in Messrs Sahib Gas Ways through Partner and others v. The Bank of Punjab through Manager (2013 CLD 501) where it is held as under:- 'We have perused the impugned order refusing the leave to defend the suit. We have noticed that the learned Judge Banking court has decided the application for leave to defend, on merits. The contention of the appellant that it has been dismissed for non-appearance is not factually correct. In our view the application for leave to defend the suit was dismissed on merits and a decree was passed after the dismissal of application for leave to defend, the decree was assailable before this Court through an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and filing of an application in these circumstances for setting aside ex pane order under Order IX, rule 13 of the C.P.C. was misconceived".
11. Notwithstanding the above legal position that applications of the appellants were not maintainable under section 12 of the Ordinance or under Order IX, Rule 13, C.P.C., even otherwise, the matter having been decided on merits, the only remedy for the appellants was to file appeals under section 22 of the Ordinance as held by learned Division Bench of this Court in Messrs Arbab Cotton Industries and Oil Mills through Managing Partner v. National Bank of Pakistan through Branch Manager (2017 CLD 1657). Relevant part of the judgment is reproduced hereunder:- "The judgment and decree passed on merits could not be set aside under section 12 of the Financial on merits Institutions (Recovery of Finances) Ordinance, 2001. The only remedy available to the appellant was to file the appeal against me said judgment and decree. This court has already expressed views in the cases "Mst. Tahira Yasmeen and another v. Muslim Commercial Bank through Branch Manager and 6 others (2005 CLD Lahore 927), Messrs Sahib Gas Ways through Partner and 4 others v, The Bank of Punjab through Manager (2013 CLD Lahore 501) and Messrs Ammar Rice Dealers and 2 others v. National Bank of Pakistan and others (2003 CLD Lahore 857) that in a -similar situation as in this case the application for setting ex pane judgment and decree is not maintainable, therefore, FAO in hand cannot succeed, which is dismissed".
12. In view of above discussion, we have no manner of doubt that applications of the appellants for setting aside judgments and decrees dated 08.2.2017 were not maintainable, hence lawfully dismissed by learned Banking Court, therefore, these appeals being meritless are dismissed with no order as to costs.