RUSTAM S. SIDHWA, J.---This is an appeal by M/s. Amir Weaving Factory and others, appellants, against the judgment of a Division Bench of the Lahore High Court, dated 4-11-1986 dismissing their regular first appeal and further order dated ' 21-4-1987 dismissing their miscellaneous petition C.M.
No.5379-C of 1986.
2. The brief facts of the case are that the United Bank Ltd., the respondent, brought a suit for the sale of the appellants' mortgaged property and recovery of the outstanding amount of loan of Rs.3,68,924 against the appellants. On 27-11-1980 the appellants confessed judgment and prayed that the decretal amount might be ordered to be paid in instalments and future interest be remitted. However, the respondent insisted upon the payment of interest till the liquidation of the judgment debt and contended that the appellants being well to-- do persons, the facility of paying the decretal amount in instalments be not allowed to them. The learned Judge, Special Court (Banking), passed decree for realization of Rs.3,68,924 in favour of the respondent. It permitted the appellants to pay the decretal amount in monthly instalments of Rs.3,000 and directed that if they committed default in paying two consecutive instalments, the entire amount would become due in lump sum and in that event they would also be liable to pay interest at the rate of 14 per cent. Per annum. Till the repayment of loan, the charge of mortgage was ordered to continue to exist on the appellants' property and in case of failure of payment of the consecutive instalments, the property could be sold. In case the appellants continued paying the monthly instalments, they were not liable to pay any post decretal interest.
3. The respondent-Bank appealed against the said judgment in order to recover interest from the date of decree till date of payment at the contracted rate or at the rate of 2 per cent. Above the Bank rate, whichever was higher. The appeal was ordered to be heard ex parte against the appellants, but on their application the ex parte proceedings were set aside on 19-10-1986 when the appeal was set down for final hearing for 3-11-1986. On the said date nobody put in appearance on behalf of the appellants and therefore the appeal was heard ex parte against them and judgment was delivered in favour of the respondent on 4-11-1986 allowing them interest on the decretal amount at 12 per cent. From the date of decree till the date of realisation of the decretal amount. The interest due was ordered to be paid in monthly instalments of Rs.3,000 after the appellants had paid the principal amount.
4. Being aggrieved by the above judgment, the appellants filed a petition C.P. 134 of 1987 before the Supreme Court seeking leave to appeal against the ex parte decree dated 4-I1-1986.
5. On 26-11-1986 the appellants filed a miscellaneous petition C.M. 5379-C of 1986 under section 151 of the Code of Civil Procedure before the High Court for the setting aside of the ex parte judgment dated 4-11-1986 and for rehearing of the appeal on the ground that their counsel had mistaken the date of hearing to be in the third week of November, 1986, in place of 3-11-1986. The said miscellaneous petition however was dismissed by a Division Bench on 21-4-1987.
6. Being aggrieved by the judgment dated 4-11-1986 passed in R.F.A. 34 of 1981 and the order dated 21-4-1987 passed in C.M. 5379-C of 1986, the appellants preferred a direct appeal as of right to the Supreme Court under Article 185(2) of the Constitution.
7. On 18-4-1990 the appellants withdrew the petition C.P. 134 of 1 987 which it had filed earlier before this Court.
8. We are now left with the direct appeal CA. 16 of 1988 for disposal under the law.
9. On behalf of the appellants it is submitted that their counsel before the High Court was a Mufassil lawyer and on 19-10-1986 when the regular firs appeal was heard and adjourned by the learned Division Bench, the counsel heard the learned Judges as having adjourned the appeal to the third week of November and when the appeal did not come up for hearing, the counsel happened to learn on 23-11-1986 from the Bank's officials that the case had been heard and decided ex parte against his clients. It is contended that the absence of the appellants and their counsel being not wilful but due to a misunderstanding about the date of hearing and also due to the mistake of the office in not informing the counsel, who was a Mufassil lawyer, about the date of hearing, both the impugned orders deserve to be set aside.
10. On behalf of the respondent it is submitted that no direct appeal lies against the last order of the High Court dated 21-4-1987 dismissing the appellants' miscellaneous petition filed under section 151 of the Code of Civil Procedure for setting aside the ex parte decree and no petition for leave to appeal lay against the final order of the High Court accepting the respondents' appeal ex parte. It is therefore submitted that the two remedies pursued by the appellants are both incompetent. It is also submitted that even otherwise the appellants have no case.
11. We have heard the arguments of the learned counsel for the appellants and the respondents and have also perused the record. Even treating the miscellaneous petition C.M. 5379-C of 1986 filed by the appellants in the High Court as one under Order 41, Rule 21 and section 151 of the Code of Civil Procedure for the setting aside of the ex parte decree dated 4-11-1986, no sufficient grounds have been shown to our satisfaction justifying a rehearing of the appeal. This is, however, besides the further fact taken into consideration by the learned Judges of the High Court that had they even allowed the rehearing, they would not have been able to reverse their judgment, in view of the mandatory force behind section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979., which compelled the grant of interest to the decree---holder. In these circumstances, we see no merit in this appeal and dismiss the same, with no order as to costs.