TANV1R AHMAD KHAN, J.- The appellant has taken exception to the order dated 3.11.1996, whereby his application filed under Order 9, Rule 4 read with Section 151 CPC for restoration of execution petition was dismissed.
2. Facts briefly for the disposal of this appeal are that a decree to the tune of.Rs.3,28,987/- alongwith cost was passed by the Banking Court on 9.3.1993. The appellant filed an execution petition on 12.6.1993, which remained pending for a considerable period. Said execution petition was dismissed on 29.10.1996 simply on the ground that the process fee for the issuance of warrants of attachment was not deposited by the appellant/decree-holder. The appellant moved an application on 3.11.1996 without waste of time under Order 9, Rule 4 read with Section 151 CPC for the restoration of his said execution application. The learned Banking Judge through order dated 3.11.1996, dismissed the application. Hence this appeal.
3. We have considered the contentions and have gone through the documents appended with this appeal as well as record. We have noticed that the decree in this case was passed as far back as on 9.3.1993. The execution proceedings remained pending, for more than 3 years and was ultimately dismissed simply on a technical ground for non deposit of process fee. The appellant approached the Court without waste of any time for the restoration of the same but the same was not restored. We have also noticed that property of the judgment debtor was ordered to be auctioned earlier but the same could not be materialized for one reason or the other. Thereafter, at the request of the learned counsel for the decree holder another "fard taleeka" was filed pointing out the property of the guarantor which was not mortgaged. A prayer was made for the issuance of warrants of attachment of the same. The matter remained pending and during this period the judgment of the Full Bench of this Court was also rendered on 21.7.1996 declaring the Constitution of the Banking Tribunal void. However, the said to the interim order of the Banking Tribunal dated 24.7.1996, was suspended by the Hon'ble Supreme Court. Subsequent thereto a notice of "parvi" was issued for 23.12.199,6.
4. These circumstances demonstrate that the appellant had been non-suited simply on technical ground for non-deposit of process fee. Lt is consistent practice of the superior Courts that the matter be decided on merits and technical knock out be sparingly resorted to. in the facts of this case we are of the considered view that an opportunity be given to the appellant/decree-holder to get the matter decided on merits. Accordingly the order impugned dated 3.11.1996 of the Banking Tribunal is hereby set aside as having been passed without lawful authority. The case is remitted to the learned Banking Tribunal where the execution application would be decided on merits by giving opportunity of hearing to the parties concerned. No order as to costs.