' JAWWAD S. KHAWAJA, J.---This appeal impugns the order dated 5-4-2002, whereby the learned Banking Court-IV, Lahore, dismissed an application filed by the appellant to seek setting aside of the decree dated 15-11-2001 passed against her. The appeal was admitted to regular hearing on the basis of the following admitting order:- "Learned counsel for the appellant, who was defendant No,4 before the learned Banking Court, contends that a decree dated 15-11-2001 was passed against the appellant although the appellant had not been served. He further contends that the appellant did not file any application seeking leave to appear and defend nor did she appoint any counsel to represent her. He states that this is evident from the record of the learned Banking Court."
2. In the above circumstances, the appellant/ defendant filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 seeking setting aside of the ex parte decree dated 15-11-2001. It was clearly stated in the said application that the appellant/defendant had not been served. Notwithstanding this position, the learned Banking Court proceeded to dismiss the application on the ground that the application seeking leave to appear and defend, which was submitted by defendants Nos.1, 2 and 3 had stated that it was an application moved on behalf of the defendants. According to learned counsel, the learned Banking Court did not take into account the fact that the appellant/defendant No,4 had not signed the Wakalat Nama in favour of learned counsel for the other defendants nor had she signed any affidavit or the PLA."
2. Today we have ourselves examined the record of the learned Banking Court. We note that in fact Mst. Saeeda appellant/defendant had not filed any application seeking leave to appear and defend and nor had she engaged any counsel to represent her. Her signatures did not appear either on the PLA or on the affidavit in support thereof.
3. Furthermore, it is clear from the record that no summons were issued to the appellant, who was defendant No,4 in the suit filed by the respondent-Bank. When confronted with this situation, learned counsel for the Bank asserted that services on the first two defendants namely Messrs Abbas Enterprises (Pvt.) Ltd. And Muhammad Ashfaq, Managing Director of Messrs Abbas Enterprises (Pvt.) Ltd. Constituted proper service on the appellant/defendant also. This submission is wholly devoid of merit.
4. The appellant/defendant was sued in her capacity as a guarantor. Under the law, it was necessary for the learned Banking Court to issue process in each of the four modes of services prescribed under the Financial Institutions (Recovery of Finances) Ordinance, 2001. Since it is established from the record that summons were not issued to the appellant/defendant through the process serving agency, she was entitled to the setting aside of the decree dated 15-11-2001, which was passed without affording to her an opportunity of being heard.
5. We further note that even service through registered post was not effected on the appellant/defendant. The postal endorsement shows that she was not residing at the given address.
6. For the foregoing reasons, we set aside the order dated 5-4-2002 and allow the application filed by the appellant/defendant for setting aside of the decree dated 15-11-2001 to her extent only. She shall be entitled to file, within ten days from today, an application seeking leave to appear and defend, which application shall be decided by the learned Banking Court in accordance with the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001.