' In the suit filed by the plaintiff/decree-holder, petition for leave had been filed by the applicants.
The suit was listed for hearing on 23-5-2001 when none appeared for the applicants/defendants and was decreed ex parte, dismissing the petition for leave. This is an application under Order IX, Rule 13, C.P.C. And sections 10 and 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances), Act 1997.
2. The application is opposed by the learned counsel for the plaintiff/decree-holder on merits as also that the same is not maintainable under the law.
3. Admittedly, the suit was listed for hearing on 23-5-2001. The reason for non-appearance of the applicants/defendants and of their learned counsel on the said date as stated in the application is that the parties were negotiating the restructuring of the finance, the subject-matter, for which purpose, the applicants/defendants had taken the file from the learned counsel. Suffice to observe that when the case was listed for hearing and the names of their learned counsel appeared in the cause list, there had to be a representation before the Court, at least, to inform that the parties were negotiating for some settlement. The learned counsel for the plaintiff/decree-holder relies on Sh. Muhammad Mubarak and 5 others v. Muhammad Iqbal and 11 others 1994 CLC 1708 and Ex-Hay.
Mirza Mushtaq Baig v. General Court Martial 1994 SCM R 1948 that mere taking away the brief from the learned counsel is not sufficient cause for non-representation. The order sheet shows that even on the preceding date i,e, 3-4-2001 the applicants/defendants were not represented, therefore, the cause for non-appearance before the Court on 23-5-2001, is neither convincing nor sufficient in law.
4. As to the competency of the application under Order IX, Rule 13, C.P.C., it may be observed, that the view that has prevailed since after the enactment of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act No,XV of 1997) is that in presence of the remedies provided by the Act itself application under Order IX, Rule 13, C.P.C. For setting aside of an ex parte decree, does not lie. Such a view has been taken by a Division Bench of this Court in F.A.O. No,164 of 2001, decided on 7-6-2001 in which after considering precedents on the subject, it was held that "the application to set aside a decree is competent before the Banking Court only under section 12 of the Act in the given circumstances and if in a particular case the said section is not applicable, then the decree has been made appealable under section 21(4) of the Act. Permitting the challenge to a decree by invoking Order IX, Rule 13, C.P.C. Would run counter to the intendment and object of the special law, which by section 27 attaches finality to orders, judgments, decrees subject to provisions of appeal". Admittedly, the application, filed by the applicants/defendants, does not fall within the ambit of section 12 of the Act. The ex parte decree, therefore, cannot be set aside under Rule 13 of Order IX C.P.C. In view of the remedy of appeal being available under section 21 of the Act.
' In view of the above, this application is dismissed.