' MIAN HAMID FAROOQ, J.---Present appeal, proceeds against order dated 5-9-2001, whereby the learned Judge, Banking Court, dismissed appellant's objection petition primarily on account of non-deposit of a sum of Rs.5,00,000.
2. Facts, leading to the filing of the present appeal are that pursuant to passing a decree for the recovery of Rs.76,53,100 by the learned Banking Court, Karachi, against the appellants, vide judgment and decree dated 7-3-1998, the respondent-Corporation filed an execution petition before the Banking Court at Karachi, which was subsequently transferred to the learned Banking Court at Lahore. After the receipt of the said execution petition, the learned Banking Court at Lahore, ordered for the attachment of the assets of the appellants, which prompted the appellants to file an objection petition, on 21-9-1999, before the learned Banking Court, which was resisted by the respondent-Corporation and ultimately the learned Banking Court dismissed the objection petition, for non-compliance of the order under Order XXI, Rule 23-A, C.P.C., for non-deposit of a sum of Rs.5,00,000, on 5-9-2001, hence, the present appeal.
3. Although notices were sent to the respondent-Corporation, yet nobody has entered appearance to represent the respondent-Corporation despite service, thus, the respondent is proceeded ex parte.
4. Learned counsel for the appellants has contended that the learned Banking Court failed to consider the objections raised by the appellants; did not provide any opportunity of hearing to them; the impugned order was passed against the facts and law and thus, the same is liable to be set aside. He has submitted that a sum of Rs.5,00,000, as ordered by the learned Banking Court, has now been deposited by the appellants under the orders of this Court, thus, the appellants have substantially complied with the order regarding deposit of the amount.
5. Upon the examination of the record of the case, we find that the objection petition, filed by the appellants, under Order XXI, rule 58-60, C.P.C., for release of movable and immovable properties from attachment, was contested by the respondent-Corporation by way of filing the reply, wherein a preliminary objection was raised regarding the non-compliance of the provisions of Order XXI, rule, 23-A, C.P.C. It appears from the record that on account of said objection, the learned Banking Court, vide order dated 25-7-2001, directed the appellants to deposit a sum of Rs.5,00,000, which amount was not deposited by the appellants, thus, resulted in the passing of the impugned order.
Upon the filing of the present appeal, this Court directed the appellants, vide order dated 8-10-2001, to deposit a sum of Rs.5,00,000 with the learned executing Court and pursuant thereto the learned counsel for the appellants made a statement before this Court, on 22-11-2001, that the amount of Rs.5,00,000 has been deposited within the stipulated period granted by this Court. Even today the learned counsel has reiterated that the appellants have deposited the requisite amount within the prescribed period.
6. Upon the further examination of the available record, we find that although the learned Banking Court directed the appellants to deposit a sum of Rs.5,00,000, in purported exercise of powers conferred under Order XXI, rule 23-A, C.P.C., yet no sufficient opportunity was granted to the appellants for the compliance of the said order, inasmuch as the impugned order was passed in the absence of the learned counsel for the appellants. We are of the view that in the present circumstances, the learned trial Court should have waited for the learned counsel for the appellants or if the appellants failed to comply with the terms of order dated 25-7-2001, it would have been in the fitness of things to have provided another opportunity for the deposit of the said amount. Be that as it may, as is evident from the order dated 22-11-2001 and in view of the statement of the learned counsel, now the said amount stands deposited with the learned executing Court, thus, we are of the view that the order passed by the learned Banking Court, which resulted in passing the impugned order, has substantially been complied with and we see no impediment in setting aside the impugned order moreso when the objection petition was mainly dismissed on account of the non-compliance of the order regarding the deposit of a sum of Rs.5,00,000 and the learned Banking Court proceeded to dismiss the objection petition without rendering its findings on the merits of the objection petition.
7. Upon the perusal of the impugned order, we are of the view that the same is not sustainable in law as no sufficient opportunity was granted to the appellant for the deposit of requisite amount.
Furthermore, the said order has now been complied with and the said amount has since been deposited by the appellants, though under the orders passed by this Court. We are inclined to set aside the impugned order.
8. Upshot of the above discussion is that the present appeal stands accepted and the impugned order dated 5-9-2001 is set aside with no order as to costs. The result would be that the objection petition, filed by the appellants, shall deem to be pending before the learned Judge, Banking Court, Lahore, who shall decide the same after hearing the parties and of course, in accordance with law.