2016 C L D 477


2016 C L D 477

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

MUHAMMAD JAVED---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Finance and 3 others---Respondents

First Civil Appeal No. 12 of 2014, decided on 2nd November, 2015.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 12 & 9---Civil Procedure Code (V of 1908), Ss. 12(2), 151 & O. I, R. 3---Suit for recovery of loan amount---Setting aside of ex parte judgment and decree---Parties to suit---Suit against dead person---Scope---Legal heir of defendant-borrower filed application under S.12(2) read with S. 151, C.P.C. for setting aside ex parte judgment and decree on ground that present suit was not maintainable as defendant had died before filing of the suit---Banking Court dismissed the application---Validity---Banking Court had found that death certificate of the defendant was not genuine and same was an engineered document---Defendant had been served through all legal modes including publication, and no one, including the present applicant (legal heir of borrower) had come forward to defend the suit---Applicant had come forward with plea of non-service of court notices either upon defendant or his legal hers after a period about ten years from date of filing of present suit---No suit lay against dead person in the eyes of law, however, that plea was not applicable to the case, particularly when alleged death certificate did not inspire confidence---Applicant could not explain as to why he had filed application intimating death of borrower to Union Council after lapse of five years of (alleged) death when impugned judgment and decree was passed, and as to why the certificate had been obtained after lapse of about five years during execution proceedings---Applicant had not disputed amount of loan mentioned in the impugned judgment and decree---No useful purpose would be served if the judgment and decree were set aside at stage of execution proceedings, as legal heirs were required to pay outstanding liability of their deceased father---High Court allowed the applicant to file objection before executing court if he could produce conclusive documents to show date of death of defendant before passing of impugned judgment and decree---Appeal was dismissed accordingly.

(b) Civil Procedure Code (V of 1908)---

----O. I, R. 3---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Suit for recovery of loan amount---Parties to suit--- Suit against dead person---Permissibility---No suit lay against dead person in the eyes of law---Such rule was not applicable to the case when "death certificate" did not inspire confidence.

            Zulfiqar Ali Naich for Applicant.

ORDER

            Through instant appeal one Muhammad Javed, who claims to be one of the legal heirs of Mukhitar Ahmed i.e. the borrower who obtained loan/finance facility from Allied Bank of Pakistan, and in view of default in payment of such amount, the bank filed suit for recovery, which was decreed ex parte as the borrower failed to show appearance and to file any leave to defend and the same has been impugned through instant appeal. The present appellant filed an application under section 12(2) read with section 151, C.P.C. before the learned banking court, on the ground that since the borrower Mukhtiar Ahmed, father of appellant had died on 20.12.2004, therefore the suit for recovery filed in the year 2005 and the judgment and decree passed by the learned Banking Court on 14.9.2009, against his father is illegal in the eyes of law, as no suit lies against a dead person. Learned counsel for the appellant has readout the impugned order passed on application under section 12(2), C.P.C. as well as the judgment and decree and submits that in view of above factual position the judgment and decree may be set aside.

From perusal of impugned order, it appears that learned banking court, after examining the entire facts and the death certificate produced by the appellant in respect of borrower has observed that the said certificate is not genuine and the same is engineered document for the reason that as per statement of Secretary, U.C. it emerged that Mukhtiar Ahmed allegedly died on 20.12.2004 whereas; the present appellant filed an application intimating the death of Mukhtiar Ahmed on 24.8.2009 and thereafter, such certificate has been issued on 17.2.2014. It has been further observed that the borrower was served through all legal modes including publication however, no one came forward to defend the suit including the present appellant, who claims to be one of the legal heirs. The appellant who claims to be legal heir of borrower, has come forward with the aforesaid plea of non-service of court notice(s) upon the borrower or his legal heirs, after a period of about 10 years from the date of filing of the suit for recovery of the amount, which, however, according to learned counsel for appellant, has not been disputed. There is no cavil to the legal proposition as argued by learned counsel for the appellant that no suit lie against a dead person in the eyes of law. However, keeping in view the peculiar facts and circumstances of the instant case, it appears that such plea is not applicable to the present appeal particularly when the alleged death certificate, which has been seriously disputed by the learned Banking Court does not inspire confidence upon this Court. Whereas, learned counsel has not been able to assist this Court, as to why, if the borrower Mukhitar Ahmed who allegedly expired on 20.12.2004, the intimation was made to the Secretary, U.C. on 24.8.2009 after a lapse of about five years when the judgment and decree was passed on 14.9.2009 and 18.9.2009. It has not been explained, thereafter, as to why, such certificate has been obtained on 17.2.2014, at the time of execution proceedings. The amount of loan as mentioned in the impugned judgment, outstanding against Muhkhtiar Ahmed has not been disputed by the learned counsel for the appellant. Moreover, no useful purpose would be served, if the impugned judgment and decree is set aside at this stage of the proceedings as legal heirs are required to pay the outstanding liability of their deceased father. However, it is clarified that if the appellant and the other legal heirs of Mukhtiar Ahmed, who allegedly died before judgment and decree can still produce some conclusive documents and material before the learned executing court regarding the actual date of death of Mukhtiar Ahmed, they may file such objection before the executing court within one month, which will be considered and decided in accordance with law. Accordingly, there seems no justification to interfere with the finding as recorded by the learned Banking Court. Hence, instant appeal merits no consideration, which is accordingly dismissed in limine along with listed applications.

SL/M-102/Sindh                                                                                  Appeal dismissed.



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