IN THE HIGH COURT OF SINDH AT KARACHI
I.A. No.64 of 2016
___________________________________________________________________ Date Order with signature of Judge
Hearing / Priority Case:
1. For hearing of CMA No.561/2022.
2. For hearing of CMA No.562/2022.
3. For hearing of CMA No.563/2022.
4. For order on office objection/reply as at ‘A’.
5. For hearing of main case.
20th April 2022
Mr. Ravi R. Pinjani, Advocate for Respondent No.1.
Appellant and his counsel are called absent, no intimation is received.
Learned counsel for the respondent No.1 submits that instant appeal is misconceived and not maintainable, as according to him, impugned judgment and decree passed in the instant matter have attained finality, whereas, present appellant moved an application under Section 12(2) CPC before the learned Banking Court in the execution against the auction proceedings, which has attained finality, as sale has been confirmed and the property has been mutated in the name of auction-purchaser. It has been further contended by the learned counsel for respondent No.1 that appellant claimed to be one of the partners, who obtained loan and, thereafter, defaulted, however, appellant does not have any claim on the mortgaged property, as the appellant is neither owner nor mortgager of suit property and the instant appeal even otherwise does not merit any consideration, as the appellant failed to point out any error or irregularity in the impugned order nor could establish alleged fraud or misrepresentation.
Record shows that instant appeal was filed on 12.04.2016 against order dated 20.02.2016 passed by the learned Banking Court No.I at Karachi in Suit No.668 of 1998, whereby, the application filed under section 12(2) read with section 151 CPC with a request to set aside the judgment and decree and the subsequent proceedings of auction, has been dismissed by the trial Court while holding that no reasonable explanation whatsoever has been given by the appellant for not contesting the suit or to file appeal within time against judgment and decree, which has attained finality, whereas, the appellant has also failed to establish any fraud or misrepresentation made before the learned Banking Court while passing the impugned judgment and decree.
Prima facie, we do not find any factual error or legal infirmity in the impugned order passed by the learned Banking Court. However, since the appellant and his counsel have not remained vigilant to pursue instant appeal and remained absent without any intimation, therefore, instant appeal is dismissed on account of non-prosecution alongwith listed applications.
J U D G E
J U D G E