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First Appeal No.44 and Civil Miscellaneous Appeal No.1227 of 1986, decided on 17th February, 1987.

---O. XXXVII, Rr. 2 & 3--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), Ss. 6 & 7--Suit for recovery of bank loans-Application for leave to defend--Order of Trial Court--Appeal against--Order of Trial Court being composite one as by that order not only applications of appellants for leave to defend suit were dismissed, but simultaneously suit of respondent-Bank was also decreed, held, could not be deemed, as interlocutory order--Plea of appellants that appeal filed by them was merely appeal against interlocutory order, was not correct.

---O.XXXVII, Rr.2 & 3--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.12 (1)--Appeal against interlocutory orders--Competency of--In matters of recovery of loans, appeal before High Court, held, was competent only against orders of Trial Court disposing of whole case and not against interlocutory orders of Trial Court--Appeal filed against composite final orders of Trial Court, defend, -would be competent as same was not merely against interlocutory orders.

---S.12 (5)--Appeal against order of Trial Court--Maintainability of--Admission of appeal against order of Trial Court not allowable unless and until either appellant deposited amount of decree in Court or made application to Court for allowing appellant to provide security to the extent of decretal amount--Appeal filed without complying with said two conditions, held, could not be considered to be admitted to regular hearing.

---O. XXXVII, Rr. 2 & 3--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), Ss.6 & 7--Suit for recovery of loans- Application for leave to defend--Trial Court fully dealing with applications for leave to defend, taking into consideration various dates on which summons were alleged to have been received, concluded that applications were time-barred--Plea of appellants that as their case was not considered by Trial Court, therefore, order of Trial Court was nullity, held, did not appear to be correct in circumstances.

A.A. Zari for Appellant.

--This appeal is directed against the order dated 31-8-1986 in Suit No. 985 of 1985 by which the three applications filed by appellant for permission to defend the suit were rejected as miserably time-barred and in the same order the decree of Rs.1,36,29,130 was passed against the appellant. The appeal is also against the decree which was passed in pursuance of the said order, dated 31-8-1986. There is an office objection that the appellant has not complied with the provisions of section 12 (5), Banking Companies (Recovery of Loans) Ordinance, 1979 which is reproduced hereunder:

"No appeal shall be admitted for hearing unless the appellant deposits in cash with the high Court an amount equivalent to the judgment debtor, at the discretion of the High Court, furnishes security equal in value to such amount."

Mr. Zari learned counsel for the appellant has contended that he has filed an appeal against the order which according to him is nullity and he was condemned unheard at the time of the passing of order dated 31-8-1986 and, therefore, his submission is that it is an appeal primarily against the interlocutory order to the extent of the dismissal of his three applications and the error being patent on the face of record that interlocutory order in nullity in law and, therefore, the further order of decreeing the -suit based on that is also nullity.

We are afraid that this submission is not justified in the first instance it is not an appeal against any interlocutory order alone as the paragraph 7 of the grounds of this appeal asserts that the judgment and decree passed by the trial Judge is otherwise erroneous and contrary in law. Therefore, the submission that it is merely an appeal against the interlocutory order is not correct. Moreover, we also find that the very order of 31-8-1986 is a composite order whereby the 3 applications of the appellant have been dismissed and the suit is also decreed simultaneously therefore, the submissions of the learned counsel that it was an appeal from a mere interlocutory order is incorrect.

We are further of the view that in view of proviso of section 12 (1) of the said Ordinance no appeal is competent from any interlocutory order merely dismissing the application for leave to defend the suit and, therefore, this appeal could not be filed merely against' interlocutory orders. The appeal is however competent against the order which disposes the whole case and since this appeal has been filed against the final order and decree, therefore, it is competent to that extent.'

However, the objection in respect of admission of the appeal is 'quite right. Subsection (5) of section 12 of the Ordinance does not allow the admission of appeal unless and until either the appellant deposits the amount of the decree in Court or he makes an application to the Court for allowing the appellant to provide security to the extent of the decretal amount. The appellant has not made any application for the facility to furnish security for the purposes of the decree. He has also not deposited the amount of the decree in this Court therefore, we are afraid, we cannot consider the admission of .this appeal in view of the said provision contained in subsection (5) of section 112, therefore, the appeal cannot be admitted to regular hearing.

The contention of the learned counsel that the order dated 31-8-1986 is nullity has not impressed upon us. The Hon'ble Judge has held that the applications filed by the appellant were time barred. He has dealt with that aspect of the case in paras. 3 and 4 of page 3 of the order under appeal, after taking into consideration the various dates on which the summons were alleged to have been received and he has arrived at the conclusion that the applications were time-barred. Therefore, the merits have been considered and the submission that the case of the petitioner is not considered fees not appear to be correct prima facie. We do not want to further deal with the merits of these submission because we are of the view that in view of the provision of section 12(5) of the said Ordinance this appeal cannot be admitted for hearing, therefore, the same is dismissed in limine. Civil Miscellaneous Appeal No. 1227 of 1986 is also dismissed.

H.B.T./C-5/K Appeal dismissed.

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