ABDUL SHAKOOR PARACHA, J.-- This civil revision impugns the order dated 25.11.2002, whereby the application under Order 37, Rule 4 read with Section 151 of the CPC, moved by the petitioner, herein, the judgment-debtor, for setting aside the ex parte judgment and decree dated 30.7.2001, and for restoration of the application for leave to appear and defend the suit, was dismissed in default on 14,7.2001.
2. The brief facts of the case are that Advise (Pvt.) Ltd. Respondent, filed a suit under Ordef 37, CPC for recovery of the amount of Rs.5,00,000/- on the basis of a cheque issued by the petitioner Shah Nawaz. The petitioner appeared in the suit and moved an application for leave to appear and defend the suit. The case was fixed on 26.6.2001. On this date, the petitioner failed to appear and his counsel sought an adjournment which was granted subject to the payment of cost of Rs.1,000/- and the case was adjourned to 14.7.2001. The petitioner did not appear on 14.7.2001, and was consequently proceeded against ex parte and his petition for leave to appear and to defend the suit, was dismissed in default.
3. On 11.7.2002, the petitioner moved an application under Order 37, Rule 4 read with Section 151, CPC, for setting aside the ex parte judgment and decree dated 30.7.2001 and for restoration of the application for leave to appear and defend the suit which was dismissed on 14.7.2001: This application was dismissed by the learned Additional District Judge on the ground that there are no reasonable ground for setting aside the ex parte decree and that the petition is also time-barred.
4. The learned counsel contends that the application for leave to appear and defend the suit was dismissed in default on 14.7.2001 and the application under Order 37, Rule 4 of the CPC for setting aside the ex parte decree was moved by the petitioner on 6.2.2002, after about 7 months.
According to him, no period is prescribed for moving the application under Order 37, Rule 4 of the CPC, for setting aside ex parte decree, therefore, Article 181 of the Limitation Act, which prescribed three years period for moving an application for setting aside ex-parte decree, would be attracted in the present case, and the finding of the learned Addl. District Judge that the petition moved by the petitioner was beyond the limitation is not sustainable under the law. Reliance has been placed on the case reported as Habib Bank Ltd. v. Mussarrat Ali Khan (PLD 1987 Kar. 86), Muhammad Anwar v. Shaukat AH and another (2000 CLR 1834) and Asif Khurshid v. Saeed Ahmad (2000 CLC 913). Further contends that there was reasonable ground for setting aside the ex parte decree.
5. This application was dismissed in default. The petitioner moved an application for restoration of the application for leave to appear and defend the suit dismissed in default on 14.7.2001. The judgment and decree could have not been annulled under Order 37, Rule 4, CPC unless, the application for leave to appear and defend dismissed in default for non-prosecution on 14.7.2001 was not restored, In this view of the matter, the application of the petitioner was under Order 9, Rule 9, CPC in which limitation is 30 days under Article 164 of the Limitation Act. In. The ordinary suit for setting aside the decree passed ex parte, the provisions of Order 9, Rule 13, CPC are attracted, In case where., the summon is not proper or summon has not been served upon the respondent and defendant is precluded to move an application under Order 37, Rule 3 of the CPC, for leave to appear and defend, and the decree is passed ex parte, the application for setting aside the decree can be moved under Order 37, Rule 4 of the dPC and the limitation Would be three years under Article 181 of the Limitation Act, but where, the defendant appeared after receipt of the notice under order 37, Rule 3 of the CPC, filed an application for leave to appear and defend the suit and subsequently disappeared from the Court and Court dismissed the application for grant of leave to defend in that eventuality the provisions of Order 37, Rule 4, would not be applicable land period of setting aside the ex parte order and for restoration of the application for leave to defend would be one month or from the date of knowledge under Article 164 of the Limitation' Act. This proposition was considered in the case of Raees Ahmad Pah/wan v. Nayab Cinema (1990 ALD 763). In the above-referred case defendant, on his application, was granted un-conditional leave to appear and defend the suit. Matter having been filed for regular hearing, defendant absented himself on several occasion resulting in ex parte decree against him. It was held that Article 18T of Limition Act, 1908, where under a period ot three years nad been provided for filing application for setting aside- ^ex parte decree and not Article f81 'of the Limitation Act providing 30. Days period for setting aside the decree. The above-referred case is not applicable tp the facts and circumstances of the present case because the leave to appear and defend the suit has not been granted but the same has been dismissed for non-prosecution, In this view of the matter Article 164 of the Limitation Act would apply which prescribed 30 days for filing an application for setting aside the order through the application for leave to defend, has been dismissed, It is important to mention here that the "decree" referred to in Rule No. XXXVII, Rule 4 is that which may have been passed due to failure of defendant to appear and seek leave or on non-compliance with the conditional order granting lave to defend suit (see case PLD 1984 Kar. 127). The decree may be set aside under Rule 4 upon the defendant showing special circumstances for his inability to appear and obtain leave within 10 days or not appearing after having been granted leave. Similarly, in the case of Muhammad Yusuf v. Abdul Majeed (PLD 1983 Lah. 244), in Order XXXVIH, Rule 4, words "special circumstances"used in Rule 4, held exclude ordinary circumstances or circumstances which may happen every day and indicate such circumstances as are rare, exceptional and not common occurrence. Heavy burden, held, is therefore, cast on defendant to show that circumstances had arisen which besides being good cause or sufficient cause were of special nature, due to which he was unable to appear or fulfil conditions laid down in order"
6. The application for setting aside moved on 8.2.2002, for setting aside the order of dismissal of the application for leave to appear and defend the suit on 14.7.2001, was clearly barred by time.
7. The petitioner has failed to justify his absence on 14.7.2001, when the application for leave to appear and defend the suit, was dismissed in default. The decree-holder respondent also filed an execution of the decree against the petitioner. The petitioner appeared in Executing Court. H$ acknowledged his liability to pay the decretal amount and sought time for payment thereof after sale of the property situated at Faisalabad, as observed by the learned Additional District Judge, vide the impugned order, the petitioner did not make the payment of the decretal amount, but filed the petition for setting aside the decree. He. Cannot approbate and reprobate under the law. The petitioner failed to show any "special circumstances" as envisaged in Order XXXVII, Rule 4 of the CPC, not to appear in Court and in my humble view the provision of Order XXXVII, Rule 4, CPC is not applicable to the facts and circumstances of the case. The petitioner did appear in the Court and moved an application for leave to defend the suit which was dismissed. The learned Additional District Judge has rightly dismissed the petition for dismissal of the application for leave to appear and defend the suit dated 14.7.2001 and the judgment and decree dated 30.7.2001, being barred by time, and observed that there is no ground for setting aside the decree.
8. No irregularity or illegality has been committed by the learned Additional District Judge.
Resultantly, this civil revision fails and is dismissed in limine.