' MUHAMMAD MUZAMMAL KHAN, J.---Instant first appeal is directed against the order dated 13-7- 1999 passed by the learned District Judge, Islamabad, dismissing application of the appellant for setting aside the ex parte decree and for grant of leave to defend the suit of the respondents under Order XXXVII, rules 1 and 2, C.P.C.
2. Precisely, relevant facts are that respondents filed a suit for recovery of Rs.13,00,000 under Order XXXVII, rules 1 and 2, C.P.C. On the basis of Cheque No.144615 dated 20-6-1996, issued by the appellant and drawn on American Express Bank Ltd. Ali Plaza, Blue Area, Islamabad. Appellant on account of purchase of land for development of its housing scheme in Zone 5 of District Islamabad entered into an agreement with the respondents, on the basis of which Mutation No.3744 was sanctioned and in lieu of sale price the above referred cheque was issued. The cheque was presented to the drawee bank, but payment thereof was refused, which necessitated filing of suit.
3. Learned District Judge, Islamabad, being the trial Court issued summons for service of the appellant, which was effected on 22-11-1997. One Sajjad Ahmed representative of the appellant appeared before the trial Court on 6-12-1997. Since no petition for leave to appear and defend the suit was filed on behalf of the appellant within the statutory period, suit by the respondents was decreed on 22-4-1998.
4. The decree holders went in execution of the decree passed in their favour, wherein property of the appellant was ordered to be auctioned, before which, appellant on 15-5-1999 filed an application under Order XXXVII, rule 4, C.P.C. Praying setting aside of ex parte decree and for grant of leave to appear/defend the suit. Appellant asserted in its application that no lawful service was effected and it had no knowledge of pendency of the suit which came to their knowledge on 22-4- 1998 when a proclamation of sale of their property' was issued. Issuance/execution of cheque on the basis of which the suit was filed was not denied and instead, agreement between the parties was relied to submit that appellant and Messrs M.G. Realtors were the partners of the project wherein Messrs. M.G. Realtors were to bring 100% investment for the project, 50% in the shape of land and 50% from bank borrowing and in this manner liability to pay the cheque was denied.
Application filed by the appellant was contested by the respondents and the learned District Judge vide his order dated 13-7-1999 dismissed the same holding that notwithstanding non-service of the appellant they were aware of the pendency of the suit, wherein their representative remained present on number of dates and was marked present in the interim orders. Appellant has filed the instant appeal which was admitted to regular hearing and respondents in response to notice by this Court appeared through Syed Nayyar Hussain Bokhari, Advocate, but in spite of appearance of his name in the daily cause list and issuance of notice through postal card requiring his appearance for today, none has appeared to defend this appeal, hence the respondents are proceeded against ex parte.
5. Learned counsel for the appellant strenuously argued that no personal service of the appellant was ever effected, hence decree passed on 22-4-1998 at their back was liable to be set aside. He further argued that since investment for the project was to be injected by Messrs. M.G. Realtors, the appellant is not liable to pay the decretal amount. According to him, case for grant of leave to appear and defend the suit was made out, but a contrary view taken by the trial Court was not in consonance with the record.
6. We have minutely considered the arguments of the learned counsel for the appellant and have examined the record, with his help. An attempt has been made to assail both the decree dated 22- 4-1998 and order dated 13-7-1999 in instant first appeal, but we have no ambiguity that appeal against judgment and decree dated 22-4-1998 could be filed within a period of 90 days, obviously after deducting time spent for obtaining certified copies thereof, but this appeal having been filed on 10-9-1999 after lapse of a period of one year and five months, is patently beyond limitation.
Certified copies of the judgment and decree dated 22-4-1998 were applied on 14-7-1999, which were prepared on 6-8-1999 and were delivered on 11-8-1999, thus the appellant was only entitled to exclusion of 26 days on account of time spent for obtaining the copies. We are of the considered view that appeal against decree dated 22-4-1998 is beyond limitation.
7. Order dated 13-7-1999 was passed on an application apparently filed under Order XXXVII, rule 4, C.P.C. For setting aside the judgment and decree dated 22-4-1998. This application primarily is under Order IX, rule 13, C.P.C., which was dismissed through the impugned order. Such an order was appealable under Order XLIII, rule 1(d), C.P.C., hence there against an F.A.O. Was competent and not a regular first appeal under section 96, C.P.C. Be that as it may, we treat it as an appeal against order and decide it as such. Service of the appellant was effected on 22-11-1997, in response to which their representative Sajjad Ahmed appeared before the learned District Judge on 6-12-1997.
Another representative of the appellant namely, Abdul Ghafoor Abroo also had been representing the appellant before the trial Court and he was bound down to remain in attendance before the said Court. His presence was marked in number of interim orders. In these circumstances, it did not lie with the appellant to claim that they were not aware of the pendency of the suit. Appellant even in memorandum of appeal before this Court has not refuted the fact of its service and appearance of its representative on different occasions before the trial Court.
8. Suit by the respondents was filed on the basis of Cheque No.144615 dated 20-6-1996 drawn on.
American Express Bank, Islamabad, issuance/execution of which was neither denied before the trial Court nor was refuted during the hearing before us. Respondents who had presented this cheque to the drawee bank, payment of which was refused, had already transferred their land in favour of the appellant through Mutation No.3744 and thence were not concerned with any agreement inter the D appellant and Messrs. M.G. Realtors for bringing investment for the project to which they were not party. At the same time, such agreement was not enough for grant of leave to appear and defend the suit under Order XXXVII, rules 1 and 2, C.P.C. On an instrument, issuance/execution of which was admitted. As a matter of fact, appellant had not pleaded any controversy touching the suit of the respondents which required adjudication/trial through recording of evidence. The trial Court has allowed payment of a cheque issued in 1996, amount whereof has lost its purchase value on account of inflation whereas land of the respondents which was transferred in favour of the appellant has gained value, many a times on account of increase of prices of the properties in the market. This situation brings us to hold that no injustice has occasioned to the appellant as they themselves slept over their rights after service of notice by the trial Court and in spite of appearance through their representative, did not opt to apply for leave to appear and defend, within time.
9. For the reasons noted above, we are constrained to hold that no illegality was committed by the trial Court and the order impugned being in accordance with law applicable and facts apparent on the face of the record, deserves no interference. This appeal, consequently, has no merit in it and is dismissed with no order as to costs.