1. ' ZIA PERWEZ, J.---This First Appeal is directed against the impugned judgment and decree of the learned District Judge Karachi South, dated 5-4-2007 and 10-4-2007 respectively in Civil Suit No,59 of 2006 in favour of the respondent.
2. ' Brief facts of the case are that the plaintiff/respondent claims to have advanced a loan of Rs,8,38,600 to the defendant for business purpose. Initially payments were made to him towards the profit and principal amount but subsequently defendant discontinued to make payment and thus a sum of Rs,5,38,600 became due and payable by the defendant/appellant for which the defendant issued four cheques in the sum of Rs,230,100, dated 26-1-2005, Rs,1,54,500 dated 11-4- 2005 Rs,102,500, dated 11-5-2005 and Rs,51,500 dated 21-5-2005, which on presentation were dishonoured, hence the respondent instituted suit under Order XXXVII Rule 1 C.P.C. For recovery of Rs,5,38,600 against the defendant/ appellant.
3. ' Leave to defend the suit was granted by the learned trial Court vide order dated 16-1-2007 subject to furnishing of security within 30 days. Appellant failed to furnish security and approached this Court by way of Revision Application No,14 of 2004 dismissed in limine vide order dated 20-2-2007.
4. Appellant then approached the Hon'ble Supreme Court by way of Civil Petition No,125-K of 2007 in which too leave to appeal was refused and the petition was dismissed by order dated 15-3-2007.
5. After failing to obtain any relief up to the apex Court, the applicant indulged in second round of applications by first filing applications under section 148 C.P.C. And then application under section 151 C.P.C. Seeking extension of time to furnish surety and for permission to cross-examine the plaintiff respectively: These applications were disposed of vide order dated 22-3-2007 followed by impugned judgment and decree.
6. ' In. Pursuance of pre-admission notice to the respondent, Mr. Mazhar Ali B. Chohan filed, his Vakalatnama and also counter-affidavit to application under order XLI rule 5 C.P.C. Both the learned counsel have advanced their respective arguments in detail and hence the appeal is being heard and finally disposed of at this stage.
7. ' Contention of Mr. Abdul Karim Khan, learned counsel for the appellant, is that the appellant made bona fide efforts to furnish security after the order the learned Apex Court. However prejudice has been caused to the appellant by failure of the learned trial Court to proceed according to law .By not allowing time for furnishing, surety and ordering for cross-examination of the respondent/plaintiff. In this regard he has specifically referred to the statement showing payment of Rs,4,45,000 made to the respondent both through cash as well as through cheques to show bona fide of the appellant. Under the circumstances, learned counsel relying on the cases of Khurshid Akbar v. Mian Manzur Ahmed (1982 SCM R 824) and Ghulam Muhammad v. Irshad Ahmad (PLD. 1982 SC 282) prayed for the ,order to be set aside and time be allowed for furnishing of surety, as held in cited cases.
8. ' Mr. Mazhar Ali B. Chohan, learned counsel for the respondent, while opposing the contention of learned counsel for the appellant, argued that initially Rs,8,38,000 were paid by the respondent to the appellant. The dates of repayment mentioned in the .Statement of accounts go to show that the payments were being made by defendant to the plaintiff from time to time with effect from 18- 5-2002. These dates are much prior to those of issue of cheque. It was much later that the cheques for Rs .1,54 ,500 dated 11-4-2005, Rs,102,500 dated .11-5-2005, Rs,51,500 dated 21-5-2005 and Rs,230,100, dated 25-5-2005 were issued which clearly show that past receipts have been duly accounted for. He also referred to the order of the Hon'ble Supreme Court in Civil Petition No,125-K of 2007. In support of his contentions, he has placed reliance on the cases of Muhammad Iqbal v.
9. Muhammad Asim (2005 CLC 1279) and Muhammad Ismail v. Syed Intizar 'Abbas Zaidi (2004 CLC 389).
10. ' Perusal of record shows that the Hon'ble Supreme Court while dismissing Civil Petition No,125-K of 2007 was pleased to observe as under:-- .. As a matter of fact, on failure of the petitioner to furnish security as ordered by the District Judge within the period of thirty days the suit in accordance with the provision of Order XXXVII C.P.C. Stood decreed. In the circumstances the question of accepting the surety furnished by the petitioner in his bail case as security in this case does not arise...
11. ' It appears that on failure of appellant to obtain any relief from the apex Court, he indulged into a second round of applications under section 148 C.P.C. And for seeking permission to cross-examine the plaintiff on the ground that the parties are negotiating for a compromise. Learned trial Court in order dated 22-3-2007, while dismissing the application; rightly observed that the parties are free to enter into compromise at any stage of the proceedings but it does not create ground for setting aside or defer the earlier orders upheld to the level of the Hon'ble Supreme Court. Even otherwise, the respondent has never admitted to have negotiated for a compromise. The statement of accounts filed by the appellant himself goes to show that he had been making payments from the year, 2002 which supports the contention of the respondent pertaining to the initial A payment of Rs,8,38,600 and after accounting for the amount received the suit for recovery of remaining amount i.e, Rs,5,38,600 was filed. The appellant was neither allowed any extension of time for furnishing of surety nor any delay was condoned by the learned trial Court or the Hon'ble Supreme Court who declined leave to appeal in Civil Petition No,125-K of 2007 on 15-3-2007 filed by the appellant. When confronted with the observations of the learned Apex Court as reproduced above, Mr. Abdul Karim Khan was not in a position to contradict the same.
12. ' The case-law cited by the learned counsel for the appellant are distinguishable as the same pertains to the principle laid down for extension of date in cases of preemption which are not relevant for the purposes of the present suit filed under Order 37 rule 1, .C.P.C. Payments, if any, made by the defendants after institution of suit can always be considered by the executing Court in accordance with law while recording satisfaction of the decree.
13. ' Under the circumstance, no case calling for interference with the impugned judgment and decree is made out. The appeal is patently frivolous and is accordingly dismissed with cost of Rs,10,000 along with listed application.