' Hafiz Khalil Ahmad Advocate, for the appellants Mr. Muhammad Irfan Malik, Advocate, for the respondent. - ' Instant First. Appeal is directed against the order/judgments and decrees dated 30-9-2000, 18-2- 2006, and 8-4-2006, passed by the learned Additional District Judge Sargodha, whereby respondent's suit for recovery of Rs.8,00,000 was decreed ex parte and appellant's application under Order IX Rule 13, C.P.G. For setting aside the ex parte judgment was accepted subject to furnishing bank security or deposit in cash of the suit amount, [6] was pleaded in the plaint that late Mian Maqbool * Ahmad borrowed a sum of Rs. 8,00,000 from the respondent and executed the pronote/receipt in his favour, undertaking to pay this amount on demand. It was also averred that respondent demanded back his money but Mian Maqbool Ahmad adopted delaying tactics and ultimately refused to discharge his obligation, necessitating filing of suit.
2. Mian Maqbool Ahmad/defendant moved an application praying permission to appear and to defend the suit which was allowed subject to furnishing of surety bond equivalent to the suit amount whereafter he filed his written statement and contested the suit. Issues were framed by the trial court on 4-3-1997, and evidence of the parties was recorded. Mian Maqbool defendant died on 28-6-1997, and his heirs/legal representatives were impleaded in his place. The heirs/legal representatives of deceased defendant also produced their evidence when on 16-101999, Sardar Muhammad Sharif Maiken Advocate, appearing on behalf of the defendants made a statement that he has no instructions to peruse the case, whereupon appellants/defendants were proceeded against ex parte. The trial court on the basis of evidence on the file, decreed the suit of the respondent vide his ex parte judgment/decree-dated 30-9-2000.
3. Petitioners on gaining knowledge of ex parte decree dated 30-9-2000 filed an application on 31- 1-2005, for setting aside of the same which was accepted by the learned Additional District Judge Sargodha on 18-2-2006, subject to furnishing of bank security or deposit in cash of the amount equal to suit money till 18-3-2006. Appellants could not comply with the condition of deposit of cash amount and judgment/decree dated 30-9-2000, was ordered to be revived vide order dated7- 4-2006. Petitioner, thereafter, filed instant appeal and respondent in response to notice*by this court, has appeared and was represented through his counsel.
4. We have heard the learned counsel for the parties and have examined the record.
Judgment/decree dated 30-9-2000, was recalled/set aside by the learned Additional District Judge on 18-2-2006 and the appellants are only aggrieved of the condition of cash deposit, attached thereto. Both the. Orders dated 18-2-2006 and 8- 4-2006, passed by the learned Additional District Judge revealed that those were returned under the impression that the appellant/defendants were to be granted permission to appear/defend the suit whereas they had earlier produced their evidence on 7-5-1999, after their impleadment as heirs/legal representatives of the deceased-defendant. The application for leave to appear/defend the suit was originally granted at the behest of their predecessor Mian Maqbool subject to furnishing of surety bond and he had complied the order in this behalf. The appellants stepped into the shoes of their predecessor and could not be required to furnish bank security or cash deposit by reviewing the earlier accomplished order of furnishing surety bond by the original defendant. It appears that trial court without comprehending the controversy and the facts of the case, passed arbitrary/fanciful orders on 18-2-2006 and 8-4-2006.
5. It goes without remarking that after statement by Sardar Mian Sharif Maiken Advocate on 16-10- 1999 deserting follow up of the case, notices were ordered to be issued to the petitioners but their personal service could not be effected and an attempt was made to have them served by publication of proclamation in newspaper "Jahan Numa" with a restricted circulation. Similarly, two heirs/legal representatives of the deceased Mian Maqbool Ahmad were minors and Reader of the Court was appointed as their Guardian-ad-litem but he was not required to produce evidence on behalf of the minors in terms of order dated 7-5-1999, fixing the case for evidence of the appellants / defendants.
7. Looking from another angle, the original defendant was granted leave to appear/defend the suit subject to furnishing of surety bond whereas the appellants were burdened with the liability of cash deposit of the suit amount Which on the face of it, was harsh because they were not the executants of the promissory note/receipt and had not consumed the alleged advanced amount. Scan of record and impugned judgment/order revealed that controversy was not correctly put to rest and unnecessary/unwarranted condition of deposit of cash amount/ bank security was attached while setting aside the ex parte judgment/decree dated 30-9-2000.
8. For the reasons noted above, instant appeal is bound to succeed and is accordingly accepted.
Impugned judgment/ orders dated 18-2-2006 and 8-4-2006, to the extent of attaching condition of furnishing bank security or cash deposit are set aside, with the result that ex parte judgment/decree dated 30-9-2000, stands adjudged and the suit of the respondent shall be deemed to be pending and will be decided afresh in accordance with law, within a period of 3 months. Trial Court may require the appellants to furnish fresh surety bond, if necessary, within a period of one month. There will no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.