Both these civil revisions are directed against the order dated 23.05.2006 passed by learned Additional District Judge, Lodhran whereby expatriate decree in favour of Abdul Waheed- petitioner/plaintiff has been set aside subject to bank guarantee equal to the decretal amount, therefore both are being decided through this single judgment.
2. Brief facts giving rise to the above revisions are that Abdul Waheed (hereinafter called the petitioner) filed suit under Order XXXVII CPC for recovery of Rs, 1,30,000/- on basis of a pro-note against Riasat Ali (hereinafter called the respondent). The respondent was allowed leave to defend the suit upon which he filed written statement whereby he contested the suit raising certain preliminary objections to its maintainability also. In view of the divergent pleadings of the parties, learned trial Court framed necessary issues and parties were directed to adduce their respective evidence. On 16.02.2005 the petitioner's evidence was available, but neither the respondent nor his counsel appeared before the learned trial Court, therefore he was proceeded against expatriate under Order IX Rule 12 CPC and the case was adjourned to 25.02.2005. On that date expatriate evidence was recorded and on the next date of hearing i,e, 04.03.2005 the suit was decreed expatriate. Thereafter, on 31.05.2005 the execution petition was filed. During the execution proceedings, the respondent was arrested and sent to the civil prison upon which on 12.05.2006 he filed application for setting aside the exparte order dated 16.02.2005 and expatriate decree dated 04.03.2005. The application was resisted by the petitioner, however the same was allowed by the learned trial Court vide order dated 23.05.2006 subject to payment of cost of Rs,2000/- and furnishing bank guarantee equal to the decretal amount. On a separate application, the respondent was ordered to be released from jail, subject to furnishing surety bond in the sum of Rs, 25,000/-. Feeling aggrieved by the impugned order, the petitioner has invoked the revisional jurisdiction of this Court. The respondent also dissatisfied with the condition to furnish bank guarantee equivalent to the decretal amount, has filed the revision.
3. Arguments of learned counsel for the parties have been heard and record available on the file perused.
4. Learned counsel for the petitioner has contended that the respondent filed application for setting aside the expatriate proceedings and decree with a delay of one year three months and has not moved any application for con donation of delay under Section 5 of the Limitation Act, 1908. Therefore, the impugned order passed by the learned trial Court is illegal and without jurisdiction. In support of his contention, learned counsel has placed reliance on "Shahid Pervaiz alias Shahid Hameed versus Muhammd Ahmad Ameen" (2006 SCM R 631).
5. Conversely, learned counsel for the respondent has argued that application for setting aside- the exparte decree has been moved under Order XXXVII Rule 4 CPC for which no limitation is provided in law. In the absence of any specific limitation, Article 181 of the Limitation Act, 1908 is applicable under which a judgment-debtor can move application for setting aside the exparte decree within three years. It has been further contended by learned counsel that condition to furnish bank guarantee equivalent to the decretal amount could not be imposed by the learned trial Court when he had been burdened with cost for setting aside order of the exparte decree. In support of his contention, learned counsel has placed reliance on 'Messrs Syed Match Co. (Put) Ltd. through Managing Director versus Messrs Century Paper & Board Mills Ltd. through Director" (PLD 2002 Lahore 155), Yasin Industries and others versus National Bank of Pakistan" (1989 ALD 443), "Syed Mahboob Hussain Shah versus Messrs Commerce Bank Ltd" (1982 CLC 20) and "P.N. Fils Ltd. and another versus Overseas Fils Corporation Ltd" (AIR 1958 Bombay 10).
6. Admittedly, the respondent moved application for setting aside the exparte decree with.a delay of one year, two months and seven days without an application under Section 5 of the Limitation Act, 1908 for con donation of this delay. Order XXXVII Rule 4 CPC provides that after decree the Court may, under special circumstances, set aside the decree, and if necessary, stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. Any limitation for filing the application to set aside exparte decree, is not provided in this provision. In "P.N. Fils Ltd.
And another versus Overseas Fils Corporation Ltd" (AIR 1958 Bombay 10), it has been observed that Article 164 of Limitation Act does not apply to an application made by a defendant against whom a decree has been passed in a summary suit when he was precluded from appearing by reason of the fact that leave to defend was not given. Such an application falls under Order XXXVII Rule 4 and the Limitation Act has not dealt with any such application. Therefore, the article that would apply would be the residuary Article 181 of the Limitation Act. This judgment, in my view, is of no help to the respondent as it covers eventuality when leave to defend is not given to the defendant and he is debarred from participating in the proceedings and defending his case. In the present case, application for leave to defend moved by the respondent was allowed and he contested the suit by filing his written statement: In the light of respective contentions of the parties, necessary issues were also settled and parties were called upon to adduce their evidence. On 16.02.2005, despite a direction by the learned trial Court for personal appearance, the respondent did not appear before the Court, therefore he was proceeded against expatriate and thereafter on 25.02.2005 the petitioner's evidence was recorded and suit was decreed on the next date of hearing i,e, 04.03.2005. In "Shahid Pervaiz alias Shahid Hameed versus Muhammad Ahmad Ameen" (2006 SCM R 631), the Hon'ble Supreme Court of Pakistan has laid down that under Article 164 of the Limitation Act, 1908 thirty days time is prescribed to file an application for setting aside the expatriate decree and the limitation starts from the date of decree in case the defendant had participated in the proceedings before the trial Court. It has further been observed in this judgment that by lapse of time valuable right accrues to the other side and delay of each day has to be satisfactorily explained. Existence of valuable right of the party seeking con donation of delay is not a proper ground for con donation of delay in civil matters. Plea for con donation of relay on the ground of poverty is also not valid ground. It is pertinent to note that this judgment has been rendered by the Hon'ble apex Court in a case under Order XXXVII Rule 4 CPC. In the impugned order, the learned trial Court has itself observed that no solid reason has been described for setting aside the expatriate decree. I also endorse the observation of learned trial Court that there is absolutely no ground for setting aside the expatriate decree particularly when there is no application for con donation of delay in filing the application. In the absence of any sufficient ground for setting aside the expatriate decree, learned trial Court has traveled beyond its jurisdiction while taking lenient view in favour of the respondent and allowing his application.
7. As regards the next contention of learned counsel for the respondent that condition of bank guarantee could not be imposed for setting aside the expatriate decree, judgments cited by the learned counsel are not applicable in this case. In all these judgments, during the tendency .of application for setting aside the expatriate proceedings, the execution proceedings were stayed subject to filing surety bond, therefore this condition was declared to be without jurisdiction. In this case, expatriate decree has been set aside subject to furnishing bank guarantee equivalent to rectal amount, therefore grievance of the respondent is without any substance.
8. In view of the above, Civil Revision No, 412 of 2006 filed by the respondent is dismissed while Civil Revision No, 458 of 2006 filed by the petitioner is allowed and impugned order passed by learned trial Court is set aside.