' MUHAMMAD SAFDAR KHAN SIKANDARI, J.---Having felt aggrieved from dismissal order dated 13-4- 2009 passed by learned Additional District Judge-IV, D.I.Khan whereby the application of petitioner under section 12(2) C.P.C. Against ex parte decree was dismissed, the petitioner has filed this revision petition under section 115, C.P.C.
2. Succinct facts arising out of the lis in hand are to the effect that due to cordial relations between the parties, the plaintiff-respondent handed over a loan of Rs,1,20,000 to the petitioner while scribing a pro note on 22-6-2003. On demand by the plaintiff and subsequent refusal by the petitioner-defendant, the suit was filed in the Court of District Judge, D.I. Khan and accordingly notice was issued under Order XXXVII, Rule 2, C.P.C. To appear in the Court for onward legal proceedings A and upon failure of the defendant-petitioner, proclamation notice was issued in daily Ausaf which was published on 9-7-2006 but defendant-petitioner again failed to get leave from Court to defend within ten days.
3. Due to repeated absence of defendant and keeping in view the verdict pronounced in 1996 SCM R 1530, the trial Court passed an ex parte decree in favour of plaintiff on 26-7-2006 which was accordingly challenged by the judgment-debtor while submitted an application for setting aside the ex parte decree as well as moved the other miscellaneous application for attachment of monthly salary of judgment debtor and an application for leave to defend the suit in the Court of competent jurisdiction which faced failure and hence the present petition in this Court.
4. Counsel for the parties furnished written arguments placed on record and would be considered as part and parcel of this case. The written arguments so furnished were gone through with great care and the authorities of the superior Courts were viewed meticulously.
5. Apparently, it is the stand of counsel for petitioner that trial Court has not recorded any evidence and ex parte decree was passed in spite of the fact that the alleged pro note was forged and the attesting witnesses were must to be produced and examined for the compliance of Article 79 of Qanun-e-Shahadat, hence, the decree was liable to be set aside. He has further assailed the impugned order of the trial Court as under Order XXXVII, Rule 2 C.P.C. The application is maintainable and the ex parte decree obtained by the plaintiff is the result of fraud for the reason that in view of 2003 YLR 2208, the trial Court was duty bound to frame the issues in connection with application under section 12(2), C.P.C. Like in ordinary suits.
6. Counsel for respondent has also furnished elaborate written arguments wherein he has taken the stance that after repeated summonses the defendant-petitioner intentionally did not attend the Court as he had left D.I. Khan and the proclamation in the news media is a legal formality but once the defendant did not turn up, the proceedings of ex parte decree under Order XXXVII, Rule 2, C.P.C. Are final and till date, the petitioner being serving in Baluchistan did not come nor filed an appeal before the competent forum under the prescribed period of limitation and defendant failed to obtain leave to defend under the law within ten days, therefore, plaintiff was entitled to the decree under Order XXXVII, Rule 2, C.P.C. The arguments advanced by counsel for respondent lends support from the pronouncement handed down in the case of Naeem Iqbal v. Mst. Zarina (1996 SCM R 1530) where it is held that, "if a defendant after being summoned of a summary suit does not obtain leave to appear and defend the suit, the allegation in the plaint shall be deemed to be admitted and plaintiff shall be entitled to a decree". Moreover, the petitioner did not file any appeal from impugned judgment dated 27-7-2006 which decree is appealable under section 96 C.P.C. In the High Court and now his prayer is hopelessly time-barred and that is why the petitioner took recourse for filing petition under section 12(2), C.P.C. And that too when execution proceedings were in progress. Thus the device adopted is nothing but the frustration of decree passed in favour plaintiff and such will be the position where the matter is taken to this Court for delaying the execution of decree without depositing the decretal amount of furnishing the security bond provided under Order XXI Rule 23-A C.P.C. The petitioner, as per arguments of counsel for respondent, is serving in Quetta, Province of Baluchistan, when served through Director N.A.B. Did not personally appear in the Court and filed the petition through counsel under section 12(2) C.P.C.
Which was rightly dismissed being not maintainable because appeal lies from impugned decree passed under Order XXXVII, Rule 3 P.P.C. And the defendant could have challenged the genuineness of promissory note had he been appeared in the Court and obtained the leave to defend the suit.
7. It is evident from material before me that the pro note was scribed between the parties in the year 2003 and because of repeated absence of petitioner-defendant, decree was passed in 2006 and till yet the execution of the said decree and procurement of defendant is a debatable question for the Court which clearly infers that the petitioner, by any means, trying to delay the execution proceedings to deprive the decree-holder from usufruct of decree since long ago passed in his favour and a handsome portion of the decretal amount has been deposited through attachment of salary in the Executing Court.
8. As earlier stated the authorities cited by the counsel for parties were gone through carefully and I have great regard to the dicta laid down therein by my colleague Benches but the authorities whereon counsel for petitioner has relied upon are not befitting to the circumstances and facts of the present case and the rulings quoted in the pronouncements i.e, 1996 SCM R 1530, 2006 CLC Lahore 236, and 2006 SCM R 630 are helpful for my guidance to decide the instant petition on merits, therefore, for the reasons aforementioned, I am constrained to hold that the petitioner being D meritless and having no substance is hereby dismissed. The decree-holder is allowed to withdraw the decretal amount already deposited in the Court, according to law. No order as to costs.