' KHADIM HUSSAIN M. SHAIKH, J.--- Through this civil miscellaneous appeal appellant Muhammad Ishaque has called in question order dated 23.12.2010, passed by learned IInd Additional District Judge, Mirpurkhas in a Summary Suit No,13/2008 re-Farman v. Muhammad Ishaque, whereby he has dismissed an application under Order XXXVII, Rule 4 read with Section 151 of The Code of Civil Procedure, 1908 (Act V of 1908), filed by the appellant.
2. Briefly the facts of the case are that respondent Farman had filed a Summary Suit No,13/2008 re- Farman v. Muhammad Ishaque for recovery of Rs,35,00,000/- under Order XXXVII, Rule 4 of The Code of Civil Procedure, 1908 (Act V of 1908) (which hereinafter will be referred to as The Code), in the Court of District Judge, Mirpurkhas, which was transferred to the Court of IInd Additional District Judge, Mirpurkhas. On service of summons appellant/defendant Muhammad Ishaque appeared before the Trial Court and filed an application for leave to defend the suit under Order XXXVII, Rule 3 of The Code, which was allowed subject to furnishing surety equal to the amount in suit within a period of 15 days vide order dated 26.11.2008 by the Trial Court and the said period was extended twice on the request of learned advocate for the defendant, who then submitted copy of an entry of DF-VII after even the eAtended period, which was sent for verification to the Mukhtiarkar, Mirpurkhas; the plaintiff filed an application under Section 151 of The Code with the prayer not to accept the surety and decree the suit on the ground that the defendant had not fulfilled the condition of the order granting leave to defend the suit within the time granted to him. However, by consent of the learned counsel for both the parties the said application was disposed of vide order dated 10.10.2009, whereby the learned counsel foi the defendant had agreed to deposit security equivalent to the amount in suit; later on the defendant moved an application for re-calling the aforementioned order dated 10.10.2009, which was dismissed and the suit of plaintiff was decreed vide order dated 17.11.2009 and the decree was drawn on 19.11.2009; the defendant lastly filed an application under Order XXXVII, Rule 4 of The Code, praying for setting-aside the decree dated 19.11.2009, which was dismissed by the Trial Court vide order dated 23.12.2010, hence this appeal.
3. Learned advocate for the appellant has mainly contended that the impugned order dated 23.12.2010, passed by the Trial Court is illegal; that the appellant/defendant had furnished surety, which per him, was accepted by the Trial Court; that the consent order dated 10.10.2009; whereby the defendant agreed to furnish security, was illegal, he, therefore, prays that order dated 17.11.2009 and decree dated 19.11.2009, passed by the Trial Court may be set-aside and the case may be remanded to the Trial Court for allowing the appellant/defendant to defend the suit by filing written statement. He has placed his reliance on the cases of Syed Sharaf All Shah v. Syed Liaquat Ali Shah (2000 CLC 1646) and Allied Bank of Pakistan Ltd. v. V. C. Khilnani and 2 others (PLD 1984 Karachi 127).
4. No one is present for the respondent to assist the court on his behalf. Record reveals that on the last two dates of hearing viz 28.01.2016 and 15.02.2016 respondent Farman and his advocate were ' absent. However, as an indulgence and in the interest of justice the matter was lastly adjourned as a last and final chance with a note of caution that in case no one appears for either of the parties, the matter would be decided on the basis of material available on record.
5. I have heard the arguments of learned counsel for the appellant and have gone through the material available on record.
6. From the record, it reveals that the appellant has only filed copies of memo. Of plaint of the aforesaid Summary Suit and last order dated 23.12.2010, whereby his application under Order XXXVII, Rule 4 of The Code was dismissed, but the copies of the application for leave to defend the suit, application under Section 151 of The Code, application under Order XXXVII, Rule 4 of The Code, counter-affidavit(s), if any, filed thereon and orders dated 26.11.2008, 10.10.2009, 17.11.2009 and decree dated 19.11.2009, passed by the Trial Court, have riot been submitted by the appellant, which adversely reflects upon him. However, perusal of the material available on record, reveals that on 27.08.2008 the aforementioned Summary Suit was filed by the respondent/plaintiff in the Court of District Judge, Mirpurkhas, which was made over to the Court of Ilnd Additional District Judge, Mirpurkhas; the defendant/ appellant appeared before the Trial Court and filed an application seeking leave to defend the suit under the provisions of Order XXXVII, Rule 3 of The Code, which was allowed with the condition that the defendant should furnish surety for the amount equal to that of the amount in suit within a period of 15 days vide order dated 26.11.2008 by the Trial Court; the defendant failed to fulfill the aforementioned condition and sought for extension of time twice on 11.12.2008 and 23.12.2008, which was allowed by the Trial Court lastly with the directions to the defendant to furnish surety within one weeks' time, but the defendant did not comply with the condition within time, he, however, on 05.01.2009 i.e, after about two weeks' submitted copy of an entry of DF-VII as surety, which was sent to the Mukhtiarkar, Mirpurkhas for its verification; in the meanwhile the plaintiff/respondent filed an application under Section 151 of The Code with the prayer not to accept the surety and decree the suit, which was disposed of by consent of the learned counsel for both the parties vide order dated 10.10.2009 by the Trial Court, whereby the learned counsel for the defendant had agreed to deposit security equivalent to the amount in suit, but instead of depositing the security, the defendant moved an application under Section 151 of The Code praying therein for re-calling the order dated 10.10.2009, which was passed by the Trial Court on the consent of the learned counsel for the parties; learned Trial Court after hearing the parties' counsel dismissed the aforesaid application and decreed the suit vide order dated 17.11.2009 and then such decree was drawn on 19.11.2009. It further reveals that after filing of execution application No,7 of 2010 re-Farman v. Muhammad Ishaq, by the decree holder/plaintiff, the appellant/defendant filed an application under Order XXXVII, Rule 4 of The Code praying therein for setting-aside the order dated 17.11.2009 and decree dated 19.11.2009, which was dismissed by the Trial Court vide order dated 23.11.2010, with the following observations:- "I have considered the arguments advanced by the learned counsel for both the parties and have also carefully perused the case file. It is revealed from the case file that the application for leave to defend filed by the defendant was allowed on 26-11-2008 subject to furnishing surety of equal amount of the suit within 15 days, but the defendant did not furnish the surety and sought time on 11-12-2008 vide Ex. 13, which was granted to him and then on 23-12-2008 the defendant again sought time vide Ex. 16, which was also granted and one week time was allowed to the defendant to furnish the surety and the case was fixed on 05-01-2009 and on 05-01-2009 the defendant after expiry of one week time submitted surety i.e, Form No, VII, which was sent for verification, but it was not accepted as claimed by the defendant. Record further revealed that when defendant had failed to furnish surety within time the plaintiff had filed an application under section 151, C.P.C.
With the prayer not to accept the surety and decree the suit, which was disposed of by consent of the learned counsel for both the parties vide order dated 10-10-2009, whereby the learned counsel for the defendant had agreed to deposit security amount equivalent to the suit amount i.e, Rs, 35,00,000/-, but inspite of depositing the security amount the defendant had moved an application under section 151, C.P.C. For re-calling the said order dated: 10-10-2009, which was dismissed and the suit of the plaintiff was decreed vide order dated: 17-11-2009 and such decree was also drawn on 19-11-2009. This shows that the order dated: 10-10-2009 was passed in presence and consent of the learned counsel for both the parties i.e, Plaintiff and defendant, but even then the defendant had failed to comply with the said order and due to his failure the suit was decreed vide order dated: 17-11-2009. Furthermore the surety submitted by the defendant was never accepted and sending the same for verification does not mean that the surety has already been accepted by the Court. In order to obtain relief under rule 4 of Order (XXVII, C.P.C. The defendant must show special circumstances warranting setting aside of the decree. No special circumstance has been shown in the instant application. Even the grounds which have been taken in the instant application have already been agitated by the defendant in his previous application under section 151, C.P.C., therefore, the instant application under Order (XXVII, rule 4, C.P.C. Stands dismissed with no order as to cost. "
7. From the above it reveals that only copy of an entry of D-Form-VII was filed by the defendant/appellant that too after the period allowed to him by extending the initial period twice on his request for furnishing surety, which was sent to the Mukhtiarkar concerned for its verification, but it was not accepted as surety by the Trial Court; learned advocate for the appellant on a query conceded that he has no document to substantiate his contention that the surety was accepted by the Trial Court; he also conceded that copy of Deh Form-VII was not filed by the appellant/defendant within the time provided to him for furnishing surety and he further conceded that the Order dated 10.10.2009 was based on the consent of learned counsel for both the parties, whereby the counsel for the defendant/appellant had agreed to furnish security of equal amount to that of the amount in suit, but he says that the said order was illegal. Although, the consent order can hardly be challenged or undone, yet in order to appreciate if the order requiring the defendant to furnish security, was in consonance with the law, the relevant provision where under the appellant/defendant sought for leave to defend the suit is Rule 3 of Order XXXVII of The Code, which reads as under:- "3. Defendant showing defence on merits to have leave to appear.--- (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
8. Sub-rule (2) of rule 3 of Order XXXVII of The Code itself provides "giving security" as one of the conditions for grant of leave to defend the suit and thus no exception can be taken to the order dated 10.10.2009, passed by the Trial Court on the consent given by the learned advocate for the defendant/appellant agreeing to furnish security, as it is provided by the law itself and as such the contention of learned counsel for the appellant that the order dated 10.10.2009 was illegal, being misconceived is untenable. Furthermore, in any evente, the order dated 10.10.2009 was admittedly passed by the Trial Court, on the consent of the learned counsel for the parties, which needless to say, is not open to challenge, in view of the well settled principles of law. One of such principles is that a party after having consented to a decree, cannot appeal against the same according to subsection (3) of Section 96 of The Code, which reads as under:--- "96. Appeal from original decree- (I)...............................
(2) .......................................................................
(3) No appeal shall lie from a decree passed by the Court with consent of parties. "
9. From the above I am of the opinion that there is no cavil to the proposition that the party challenging a decree or order based on the consent cannot be allowed to argue that it is illegal, as once consent order is passed by a Court, the parties cannot resile from it in view of the well settled law. It is also an admitted position that the appellant/defendant had not assailed in appeal the order dated 17.11.2009 and decree dated 19.11.2009, passed by the Trial Court, whereby the suit was decreed and it was after filing of aforementioned execution application, defendant/appellant filed an application under Order XXXVII Rule 4 of The Code on the same grounds, which were urged at the time of his earlier application under Section 151 of The Code praying for recalling the order dated 10.10.2009 and were turned down by dismissing his said application by the Trial Court vide order dated 17.11.2009, decreeing the suit.
10. In case of Allied Bank of Pakistan Ltd. (supra), on which the reliance was placed by the learned counsel for the appellant, it was held that:--- ".... Further, the order sought to be set aside is a consent order and in the circumstances stated above it cannot be set aside without the consent of the other side. The application is dismissed. "
11. In order to appreciate the question of maintainability of the instant application, the provision under which this application has been moved is Rule 4 of Order XXXVII of The Code, which is reproduced below :--- "4. Power to set aside decree. -- 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. "
12. Plain reading of the above provision of law envisages that after a decree is passed, the court may, under special circumstances, set-aside the decree and give leave to the defendant to appear and defend the Summary Suit; in this case the leave was already granted to the appellant/defendant to defend the suit, but the condition for grant of the leave to defend was not fulfilled, despite the fact that sufficient latitude was given to him and ultimately the Trial Court was left with no other alternate rather than to pass an appropriate order resultantly the suit was decreed.
13. In case of Allied Bank of Pakistan Ltd. (supra), relied upon by the learned counsel for the appellant, this court has held that:- ".... The words used are "special circumstances" which seem to be different from "sufficient" or "good cause" and are comparatively narrower in their applicability. Special circumstances exclude ordinary circumstances or circumstances which may happen every day. They indicate such circumstances which may be rare, exceptional and are not of common occurrence. Therefore, heavy burden is cast on the defendant to show that circumstances had arisen which besides being goad cause or sufficient cause were of special nature due to which he was unable to appear or fulfill the condition laid down in the order. Putting the defendant's case to test as required by rule 4, I find that no special circumstance has been made out."
14. In the said case of Allied Bank of Pakistan Ltd. (supra) leave to appear and defend the suit was granted to the defendant with the condition to furnish security for equal amount to that of the amount involved in the suit within a period of 30 days from the date of order, but the defendant failed to comply with the said condition and filed an application under Section 148 of The Code seeking extension of time, which was refused and the suit stood decreed by this Court and the application under Order XXXVII, Rule 4 of The Code seeking for setting-aside the aforesaid decree, was dismissed by this Court. In other case of Syed Sharaf Ali Shah (supra) relied upon by the learned advocate for the appellant, the defendant/respondent had furnished security, which was accepted by the Trial Court and Civil Revision Application filed against the order accepting the security, was dismissed by this Court. Thus both the case laws (supra) relied upon by the learned counsel for the appellant are not helpful to the appellant rather are against him.
15. In view of what has been discussed above, I am of the considered opinion that the appellant has failed to discharge the burden rested on him to establish his case attracting provisions of Order XXXVII, Rule 4 of The Code, and the learned counsel for the appellant has also not been able to point out any special circumstance for setting-aside the impugned decree. Manifestly, the appellant/defendant has tried his best to protract the proceedings of the case by making repeated applications and ultimately he filed the instant Civil Miscellaneous Appeal in the year 2010, obviously to deprive the decree holder of the fruit of decree in his favour as long as he could and thus the instant Civil Miscellaneous Appeal, being devoid of merit, is dismissed. There shall be no orders as to costs.