' This petition has been filed under section 115 of C.P.C. By the petitioner (one of the defendants) against the order dated 29-9-1980, passed by the learned Vlth Additional District Judge in an Execution Application No, 9 of 1976 (Suit No, 266 of 1969), whereby the three applications filed by the petitioner: (i) under Order XXXVII, Rule 4, C.P.C., (ii) applications made under section 18 of Limitation Act and (iii) the application filed under section 47, C.P.C. Were dismissed on the ground that application made under Order XXXVII, Rule 4, C.P.C. Was beyond the prescribed period and that no time could be extended under section 18 of the Limitation Act.
2. The facts briefly stated are that the respondent No, 1 the National Bank of Pakistan (hereinafter referred to as the plaintiff) filed Suit No, 266 of 1969 against the petitioner abovenamed and two others for recovery of Rs, 7,711.72 under Order XXXVII, C.P.C. The suit was decreed ex parte on 24th October, 1970 by the learned Additional District Judge, Karachi in the presence of the plaintiffs Advocate. The defendants served by substituted service, were called absent.
3. The defendant No, 3 the present petitioner moved the above-mentioned three applications on 24th February, 1979. The first application was made under Order -XXXVII, Rule 4, C.P.C., for setting aside th ex parte decree passed on 24th October, 1970 with a prayer that the petitioner may be granted leave to appear and defend the suit. The main pleas of the petitioner were that he was not served with the summons issued under Order XXXVII, C.P.C. That by reason of fraud practised by the plaintiff the petitioner had no knowledge of the said suit or the decree passed therein against him.
According to the petitioner he for the first time came to know of the Execution No, 9 of 1976 in February, 1978 and that he immediately thereafter moved the application for setting aside the ex parte decree and for grant of permission to appear and defend the suit.
' The second application was filed under section 18 of the Limitation Act with a prayer to enlarge the time for moving the application under Order XXXVII, Rule 4, C.P.C. For setting aside the ex parte decree for permission to appear and defend the suit.
' The third application was made under section 47, C.P.C. Praying therein for the dismissal of the execution application for the reasons stated in the said application.
4. Notices of the above application were issued to the plaintiff/respondent No, 1 and the case thereafter was adjourned from time to time.
5. The applications finally came up for hearing on 29th September,1980, on which date of petitioner's Advocate who was to argue the case was called absent. By the order passed on the same day all the abovementioned three applications were dismissed by the learned lower Court with the observations that the petitioner/defendant No, 3 was served with the summons through publication as every effort made to serve hill in ordinary course had failed and that the said defendant had avoided the service. The Court then proceeded to hold as follows:- even from perusal of his affidavit filed by him alongwith his application under section 18 of the Limitation Act, he came to know about the decree in execution in November, 1978 but he filed this application alongwith other applications on 24-2-1979 which is also beyond prescribed period, hence I am convinced by this single fact that the J.D. Is liable for his own negligence and laches hence no time can be extended when no explanation even for this period he has shown. With the result I am convinced that he has only applied to get some time to protract the proceedings, hence his all these applications stand rejected. No other objections are raised hence issue writ of attachment against the J.Ds. Subject to furnishing list of attachable property of J.Ds on costs."
(The underlines are by me).
4. Being aggrieved by the aforementioned order, the present revision application under section 115, C.P.C. Has been filed.
5. After hearing the learned counsel for the parties I find that the decree in the case having not been passed on the first hearing mentioned in the summons, the period of limitation prescribed for moving an application for setting aside the ex parte decree would not be governed by Article 164 of the Limitation Act. In the case of Rehman Weaving Factory v. I.D.B.P. PLD 1981 SC 21, the Honourable Supreme Court alter interpreting the relevant he held:-- "When any cause is shown for non-appearance at the first hearing whether non-service of 'summons' or any other sufficient cause, e.g. An accident on the way, an act of God or act of State beyond human control, only Article 164 would apply and limitation would commence from the date of the knowledge of the decree, when the 'summons' was not duly served; otherwise from the date of the decree. And the remaining cases, other than those of first hearing, would not be governed by Article 164."
' It is admitted fact on record that decree was not passed in the suit on the first date of hearing mentioned in the summons, and thus any application made for setting aside such a decree would not be governed by Article 164.
8. As regards the second contention raised on behalf of the petitioner, the same finds support from the case reported as P.N. Films Limited and another v. Overseas Films Corporation Limited AIR 1958 Bom.
10. In that case the learned Bombay High Court held that Article 164 does not apply to an application made under section 37, Rule 4, C.P.C. By the defendant against whom a decree was passed in a summary suit when he was precluded from appearing by the reason of the fact that leave to defend was not given granted to him. It was further held that such an application falls under Order XXXVII, Rule 4, C.P.C. And the Limitation Act has no default with any such application, therefor, the Article that would apply would be the residuary Article 181.
9. The result of the above discussion is that as the lower Court dismissed the application for setting aside ex parte decree on the erroneous assumption that the application was barred by time, the impugned order cannot be sustained.
' Accordingly while setting aside the impugned order, the case is remanded to the Court of the learned VIth Additional District Judge, Karachi with the direction that the three applications, filed by the petitioner should be heard afresh and be decided keeping in view the legal position that Article 164 of the Limitation Act is not applicable to applications made under Order XXXVII, Rule 4 of C.P.C.
For setting aside ex parte decree passed in summary suits which application will be governed by Article 181 of Limitation Act which provides a period of 3 years for moving the application when the right to apply accrued.
' In view of the fact that the case is disposed of on legal grounds, the parties are left to bear their own costs.