' MUNIR A. SHAIKH, J.---This appeal is directed against order, dated 22-4-1992 passed by Special Judge, Banking by which application filed by the appellant under Order 37, Rules 4 and 3 read with sections 151 and 12(2), C.P.C., has been rejected.
2. M/s. National Bank of Pakistan hereinafter called plaintiff filed suit for recovery of an amount of Rs,22,76,653.90 against M/s. Mudhwal Engineering Complex, a partnership firm and two others namely Malik Shaukat Zaman and Malik Muhammad Nazir, the present appellant hereinafter called the defendants. The said defendants were duly served in the suit. Defendants 1 and 2 appeared through their counsel before the Court on 23-5-1990 but none appeared on behalf of the present appellant who was impleaded as defendant No,3. No application was made on behalf of any of the defendants for grant of leave to appear and defend the suit.' The Learned Special Judge Banking passed preliminary decree through judgment dated 8-7-1990 directing the defendants to make payment of the decretal amount within six months. On their failure to comply with this direction the plaintiff/decree-holder moved (C.M. No,49/B/91) for passing final decree. In this application notices were issued to the defendants/judgment-debtor for 8-5-1991. Learned counsel for the defendants/judgment-debtor appeared before the Court on the said date and conceded that they had not made payment in terms of the preliminary decree. The Court through judgment dated 11- 10-1991 made the preliminary decree absolute and passed final decree.
3. On 21-4-1992, the appellant moved C.M. No,112/B/92, under Order 37, Rules 3 and 4 read with sections 151 and 12(2), C.P.C. For setting aside the decree passed against him. It may be significantly mentioned here that in this application no averments were made that the applicant was not served or that he was prevented from any circumstance beyond his control to appear before the Court and make an application for grant of leave to appear and defend the suit. It was pleaded that fraud had been committed on him by Manager of the Bank who himself obtained loan in his name. The factum of obtaining loan by the applicant thus in this manner was denied.
4. This application has been dismissed by the learned Special Judge Banking through the impugned order. It may be mentioned here that after the dismissal of this application, the appellant moved another application on 28-4-1992 (C.M. No,118/B/92) in which he admitted his liability to pay the decretal amount and requested the Court to allow him time to make payment after selling the mortgaged property. This application was rejected through order, dated 27-5-1992.
5. Learned counsel for the respondent has raised a preliminary objection to the effect that the appeal is barred by time as such the same was liable to be dismissed. The impugned order was passed on 22-4-1992. Application for supply of certified copy of it was made on 23-4-1992. The copy was ready for delivery on 20-5-1992 but it was received by the appellant on 25-5-1992.
Learned counsel for the respondent when questioned admitted that if the period from 23-4-1992 to 25-5-1992 is excluded from computation of period of limitation as the time spent for obtaining certified copy of the judgment as contemplated under section 12 of the Limitation Act, the appeal is within time. He, however, argued that under the law time beyond the date on which the copy was ready for delivery cannot be excluded.
6. The argument would have force provided the appellant was intimated by the copying agency to take delivery of the copy on a specified date. The appellant in his application under section 5 of the Limitation Act has averred that he approached the copying agency for delivery of copy on 20-5- 1992 but it was not delivered to him on the ground that the same was not ready. He has also averred that no intimation was given to him by the copying agency about the date on which the appellant was required to take delivery of the copy. This application is supported with an affidavit.
There is, no counter-affidavit filed by the respondent. The respondent has not even filed reply to the said application to dispute the correctness of the said averments. In this view of the matter, the benefit of period from 23-4-1992 to 25-5-1992 for computation of period of limitation is to be given and that being so the appeal is within limitation. The objection is repelled.
7. Coming to the merits of the case, since it was not the case of the appellant that he was not served before passing the preliminary ex parte decree or that he was prevented on account of any circumstance beyond his control to appear and make an application for grant of leave to appear and defend the suit, therefore, application for setting aside ex parte decree was not maintainable.
As has been pointed out, learned counsel for the judgment-debtor appeared at the stage of passing of the final decree but did not raise any objection against preliminary decree already passed.
8. As regards the allegation that the Manager of the Bank played fraud upon the appellant as he did not obtain the loan, which in fact was obtained by the Manager himself, suffice it to say that these averments formed the basis of his defence which could be raised after obtaining leave to appear and defend.
9. Learned counsel for the appellant, faced with this difficulty tried to overcome it by arguing that in view of these allegations the application under section 12(2) C.P.C. Was maintainable because allegation of fraud had been made. These allegations relate to the events which took place long before the filing of the suit and relate to the very transaction of loan as such on the basis of these allegations, it could not be argued that fraud was played upon the Court in relation to the proceedings for obtaining ex parte decree. If the appellant thinks that he has been wronged due to fraudulent act of the Manager, he may seek his remedy against him as available under the law.
The application under section 12(2), C.P.C. Was also not maintainable in these circumstances.
10. For the foregoing reasons, we find no force in the appeal which is dismissed with no order as to costs.