MAULVI ANWARUL HAQ, J.- A suit filed by respondent against the appellant for recovery of money was decreed by a learned Single Judge of this Court on 4.7.2000. On 16.4.2001 an application was filed under Section l2 of Act XV of 1997 for setting aside the said decree, It was stated in the application that correct address of the appellant had not been stated in the plaint and it was not served in accordance with law. According to the appellant it was towards end of March, 2001 that appellant got the knowledge and filed the said application.
2. The application came up before the (earned Single Judge on 19.2.2001, when it was heard. The learned Single Judge was pleased to hold that appellant had in fact been served and that application in any case was time-barred. The application was accordingly dismissed.
3. Learned counsel for the appellant contends that to the knowledge of the respondent registered office of the appellant stood shifted to another address but still old address was given and as such it cannot be said that the appellant was duly served in the suit filed by respondent. Learned counsel had drawn our attention to some documents, copies whereof have been appended with this F.A.O, and we were inclined to further consider the said plea being taken n behalf of the appellant; however, second reason stated by learned Single Judge for disallowing the application i.e. It is time-barred constitutes a hurdle in the consideration of the said plea. Before proceeding further we may state here that although the exact date of knowledge was not mentioned in the said application (C.M. 355-B of 2001), before us, it has been stated that the appellant had acquired knowledge of the decree on 17.3.2001. We have already stated above that the application was filed on 16.4.2001. Section 12 of the said Act XV of 1997 is in the following terms:- "Power to set aside decree. - In any case in which a decree is passed against a defendant under subsection (4) of Section 9 he may, within twenty-one days of the date of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order to set it aside; and if he satisfies the Banking Court that he was prevented by sufficient cause from making an application under Section 9, or that the summons was not duly served, the Court shall make an order setting aside the decree against him upon such terms as to costs, payment into Court or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order."
Learned counsel argues that said period of limitation of 21 days prescribed in said Section 12 would be applicable only to the case where a decree has been passed after due service of the defendants. According to the learned counsel in the second case i.e. Where the defendant has not been duly served it will be the period of 30 days provided in Article 164 of the Schedule to the Limitation Act, 1908, which was applicable.
4. To further elaborate the said arguments the learned counsel contends that 'comma' and word 'or' is disjunctive providing for two separate situations. Relies on the case of Ebrahim Brothers Limited v. Wealth Tax Officer (PLD 1985 Kar. 407) and with reference to 'Words and Phrases Judicially Defined by American Courts' urges that 'comma' is a point used to mark the smallest structural divisions of sentence, 'or' a rhetorical punctuation mark indicating the slightest possible separation in ideas or construction. The precise contention is that comma coupled with 'or' should be read to mean that not only two different situations are catered for by said Section 12 but also two separate periods of limitation stands provided for applications to be filed for same purpose in the said situations. Learned counsel, thus concludes that the limitation period for the application filed by his client to set aside the decree in question would be 30 days and as such the application would be within time.
5. We have given some thought to the said contentions of the learned counsel. There can possibly be no cavil with the proposition that the said 'comma' and 'or' do separate two different situations.
These are (i) where a decree has been passed after due service; and (ii) where summons has not been duly served. We are unable to bring ourselves in accord with further arguments of the learned counsel that a separate period of limitation for each of the said two situations is to be read in the said Section 12. To our mind on plain and simple reading of Section 12 it provides one period of limitation i.e. 21 days. However, date of commencement of said period of limitation is different in the said two situations, In case of decree that has been passed after due service of summons the said period of 21 days shall start from the date of decree itself; while where the summon has not been duly served then said period of 21 days shall start from date of knowledge, It will further be noticed that Section 12 continues on to further distinguish the two situations, In case where the summons has been duly served, the applicant has to satisfy the Banking Court that he was prevented by sufficient cause from making application under Section 9. While in the second situation provided for in the said section the applicant has only to show that the summon was not duly served.
However, both these situations are governed by the same period of limitation i.e. 21 days, laid down therein, In the present case it stands established on record that application was filed beyond the period of limitation i.e. More than 21 days after the date appellant admittedly acquired knowledge of the decree. Learned Single Judge, therefore, very correctly held that the application is barred by time. This F.A.O, is accordingly dismissed in limine.