The facts giving rise to this petition are that the respondent instituted a suit on 20-7-2000 for recovery of Rs,14,52,201 under Order 37, C.P.C. The petitioner/defendant was proceeded ex parte on 13-9-2000 and an ex parte decree was passed against him on 13-1-2001. During the pendency of the execution proceedings, the petitioner filed an application under Order 37, rule 4, C.P.C. On 14-5- 2001 for setting aside the ex pane decree. The execution proceedings were stayed by the learned Additional District Judge, Lahore on 17-5-2001. However, on the next date of hearing i,e, 31-5-2001 the learned Additional District Judge modified the earlier order and directed the petitioner to submit surety bond equal to the decretal amount on or before 13-6-2001. The petitioner filed a review application under section 114, C.P.C. Praying for review of the order dated 31-5-2001 in which he was ordered to submit the surety bond equal to the decretal amount. The learned Additional District Judge vide order dated 25-6-2001 dismissed the review application as well as the application for setting aside the ex parte decree on the ground that order dated 31-5-2001 for filing the surety bond had not been complied with.
2. Learned counsel for the petitioner contended that while staying the execution application, the condition for filing the surety bond equal to the decretal amount could not be imposed under Order 37, rule 4, C .P.0 .
Conversely the learned counsel for respondent defended the impugned order.
3. Order 37, rule 4 reads as under:-- "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."
The decree may be set aside under rule 4 the defendant showing special circumstances for his inability to appear and obtain leave to defend. The learned executing Court had stayed the execution proceedings. 1 find nothing in the language of the rule 4 where the condition of filing the surety bond can be imposed while staying the execution proceedings for determination of application under Order 37, rule 4, C.P.C. In the case of Yasin Industries and others v. National Bank of Pakistan 1989 ALD 443 the applicant for setting aside the ex parte decree was directed to deposit the decretal amount for determination of application to set aside the ex parte decree. It was held that the Court had no jurisdiction to impose such condition for determination of application of defendant for setting aside the ex-parte decree against him. In a similar case Syed Mahboob Hussain Shah v. Messrs Commerce Bank Ltd. 1982 CLC 20 while considering the effect of Order 9, rule 13 and Order 21, rule 23-A, it was observed as under:- "Undoubtedly the Civil Court had no jurisdiction to impose the condition for the deposit of the decretal amount for determination of the application under Order 9, rule 13, C.P.C. The learned District Judge also materially erred in not interpreting the relevant provision of law correctly and for that reason his orders are not sustainable."
The provisions of Order 9, rule 13, C.P.C. Are pari materia with Order 37, rule 4, C.P.C. In my view the learned District Judge could not impose the impugned condition for determination of the application for setting aside the ex parte decree.
4. For what has been stated above the impugned orders are set aside and the application of the petitioner for setting aside the ex parte decree shall be deemed to be pending and the same shall be decided by the learned Additional District Judge, Lahore in accordance with law.