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--- O. XXXVII-Law Reforms Ordinance (XII of 1972), S. 3(a)-Leave to defend suit granted by consent. and time and amount of security also fixed by consent-Stating that in case of failure of furnishing security application for grant of leave "shall stand dismissed"-Appellant/. defendant failing to furnish security in' time but applying for further, time-Further time allowed-Appellant/Defendant again not complying with order arid making further application for extension of time- Court rejecting application and decreeing suit-Contention that High Court (on original side) before rejecting application of appellant and decreeing suit could have exercised discretion in favour of appellant by extending time for furnishing security-Held, in such a situation where conditions and time is fixed by Court with consent of the parties no order for variation or extension of time can be passed except by consent of parties.

Muhammad Bibi and 2 orhers v. Abdul Ghani and 2 otheis P L D 1973 Kar. 444 ; Jadabendra Nath Nishra v. Smt. Manorama Debya A 1 R 1970 Cal. 199 and Hukumehand v. Bansdal and others A I R 1968 S C 86- ref.

Habibur Rehman for Appellant.

Date of hearing : 6th December, 1982.

ABDUL HAYEE KURESHI, ACTG. C J.--The brief facts are that . the respondent filed a suit against the .appellant on the Original Side of this Court under Order XXXVII of the Civil Procedure Code for recovery of Rs. 1,18,000. The appellant/defendant made an application for grant of leave to defend the suit and such leave was granted on the condition that he should furnish security within two months. Such order was passed by consent. It seems that security was not furnished within the time allowed so that the appellant made an application on 26-5-1982 for extension of the period for furnishing security. The time was extended by one month but on condition that the security shall be in the form of bank guarantee. Such order was also by consent. It seems that the appellant was unable to comply with, that order and therefore, be made a further application for extension of time. Such application has been rejected and the suit has been decreed.

It would be profitable to reproduce the short order passed by our learned brother K. A. Ghani, J on 28-3=1982 which reads as follows

"By consent leave to defend is granted to the defendant on his furnishing security in the sum of Rs. 1,18,000 to the satisfaction of the Nazir of this Court within two months time. In case of failure to furnish security within the time allowed the application shall stand dismissed. The case to be put up for further orders after the expiry of the aforesaid period."

The above-quoted order would clearly show that leave to defend was granted by consent and the time and amount of security was also fixed by consent. The order also provided consequences that would follow default. It is stated that in case of failure in furnishing security the application for grant of leave "shall stand dismissed."

The grievance of the learned Advocate is that the Court could have exercised discretion in favour of the appellant by extending the time for furnishing security in spite of time and conditions have been fixed by the Court by consent of the parties.

We are clearly of the view that in cases of this nature when the conditions and time is fixed by Court with the consent of the parties no order for variation or even for extention of time can be passed except by consent. In, expressing this view we are fortified by a Iong line of decisions including the case of Muhammad Bibi and 2 others v. Abdul Ghani and 2 others (P L D 1973 Kar. 444) to which decision one of us was a party. The learned Advocate has relied on the case of Jadabendra Nath Nishra v. Sint. Manorama Debva (A I R 1968 S C 86) decided by Calcutta High Court. The attention of the learned Judges was invited to a decision of the Supreme Court of India in the case of Hukumchand v. Bansilal and others (A I R 1970 Cal. 199). 1n the decision by the Supreme Court .of India it was clearly stated that if time was allowed to the Judgment-debtor by consent to pay decretal amount, such time could not extended if such extension was opposed. The learned Judges of the Calcutta High Court .iistinguished the case decided by the Supreme Court of India and held that 4ime could be extended except in cases where the limit is fixed by statute. We gave read the judgment of the Supreme Court of India and could not find such words in the judgment of the Supreme . Court. In these circumstances the decision of the Supreme Court of India was also in general terms. We are therefore, of the view that the case relied on by Mr. Habibur Rehman does not advance-the case of the appellant.

Since the order fixing the time for furnishing security, was a consent order, it was not liable to be varied except by consent. Such consent was lacking and, therefore, the consequence of non-compliance with the consent order must inevitably follow.

We see no substance in this appeal which we dismiss in limine.

M.Y. M. Appeal dismissed.

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