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Civil Appeal No 182 of 1982, in Civil Petition No. 519 of 1982, decided pn 20th Dec4mber, .1982.

(On appeal from the judgment dated 16th February, 1982 of the Lahore High Court in R. F. A. No. 204 of 1981).

----Art. 185(3) read with Civil Procedure Code (V of 1908), S. 96 and O. IX, r. 13 Appeal against ex parte decree as well as against order refusing to set aside ex parte decree‑High Court refusing to interfere with order of trial Court declining to set aside ex parte decree but bestowing no attention nor giving any finding with regard to correct ness of decree‑Leave to appeal‑Granted to examine whether High Court should not have decided on merits appeal against ex parte decree.

-‑S. 96 read with O. IX, r. 13‑Appeal against ex parte decree‑Appellant, instead of separate appeals, filing one consolidated appeal against ex parte decree as well as order refusing to set aside such ex parte decree and paying full court‑fee requisite to challenge ex parte decree -Mere fact that only a consolidated appeal and not two separate appeals, were filed‑Held, only a technicality‑High Court refusing to interfere with order of lower Court declining to set aside ex parte decree but not deciding appeal on merits‑‑‑Case remanded for determination of appeal on merits.

Sh. Hamid Mukhtar, Advocate Supreme Court with Abdul Karim Advocate‑on‑Record for Appellants.

Mian A. Rashid, Advocate Supreme Court with Ijaz Ahmed Khan, Advocate‑on‑Record for Respondent.

Date of hearing : 20th December, 1982.

This appeal with the leave of the Court is directed against the judgment of a Division Bench of the Lahore High Court dated 16‑2‑1982 passed in R. F. A. No. 204 of 1981.

The relevant facts briefly are that the respondent, Habib Bank, Limited, had filed a suit for the recovery of Rs. 2,84,292 inclusive of the interest at the rate of 14 % and other expenses up to 31‑5‑1981 impleading the Appellants as the respondents in the suit titled as Habib Bank Limited v. Messrs Fatima Export Corporation etc. Despite issuance of the notice to the respondents in the said suit they failed to appear. and, consequently, an ex parte decree was passed on 6‑7‑1981 by Ch. Salahuddin Zaffar, learned Special Judge Banking II, Lahore, for an amount of Rs. 2,84,292 alongwith the interest and costs against them. The appellants herein accordingly filed an applica tion under Order XXXVII, rule 4 of the C. P. C. for setting aside the ex parte decree. This application, however, was rejected by the learned trial Court by its order dated 25‑7‑1981.

3. Dissatisfied with the result the appellant filed an appeal (R. F. A. No. 204 of 1981) before the Lahore High Court on 22‑12‑1981. In this appeal, both the judgment and decree dated 6‑7‑1981 as well as the order dated 25‑7‑1981, refusing to set aside the aforesaid ex parte decree, were challenged. It is submitted that full court‑fee prescribed for challenging the decree for Rs. 2,84,292 was affixed on the memorandum of appeal.

4. The High Court in its judgment passed on 16‑2‑1982 elaborately discussed the question whether the order refusing to set aside the ex parte decree (passed on 25‑7‑1981) required any interference and came to the conclusion that no legitimate exception could be taken to the said order and, therefore, refused to interfere with the said order of the learned Special Judge, by which he declined to set aside the ex parte decree. However, no finding was recorded with regard to the question whether the ex parte decree passed on 6‑7‑1981 could itself have been passed in view of the nature of the case and the evidence, if any, led in its support.

5. Mr. Hamid Mukhtar, learned counsel for the appellant, challenged the finding of the High Court refusing to interfere with the order dated 25‑7‑1981 of the learned Special Judge, whereby he declined to set aside the ex parte decree. He also submitted that the first appeal against the ex parte decree passed on 6‑7‑1981 had not been bestowed any attention and no finding given with regard to the correctness of the decree. Being in agreement with the finding of the High Court that the order of the learned Special Judge dated 25‑7‑1981 refusing to interfere with the order declining to set aside the ex parte decree was not liable to interference, therefore, granted leave to appeal only to examine the other question, namely, whether the learned Division Bench in the High Court should not have not decided on merits the first appeal against the ex parte decree (dated 6‑7‑1981), which was brought under challenge in addition to the appeal against the order of refusal to set aside the ex parte decree (dated 25‑7‑1981).

6. The learned counsel for the parties have been heard.

7. The learned counsel for the appellant has pointed out that in the memorandum of appeal it is clearly mentioned that both the original decree dated 6‑7‑1981 as well as the order dated 25‑7‑1981 refusing to set aside the decree were being challenged. The full court‑fee required for challenging the original decree was paid and that on the merits the same was not liable to be passed, in view of certain considerations which need not to be detailed here, in view of the order we propose to pass in this case.

8. The learned counsel for the respondents has pointed out that no separate appeal had been filed to challenge the order dated 25‑7‑1981 and ex parse decree dated 6‑7‑1981, and that the appeal against the said decree was time barred and the delay was not liable to be condoned. In this connec tion he referred to Shah Muhammad v. Ghulam and another (PLD1970SG196). He further submitted that the appeal against the ex parte decree passed on 6‑7‑1981 was pressed, otherwise some reference would have been made to this aspect of the case in the judgment of the High Court.

9. In our opinion, as the appeal filed against the ex parte decree dated 6‑7‑1981 was a first appeal, on which the full court‑fee had been paid, it was necessary for the Court to refer to it and consciously disposed it of. It is true that the appelant would have been well adverse to challenge the ex part decree dated 6‑7‑1981 and the order refusing to set it aside (dated 25‑7‑1981 by separate appeals, but the full court‑fee requisite to challenge the ex part decree (dated 6‑7-1981) having been paid on the memorandum of appeal the mere fact that only a consolidated appeal and not two separate appeals were submitted is merely a technicality. No doubt, the validity of the ex part decree does not appear to have been pressed before the learned Judges of the High Court but the cause before them was a first appeal. It was necessary for the Court to have disposed it of, especially when a ground also was taken in the memorandum of appeal to the effect that "on merits, the respondents had no case and there was not an iota of evidence against the appellant that they were liable to pay any amount to the respondent." It, therefore, appears to us to be necessary to remand the case to the High Court for determination of this question.

10. As for the submission of the learned counsel for the respondents that the appeal against the original decree would be time‑barred we would observe that this is a question which should, in the first instance, be con sidered by the High Court in the light of the submission of application for condonation of delay, which may be made in this connection.

11. The result is that this appeal succeeds and the judgment of the High Court dated 16‑2‑1982 is set aside and the case remanded back to it for determination on merits of the appeal of the appellant herein, which was directed against the ex parte decree dated 6‑7‑1981. The parties, however, will be left to bear their own costs.

Appeal allowed.

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