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Suit No. 583 of 1977, decided on 11th March, 1985.

---O. IX, r. 13--Limitation Act (IX of 1908), S. 5--Ex parte decree- Application for setting aside such decree filed beyond limitation- Application for condonation of delay--Reference made to various step taken by Advocate in wasting time in inspecting record firstly of execution file and then of suit file without filing application for setting aside decree--Such steps, held, could not be treated as steps diligently taken so as to explain good cause for delay.

---O. V, r. 20--Substituted service--Effect--Where defendant could not be served in ordinary course, they were, held, duly served by substituted service which was due service within meaning of law--Such service was fully justified.

--O. IX, r. 13--Limitation Act (IX of 1908), S. 5--Condonation of delay--Sufficient cause--Meaning--Party seeking condonation of delay was required to explain delay of each day--Application under O. IX,. r. 13, C . P. C . for setting aside ex parte decree was barred by time- Application under S. 5, Limitation Act, 1908 could not be granted as neither delay of each day was explained nor sufficient cause had at 611 been made out--Sufficient cause would mean circumstances beyond control of party.

Ismat Tariq v. Shaukat Ali 1974 S C M R 158; P L D 1964 S C 236; P L D 1977 S C 102; 1968 S C M R 537; 1970 S C M R 25 and 1972 S C M R 623 ref.

Ali Murtaza Hussain for Plaintiff.

Hamza I. Ali for Defendants.

A preliminary decree was passed on 4-4-1979 in the suit brought by the plaintiff-Bank under Order XXXIV of C.P.C. The final 'decree was subsequently drawn up oh 18-1-1981. The proceedings took place against the defendants after summons were served upon them by publication as earlier attempts made to serve them in the regular course proved futile. According to the defendants for the first time Shamsur Rehman, the defendant No.l on coming to know that a bailiff from some Court has been making inquiries about his whereabouts, he immediately engaged Advocate who informed him after making inquiry that a notice has been issued by the Special Court of Sind (Banking), Karachi in Execution Application No. 1 of 1983. It is the case of the defendants that an application for inspection of the file of Execution Application NO-1 of 1983 was made on 26-3-1983. It however, appears that neither the Advocate nor the defendants followed the application but the Advocate at his own convenience inspected the file on 10-4-1983. The defendant has alleged that on that day for the first time he came to know that the said execution application had been instituted pursuant to a preliminary decree, dated 4-4-1979 and that a final decree, dated 18-1-1981 had been passed by this Court in the above suit: Instead of taking any step to move any application forthwith for setting the decree, the defendants then proceeded to make yet another application for inspection of R & P of the suit. Their Advocate made such inspection only after a lapse of more than 9 days, i.e. on 21-4-1983. Even then no application was moved without losing a single day and instead application was filed under Order IX of rule 13, C.P.C. on 28-4-1983

2. It is significant to note that the application under Order IX, rule 13, C.P.C. is dated 28-4-1983 whereas the application under section 5 of Limitation Act bears the date as 27-4-1983. No explanation has been given for following the time to pass from 24-3-1984 till 27-4-1983 when application under section 5 of Limitation fact was made ready and for a further loss of one day more in filing the two applications. It would be remembered that the above two applications were filed on 28-4-1983. Reference made to the various steps taken by the Advocate in wasting time in inspecting the record firstly of the execution file and then of R&P of the suit without filing application for setting aside the decree cannot be treated as step diligently taken so as to explain any good cause for the delay.

In the circumstances of the case and perusal of the various summons issued by the Court it is obvious that the defendants could not be served in the ordinary course and that in the circumstances they were duly served by substituted service which is due service within the meaning of law.

3. Mr. Hamza I. Ali, Advocate argued that till third week of March, 1983 the defendants were not residing at the address given in the plaint. I may however, refer to only two of the reports of the bailiff, one submitted on 13-2-1978 and the other on 15th May, 1978 which not only show that the defendants were residing at the said address but the defendant No.4 Mrs. Shakila Rehman who was available at the address 61, Al-Hamra Housing Society, Karachi on 15-5-1978 refused to accept the summons. It is trot necessary to refer to the other reports as in my opinion in the circumstances of the case, the service upon the defendants by publication made on 9--2--1979 (Morning News) was fully justified. The defendants, were, therefore, duly served.

4. Moreover, in order to avail of the provisions of section 5 of Limitation Act, the defendants are required to explain delay of each day. This they have failed to do. Though according to the findings reached by me as above the defendants were served by summons on 9-2-1979, but even after the bailiff came to them to serve with notice of execution application on 24--3-1983, they did not file application for setting aside ex parte decree without loss of time application for was filed by them only on 28-4-1983 and thus there is no explanation for the delay for the period from 24-3-1983 to 27-4-1983 (when application under section 5 of Limitation Act was made ready) and for the loss of one more day cause in filing the applications on 28-4-1983.

Lack of diligence on the part of the Advocate and/or the litigant has never been considered as ground for condoning the delay Ismat, Tariq v. Shaukat Ali 1974 S C M R 158. Before concluding I may also point out that sufficient cause within the meaning of section 5 of Limitation Act means circumstances beyond the control of the party P L D 1964 S C 236 and P L D 1977 S C 102. No such cause has been shown by the appellants.

Further, the delay of each day must be explained as valuable rights are created by lapse of time, this the 'defendants have failed to do 1968 S C M R 537, 1970 S C M R 25 and 1972 S C M R 623, may be referred.

5. For the reasons stated above I find that the application under order IX, rule 13, C.P.C. for setting aside ex parte decree is barred by time and the application moved under section 5 of Limitation Act cannot be granted as neither delay of each day has been' explained nor sufficient cause has at all been made out.

6. The upshot of the above discussion is that the application under section 5 of Limitation Act is dismissed, consequently the application under Order IX, rule 13, C.P.C. also fails as barred by time.

A.A.

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