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Civil Miscellaneous Application No.4506 of 1986 in Civil Suit No.569 of 1983 (Banking), decided on 22nd December, 1985.

---S.151 & O.IX, R.13--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.6--Ex parte decree, setting aside of--Court decreeing suit ex parte under Banking Companies (Recovery of Loans) Ordinance, 1979 and later, on application of defendant, while setting aside ex parte decree, imposing condition for furnishing security to extent of decretal amount within one month--Defendants having failed to furnish security within prescribed time making application for extension of time and same granted by Court for two weeks by way of last chance--Defendants, in circumstances, could not argue that the condition imposed while setting aside ex parte decree was illegal and liable to be recalled--Order imposing condition having attained finality after lapse of time for filing appeal and expiry of period originally fixed as well as extended period, defendants, held, could not at such belated stage invoke inherent jurisdiction of High Court for recalling condition legally imposed--Application under S.151, C. P. C. obviously made with ulterior motive in order to avoid consequences of the failure to furnish security--Discretion to impose condition upon ordering setting aside of an ex parte decree was recognised by R.13 of O.IX, C.P.C.--Neither there was any abuse of process of Court nor ends of justice made it necessary to, recall the direction given by Court.

M.L. Shahani for Defendants.

By this application made under section 151 C P C the Defendants have prayed that the condition of depositing the decretal amount imposed by the Court by order dated 31st March, 1985 passed by this Court (Mr. Justice Saleem Akhtar) while setting aside ex parte judgment and decree dated 30th May, 1984, be recalled.

It is relevant to mention here that the above suit was brought for recovery of Rs.10,23,450 with costs and interest against M/s Sainjees Restaurant and Motel Hyderabad who were sued through their partners Muhammad Yusuf Talpur and Nawab Abdul Ghani Talpur. The suit was filed under the Banking Companies (Recovery of Loans) Ordinance, 1979. The decree was passed ex parte by judgment dated 30th May, 1984. An application however was filed by the Defendants under Order 9 Rule 13 C P C on 1-10-1984 for setting aside the judgment and decree passed as above mentioned, on the plea that they were not served with the summons. The learned Judge who heard the said application accepted the application and being of the opinion that there was no proper and due service of summons on the defendants No.1 and 2 set aside the ex parte judgment and decree but while doing so imposed the condition that the defendants No.1 and 2 shall furnish security to the extent of the decretal amount within one month to the satisfaction of the Nazir of this Court.

The Court further directed that the Defendants would file application for leave to defend within 10 days from the date of the passing of the said order and the same shall be put up for consideration after the security had been furnished. The case thereafter came up before the Court on 19th May, 1985 when Mr. Mir Muhammad Shaikh, Advocate for the defendants No.1 and 2, filed an application (C.M.A. No.2360/857 praying therein that the Court may extend the time for furnishing security by one month as the same could not be furnished earlier due to paucity of time and the said learned Advocate could not contact the Defendants in time. This application came up before the Court in the presence of both the Advocates on 29th September, 1985 when it was adjourned to 24th October, 1985. On the last mentioned date the Court after hearing the learned Advocates for the parties passed the following order:-

"24-10-1985: This is an application for extension of time for furnishing security which was ordered to be furnished within a month. It is since then a long time has expired but in the interest of justice as the defendants reside in the interior of Sind and the counsel could not contact them within the time stipulated in the order, I allow two weeks' time to furnish the security as a last chance. No further time will be extended.

To come up on a date to be fixed in Office after two weeks."

On 8-12-1985 when the matter was placed before the Court for further orders as security had not been furnished by the defendants, at the request of Mr. Mir Muhammad Sheikh, Advocate for the defendants the case was adjourned to 15-12-1985. The suit on the adjourned date, was fixed for passing of order in view of non-compliance of the orders, dated 31st March, 1985 and 24th October, 1985 referred above. On 15-12-1985 on a request made by Mr. Abdul Hafeez Lakho holding brief for Mr. M.L. Shahani, Advocate the case was adjourned to 22-12-1985 on ground that Mr. M.L. Shahani was out of station.

In the meantime on 12-12-1985 the application (C. M. A. No.4506/85) was made under section 151 C P C for recalling the condition imposed by the learned Judge by order dated 31st March, 1985 while setting aside the ex parte judgment and decree.

Mr. M. L. Shahani, learned counsel for the Defendants in support of the' application made the following submissions:

(i) The learned Judge while setting aside the ex parte decree imposed condition mentioned above without giving any reason.

(ii) That the decree ex parte passed was illegal and that the same was set aside after being satisfied that the defendants were not duly served. According to the counsel condition imposed for furnishing security amounted to conferring sanctity to an illegal order which could not have been done.

(iii) That the proceedings without notice in law are nullity and therefore the ex parte decree passed was a nullity and no condition ought to have been imposed while setting aside the same.

I have heard the learned counsel on the above mentioned grounds. I am however of the opinion that the pleas raised as above are not available to the defendants who by their own conduct conceded to the order passed by the learned Judge imposing the condition while setting aside the ex parte judgment and decree by order dated 31st March, 1985. In this respect I have already referred to the defendants' own application filed on 19th May, 1985 (C.M.A. No.2360/85) in which the defendants' own counsel prayed for extension of time for furnishing security by one month. Subsequently on 24th October, 1985 the learned Court allowed the defendants two weeks time to furnish the security as a last chance and it was observed that no further time will be extended. The present application was not filed until 12-12-1985. The defendants in these circumstances having themselves prayed for extension of period for one month by application made on 19th May, 1985 on which application the Court on 24th October, 1985 granted them two weeks further time by way of last chance, it now does not lie in the month of the defendants to argue that the condition imposed while setting aside the ex parte decree was illegal and is liable to be recalled. Obviously the defendants have been trying to gain time and protract the proceedings. Without going into the question that the order passed on 31st March, 1985 setting aside the ex parte decree attained finality on the failure of the defendants to furnish security within the time allowed the Court by thus has become infructuous and, I may observe that if the defendants were not satisfied with the imposition of the condition, they ought to have filed an appeal against the said order. They having allowed the said order attain finality after lapse of time for filing appeal, and expiry of the period originally fixed as well as the extended period, at this belated stage cannot invoke the inherent jurisdiction of this Court for recalling the condition legally imposed. It is obvious that this application has been made with ulterior motives in order to avoid the consequences of the failure to furnish security by orders passed in the presence of the defendants' own Advocate.

The discretion to impose condition upon ordering setting aside of an ex parte decree is recognised by Rule 13 of Order IX C.P.C. itself. Neither there is any abuse of the process of the Court nor ends of justice make it necessary to recall the direction given b the Court.

For the above reasons I do not find it necessary to go into the submissions made as above mentioned by the learned Counsel as the same cannot be raised before this Court at this stage. The remedy of the defendants, if any, was elsewhere. The application is accordingly dismissed.

S.Q./A-53/K Application dismissed.

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