1987 PLP 1215 (CLC)

Muhammad Aslam one of Legal Representatives of deceased Muhammad Jan in person. Muhammad Mohsin Ansari for Respondent. Date of hearing: 31st January, 1987. In this first appeal the judgment and decree dated 23‑11‑1981 passed by the learned District Judge, Mianwali, in a suit instituted before him by the respondent against the appellant under Order XXXVII, C.P. C has been impugned. The facts necessary for the purpose of this appeal briefly stated are that the respondent‑Bank instituted a suit against the appellant before the District Judge, Mianwali, under order XXXVII, C.P. C. for recovery of a sum of Rs.18,995 together with interest thereon from the date of institution of the suit till realization of the amount. Costs were also prayed for in the plaint. Summonses were issued in Form 4 of Appendix ' B' of Code of Civil Procedure and an application was filed by the appellant for permission to appear and defend the suit. This application was resisted by the respondent and the same was dismissed by the learned District Judge who, on the same day, viz. 23‑11‑1981 passed the impugned judgment and decree. The appellant having died during the pendency of this appeal his legal representatives have been brought on record. Muhammad Aslam, son of the appellant, one of the legal representatives, has appeared and raised the following contentions: (1) That the application for leave to appear and defend the suit having been filed within time leave should have been granted to contest the suit. (2) That no loan had been taken by the appellant and this aspect of the matter has not been considered by the Court below. (3) That the appellant had not executed the promissory note and the mortgage deed which aspect has also been overlooked by the lower appellate Court. (4) That the suit was barred by time having been filed more than one year after the execution of the promissory note. I am afraid the contention raised on behalf of the appellant have no force. The learned District Judge vide the impugned judgment and decree has considered the assertions that the promissory note and the mortgage deed had not been signed by the deceased appellant and came to the conclusion that in view of the mortgage deed having been registered and the Registrar having endorsed on the deed that the appellant had been identified before him by an Advocate it could not be said that the defendant had not signed the promissory note or the mortgage deed in favour of the plaintiff‑Bank. I do not see any reason to differ with this finding of the learned District Judge which is based on legitimate reasoning especially when nothing substantial has been placed on record by the appellant to rebut the above position. Taking into consideration now the first contention I suffice by observing that mere filing of the application for leave to appear and defend the suit within time is no ground for granting permission sought for through the application. Yet another aspect of the matter which has prevailed with me to agree with the finding of the learned District Judge that the documents had been signed by the deceased appellant is the fact that in the application it has been averred that the documents were signed by Muhammad Aslam, the son of the appellant, whereas Muhammad Aslam himself is now getting out of that admission in the pleading as well by asserting that he also did not sign the documents. From the above it also emerges that the appellant and his son Muhammad Aslam, now his legal representative, have not come to the Court with clean hands. The last contention of the legal representative of the deceased appellant as raised today and in para. 4 (iii) of the grounds is also without force and has been raised under an erroneous assumption that the period of limitation for suits under Order XXXVII, C.P. C. is one- year. By virtue of Article 64‑A of the schedule to the Limitation Act the period of limitation for such suits is three years from the date the debt becomes payable. In view of the foregoing discussion I find no merit in this appeal which is accordingly dismissed with costs. H. B. T. /M‑41/L Appeal dismissed