1975 SCMR 520 (PLP)

Nemo for Respondents. Date of hearing: 23rd May 1975. HAMOODUR RAHMAN, C. J. The respondent bank filed a Civil Suit (No 263 of 1969) against the petitioner‑syndicate in the High Court of Sind & Baluchistan, Karachi, for the recovery of Rs. 53,401.75 under Order XXXVII of the Civil Procedure Code. The petitioner contested the suit but ultimately on the 8th September 1970, its counsel consented to a decree being passed for the entire amount of the claim with interest and costs. In accordance with this decree, a sum of Rs. 10.000 was to be paid within 15 days and thereafter the balance of the decretal amount was to be paid in instalments of Rs. 2,000 per month. The petitioner also gave an undertaking that be would not dispose of or otherwise encumber its properties. The properties were, however, not attached. The petitioner‑syndicate paid a sum of Rs.26,811 but thereafter defaulted in making payment of the balance of decretal amount. Execution proceed ings were, accordingly, initiated by the respondent‑Bank on the 4th September 1972. The petitioner‑syndicate filed objections to the execution of the decree on 11th August 1973, alleging that the decree had been satisfied, because, the parties had entered into a fresh agreement whereby the balance of the decretal amount was to be paid in installments of Rs.100 per diem instead of Rs.2,000 per month. No satisfaction of the decree was, however, entered either by the judg ment‑debtor or by the decree‑holder in the proceedings. During the pendency of the execution proceedings, the petitioner. syndicate also filed a suit on the 7th September, 1973, in the Sind & Baluchistan High Court for a declaration that the judgment and decree dated 8‑9‑1970 passed in Suit No. 263 of 1969 were a nullity as they had been obtained by fraud and misrepresentation. It is not clear in which proceeding, whether in the suit or in the execu tion proceedings, the High Court, on the 1st October 1973, called upon the petitioner‑syndicate to produce a surety within one month. In obedience to the order of the High Court the petitioner filed the necessary documents and produced the surety on the 13th October 1973, and the office of the High Court issued notice of the same to the respondent for the 13th November 197 3, but on this date, the surety was not entertained by the office of the High Court, even though the surety and the documents had been duly verified by the Collector, on the ground that the time allowed by the Court had already expired. The petitioner‑syndicate then moved the High Court for extension of time. This prayer was granted and time was extended upto 25th November 1974, for furnishing of surety. The petitioner again failed to comply and then applied for a further extension of time on 9‑1‑75, but this prayer was refused on 18th February 1975. The petitioner has now come up for special leave to appeal Learned counsel appearing in support of the petition has sought to challenge the order directing the furnishing of surety as being invalid under Order XXI, rule 23‑A of the Code of Civil Procedure but this objection cannot be entertained at this stage, as the petition filed on the 18th April 1973, if it is directed against the original order of the 1st October 1971, is hopelessly barred by time and there is no prayer for the condonation of the delay. If, on the other hand, this is an application for special leave to appeal from the order of the 18th February 1975, rejecting the prayer for extension of time to furnish surety then this is purely a discretionary order and there is no ground at all for this Court to interfere. There is nothing on the record to show that the order was either unjust or unreasonable or arbitrary. Two extensions had already been granted and it was only on the third occasion that the prayer for further extension was rejected. We feel certain that even on this occasion if the petitioner had produced his documents and surety, the High Court would have granted time if it was satisfied that the petitioner was sincere in his efforts in furnishing surety. If the petitioner really intends to furnish surety, he should move the High Court and convince it of its genuine difficulties in furnishing the surety within the time allowed. If the High Court is given proof of the fact that the petitioner is not merely playing for time but really means to furnish surety, it will, we feel certain, treat its case with due consideration. Subject to this, we see no reason to interfere. This petition is, accordingly, dismissed. Petition dismissed.