1989 PLP 2016 (MLD)

AJMAL. MIAN, J--This High Court Appeal is directed against order dated 7-10-1987 passed by a learned Single Judge of this Court, in Suit/ No.424/19$8, while acting as the Banking Court, decreeing the suit in terms o Order 37, Rule 4 C.P.C. in the form of passing a preliminary decree in the sum of Rs.28,40,822.30, after excluding the penal interest of Rs.4,76,436.47.

2. The appellant, being aggrieved by the above judgment and decree, has filed the present appeal.

3. It may be observed that on 21-4-1988 a Division Bench of this Court had granted four weeks time to the appellant to furnish security in terms of Section 77 (5) of the Banking Companies (Recovery of Loans) Ordinance, 1979, but it seems that the appellant has not furnished the same. However, an application was file under Section 148 read with Section 151 C.P.C. for extension of time in May. 1988.

4. We have heard the learned counsel for the appellant on merits of the above appeal, as the case is listed for orders on the above application as well as for Katcha Peshi. It seems that the appellant had filed an application under Order 37 Rule 3 C.P.C. for leave to defend, which was dismissed in default on 14-12-19811. After that the matter was listed for final disposal. The appellant filed an application namely, C.MA. No.4357/1987 for setting aside the above dismissal order dated 14-12-1986. It seems that the above application was presented on or about 7-10-1987 and the hearing of the same was adjourned to 12th October; 1987. It further seems from the file of the suit that the above application was in fact taken up on the same day, on 7-10-1987 in' presence of both the learned counsel and after hearing the learned counsel for the parties, the learned Single Judge, by a separate order on 7-10-1987, dismissed the above application on the ground that it was filed after the expiry of limitation and even an application under Section 5 of the Limitation Act was not filed. After that the learned Single Judge disposed of the above suit by the aforesaid judgment and decree dated 7-10-1987 in the above terms.

5. In support of the above appeal, Mr. Syed Inayat Ali learned counsel for the appellant has urged as follows:- (i) That since the hearing of C.MA. No. 4357/1987 was fixed for 12-10 -1987, it could hot have been disposed of on 7-10-1987; (ii) that there was no proper service of the summons on the appellant.

6. In support of his above first submission, he has referred to the Court diary dated 7-10-1987 referred to herein above. It will suffice to observe that since the above Civil Misc. Application No.4357 of 1987 was disposed of after hearing both the learned counsel for the parties on 7-10-1987, the order passed whereupon cannot be said to be illegal. There is nothing on record to indicate that the learned counsel for the appellant did not agree to the disposal of the above application on 7-10-1987.

7. As regards the. above second contention that there was no proper service of summons on the appellant, it, may be observed that Mr. Syed Inayat Ali, learned counsel for the appellant, in support of the above submission, has pointed out that there was substituted service by publication and there was no justifiable ground for substituted service. In this behalf it will suffice to observe that the appellants had filed their application under Order 37 Rule 3 C.P.C. within the limitation period and after filing the same within the limitation period, they cannot urge that they were not served with the summons properly. They got their above application dismissed in default. 4 The appeal has no merits and therefore, it is dismissed in limine. H.B.T./T-56/K Appeal dismissed.