2024 PLP 577 (CLC)

Objection Case MUZAMIL AKHTAR SHABIR, J.

This order shall decide the office objection available at serial No. 43 of objection sheet which is in following terms: "Please avail proper remedy."

2. Petitioner has filed this petition in nature of writ petition to call in question order dated 14.07.2022 passed by learned Addl. District Judge, Lahore dated 16.11.2021 whereby while suspending the operation of ex parte judgment and decree passed by him against the petitioner in a suit for recovery of Rs.1,651,000/- in favour of the respondent No. 3 the Court has directed the petitioner to submit bank guarantee to the tune of Rs.1,000,000/- and surety bond to the tune of Rs.651,000/- subject to which operation of the impugned judgment and decree has been suspended with observation that, in case petitioner did not submit bank guarantee and surety bond as directed, operation of the judgment and decree shall not be considered to have been suspended. The petitioner seeks setting aside of the condition for depositing bank guarantee and surety bond in the impugned order. Operative part of the order is reproduced as under: "Instant application under Order XXXVII, Rule 4, C.P.C. is fresh. Be registered. Through instant application petitioner has sought for setting aside ex-parte judgment and decree dated 16.11.2021 passed by this court. Notice to the respondent/plaintiff/decree holder be issued for 20.07.2022. With this application an application for suspension of operation of impugned judgment and decree supported by affidavit has also been moved. Keeping in view, contentions raised by learned counsel for the petitioner and submissions mentioned in the application, subject to submission of bank guarantee to the tune of Rs.10,00,000/- and surety for remaining amount to Rs.6,51,000/- operation of impugned judgment and decree is suspended. It may be mentioned that if petitioner/defendant / judgment debtor did not submit bank guarantee and surety as directed, operation of judgment and decree shall not be considered to have been suspended."

3. Office was inquired as to what was the objection against filing of present writ petition and what alternate remedy was available, they have referred judgment reported as "Muhammad Khalil Ahmad v. Shabbir Ahmad" (2013 CLC 1121) under which, this Court has observed that application under Order XXXVII, Rule 4, C.P.C. to set aside the decree passed under Order XXXVII, Rule 1, C.P.C. was similar to the application under Order IX, Rule 13, C.P.C. filed for setting aside the ex-parte decree which application when decided, its final order was appealable and as necessary corollary final order passed under Order XXXVII, Rule 4, C.P.C. was also appealable, therefore, remedy of revision (which had been filed in the said case) would not be available.

4. Without commenting upon principles laid down in afore-referred judgment, it is observed that said decision relates to final decision of application under Order XXXVII, Rule 4, C.P.C. whereas in the present case application under Order XXXVII, Rule 4, C.P.C. is still pending with the Court on which notices have been issued and has not been decided, rather on an accompanying application for suspension of decree in the meanwhile, the afore-referred order for submission of bank guarantee or surety bond has been passed for suspension of said decree in the meanwhile, therefore, afore-referred order cannot be treated as a final order on application under Order XXXVII, Rule 4, C.P.C. and the above referred case law is distinguishable on facts and not applicable to the present case wherein only an interlocutory order has been passed on application for suspension of decree. Although it mentions that if the afore-referred condition is not fulfilled by the petitioner by submitting bank guarantee and surety bond, there shall not be any stay order against the decree, yet said order still does not have any finality attached to the same as the application for suspension of decree would still be pending and the Court has not observed that said application shall be deemed to be dismissed if the afore-referred condition is not met with. Consequently, neither afore-referred order was appealable nor civil revision against the said order would be available as finality is not yet attached to the said order and such an order has not been made appealable either under Section 104, C.P.C. or under Order XLIII, Rule 1, C.P.C. Besides, the afore-referred order does not amount to the case decided to be revisable in terms of section 115, C.P.C. which provides that where appeal is not maintainable, revision would lie against decision of the case, needless to mention that it is settled by now that for revision to be maintainable, finality is to be attached to the impugned order, which is missing in this case. Reliance in this regard is placed upon judgments reported as "Abdul Razzak and others v. Muhammad Ajmal Khan" (PLD 2008 Lahore 491), "Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Ltd. and 3 others" (2006 SCMR 21) and "Mian Muhammad Luqman and 5 others v. Farida Khanum and another" (1994 SCMR 1991).

5. In view of the above, neither appeal nor revision was maintainable against the interlocutory order requiring the petitioner to deposit bank guarantee and surety bond for suspension of the impugned ex-parte decree, therefore, constitution petition could be filed due to non-availability of equally efficacious alternate remedy and the objection raised by the office to avail appropriate remedy is misconceived and is accordingly over ruled. However, it is clarified that afore-mentioned observations do not preclude the Court to decide the matter of availability or non-availability of remedy of writ petition against the impugned order in the given circumstances of the case, which is to be decided on merits in accordance with law while hearing the main case.

6. In these circumstances, office is directed to number this petition and place the same for hearing on judicial side wherein question of maintainability of this petition and grievance raised by the petitioner shall be treated and decided on its own merits in accordance with law. MH/N-180/L Objection overruled.