1980 PLP 280 (SCMR)

Date of hearing : 30th September, 1979. ANWARUL HAQ. C. J.‑This petition seeks leave to appeal against an order made by a learned Judge of the Lahore High Court dated the 22nd of April, 1979. whereby he has dismissed in limine a writ petition filed. by the petitioner to challenge his liability as a surety in the matter of a loan obtained from the Lahore Commercial Bank Ltd., Rawalpindi, by the late Ghulam Ahmad Siddiqui, predecessor‑in‑interest of respondents 3 to

8. The relevant facts are that the late Ghulam Ahmad Siddiqui had obtained a loan of Rs. 5,000 from the aforesaid Bank in 1965. In 1967 the Bank filed a suit for the recovery of the principal amount plus interest amounting to Rs. 7,567.60, impleading the petitioner also as a defendant. The defendant, did not, however, contest the suit. He neither appeared before the Court nor filed a written statement. On 1st June, 1967 a consent decree was made against the defendants in terms of a compromise entered into with the Bank by the widow of the debtor, acting on her own behalf as well as on behalf of her minor children. One of the terms of the compromise was that if two consecutive instalments, as agreed between the parties, are not paid, then the whole remaining amount shall become payable in lump sum by the execution of the decree. It was further stipulated that defendants Nos. 7 and 8 (i.e. the present petitioner and one other surety) would pay the decretal amount as guarantor, if the same is not paid by defendants Nos. 1 to

6. It appears that the defendants Nos. 1 to 6 defaulted in the payment of the instalments as stipulated, with the result that execution was taken out by the decree‑holder, and in execution of that decree tine property of the petitioner was ordered to be attached. Aggrieved by this order of attachment in execution of the decree, the petitioner filed a writ petition in the High Court contending that as the principal debtor had changed his position, the liability of the petitioner had come to an end, but this argument was not accepted by the High Court. The learned Judge has observed that all the points sought to be raised by the petitioner could have been raised in his written statement during the trial of the suit, and as he did not do so and waited for the implementation of the decree, he could not be permitted to come to the High Court in writ jurisdiction. Leave to appeal is sought on the grounds that the petitioner was not a party to the consent decree passed by the trial Court, and, therefore, he was not bound by the same; that, in any case, his liability had come to an end as the debtors had entered into a fresh contract with the Bank in derogation of the terms of the loan as originally guaranteed by the petitioner : and that the petitioner could not file an appeal against the consent decree as he had not contested the suit in the first instance. After hearing the learned counsel at some length we find there is no merit whatsoever in the submissions made by him. It is admitted that the petitioner had been cited as a defendant in the suit filed by the Bank for the recovery of the loan and interest accrued thereon ; and that the petitioner was properly served. However, for reasons best known to the Petitioner, he did not contest his liability, nor did he file a written statement. Even after the decree had been passed and it had been stipulated that: he would be responsible for the payment of the loan as a guarantor in case the decretal amount was not paid by the other defendants, he did not file any appeal against this judgment and decree‑ He did not even raise any objection in the executing Court against the attachment of his property. It thus becomes clear that he voluntarily failed to avail himself of the remedies available to him under the civil law. In these circumstances, he had obviously no locus standi to maintain a writ petition in the High Court to challenge the legality and validity of the orders made by the Civil Court in the main suit as well as during the execution proceedings. The learned Judge in the High Court is clearly right in saying that all the points sought to be taken on behalf of the petitioner in the High Court should have been taken before the appropriate civil Court. In any case, We do no` see how the, ability of the petitioner, as surety, could hay automatically come to an end simply‑ for the reason that the heirs of the debtor had agreed to pay the amount claimed by the Bank. In the circumstances, the petition is without merit and is hereby dismissed. Petition dismissed.