2010 PLP 3027 (YLR)

PERVAIZ INAYAT MALIK, J.--Through this appeal appellant Malik Muhammad Mureed assails the judgment and decree dated 26-7-1998 passed by learned Additional District Judge, Lodhran whereby suit for recovery of Rs.1,00,000 filed under Order XXXVII, C.P.C. by the respondent was decreed against the appellant.

2. This appeal was admitted to regular hearing on 28-9-1998 and on the same date the execution of the impugned judgment and decree was stayed subject to furnishing of adequate security equivalent to the decretal amount to the satisfaction of learned executing Court.

3. It is inter alia contended that the appellant never executed the so-called promissory note which has been made basis for the impugned judgment and decree while commenting upon background of the dispute between the parties, submits. that infact a sum of Rs.70,000 only was given by the appellant to the respondent for purchasing a tractor for the petitioner as they hail from same locality, from the scheme launched by the then Government and that is a case of clear misreading as well as non-reading. While pointing out certain discrepancies in the impugned judgment submits that neither the pro note nor receipt were duly stamped; the appellant was not confronted with the afore stated documents during the course of evidence. The P.Ws. are relatives of the respondents whereas scribe of the alleged document is his real brother and in fact a fraud was committed with the petitioner while concluding his submissions prays that the impugned judgment and decree may be set aside.

4. Conversely Mr. Bashir Ahmad Sial, learned counsel for respondent has vehemently opposed this petition and has raised preliminary objections qua maintainability of this appeal. It is inter alia contended that this RFA has been filed under section 96 of C.P.C., which is only maintainable against a decree and in the case in hand since no decree has been appended with this appeal, therefore, this appeal is incompetent and merits rejection on this score alone. Further submits that the impugned judgment was passed on 26-7-1998. Copy, was prepared by the office of learned Additional District Judge, on 8-6-1998 whereas this appeal was filed on 25-8-1998, therefore, it is barred by time and so-called ground for seeking condonation is also not tenable under the law as the medical certificate appended with this application prescribes ECG and other tests for the applicant, which admittedly were not undertaken by the petitioner. He concludes that in fact this medical certificate was bogus. With regard to non-compliance of order dated 28-9-1998 he submits that after getting the execution stayed he did not furnish any adequate security and since has not complied with the order of this Court, therefore, is not entitled to any relief.

5. Arguments heard. Record perused.

6. At the very outset, learned counsel for the appellant was confronted with the preliminary objections raised by learned counsel for the respondent, for which learned counsel for the petitioner has no answer. Upon further query of the Court as to whether the petitioner even filed any suit seeking cancellation of the promissory note and receipt on the basis whereof the impugned judgment has been passed. The learned counsel frankly conceded, however, submits that since a suit against him had already been filed by the respondent, the petitioner, there-fore, did not consider it appropriate to challenge the same before independent forum.

7. I find that all the points urged by learned counsel for the respondent find support from the record. This appeal is, hopelessly barred by time besides the petitioner has also not complied with the order dated 28-9-1998 passed by this Court.

8. I also find that although the appellant has in the prayer clause mentioned the decree dated 26-7-1998 but the same was never placed on record, without which no appeal is competent in view of provisions of section 96, C.P.C. Even on merits, the petitioner has no case at all. I am, therefore, not inclined to interfere in the well reasoned judgment passed by learned Court below. This appeal, therefore, is hereby dismissed for being time-barred, due to non-compliance of order dated 28-9-1998 being not maintainable as well as on merits, with costs throughout. H. B.T. /M-607/L Appeal dismissed.