Law: Code of Civil Procedure of 1882

Section: OrderXXXVIIRule4

THIS JUDGMENT DELIVERED BY: MAULVI ANWARUL HAQ, Justice:------------------- On 16-4-2004 the respondent filed a suit for recovery of Rs.35,000 against the petitioner under Order XXXVII, C.P.C. On the basis of a pro note. Summons were issued in the manner prescribed. The service was effected by proclamation in the newspaper. The petitioner failed to appear and to apply for leave to defend the suit which was accordingly decreed ex parte on 1-12-2004, after recording the ex parte evidence, by a learned Additional District Judge, Sahiwal. On 3-6-2005 the petitioner filed an application under Order XXXVII Rule 4, C.P.C. For setting aside of the said decree. The application was dismissed by the learned Additional District Judge on 19-1-2006. 2. Learned counsel for the petitioner contends that no limitation having been provided for filing of application under Order XXXVII, Rule 4, C.P.G., the matter was to be governed by Article 181 of the Limitation Act, 1908 and the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while dismissing the application as barred by time. Learned counsel for the respondent, on the other hand, cited the case of Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631) to urge that the limitation for an application of the instant nature is 30 days and the same has been correctly dismissed as barred by time. He vehemently contends that even if it be assumed that the application is within time, it does not fulfil the criteria laid down in Order XXXVII Rule 4, C.P.C. For setting aside of decree. The precise contention is that neither a plausible defence has been disclosed in the said application for a separate application has been filed within the time prescribed by law to seek leave to appear and to defend the suit. It is in the application itself that the petitioner was aware of the decree on 3-5-2005. Learned counsel for the petitioner rejoins to urge that the application could have been filed after setting aside of the decree and the limitation would be 10 days from the date of setting aside of the ex parte judgment and decree. He cites the cases of Habib Bank…

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