Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII

Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII

Civil Procedure Code (V of 1908)-------O. XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of pro note---Leave to appear and defend the suit granted subject to furnishing of security---Security was furnished twice, but later on surety appeared and made a statement that he be allowed to withdraw---Surety was allowed to withdraw and defendant was directed to furnish a fresh security but when third time surety seeking permission to withdraw was allowed by Court defendant was directed to furnish fresh security in a matter of hours---Defendant failed to do so and suit was decreed--Validity---Question whether a surety having once given an undertaking to the Court on terms of an order requiring furnishing of such security could be allowed to withdraw was not raised by any of the parties hence required no consideration---Surety was furnished but Trial Court without reference to any of the parties allowed the surety to withdraw having done so, it was incumbent upon Trial Court to give reasonable time to defendant to arrange and furnish fresh security in terms of the leave granting order---Record was apparent that case was adjourned on several occasions for recording evidence of defendant but same had not been produced---Case was remanded to Additional Session Judge, in view of conduct of defendant with direction to fix only one date for recording entire evidence after furnishing of fresh security by defendant and in case surety is not furnished the appeal would be deemed to have been dismissed. Mian Shah Abbas for Appellant. M.R. Anwar for Respondent. Date of hearing: 1st November, 2006. JUDGMENT MAULVI ANWARUL HAQ, J.--- This case has rather a chequered history. On 15-9-2001 the respondent filed a suit for recovery of Rs.10,50,000 against the appellant under Order XXXVII, C.P.C. with reference to a pro note executed by the appellant promising to pay the said amount on demand. The appellant was served in the manner prescribed. He put in appearance and filed an application for leave to appear and to defend. The leave was granted with consent on 3-11-2001 subject to furnishing of security in the suit amount. The security was furnished and the fact was noted…

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