Mst. Gulfama Vs Mst. Jamsheda

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No. 1951-P/2010

“Mst. Gulfama Vs. Mst. Jamsheda etc”

JUDGMENT

Date of hearing 28.01.2019

Petitioner(s) by: _____________________________.

Respondent(s) by: _____________________________.

IKRAMULLAH KHAN, J.- Through the instant Civil Revision petition, petitioner has challenged the impugned Judgment dated 19.10.2010, rendered by the learned Additional District Judge-II, Mardan, whereby, appeal filed by the petitioner against the Judgment/Order dated 03.06.2010, of the learned Trial Court, was dismissed.

02.In essence, an application under section 12 (2) CPC was filed by petitioner against an exparte Judgment and decree, rendered in suit No.363/1 dated 06.01.2006. The above mentioned application was dismissed by the learned Trial Court on the sole ground that the same was, on one hand, hopelessly time barred while, on other hand, the same exparte decree

dated 06.01.2006 was previously challenged by petitioner, through filing an application in term of Order-9 Rule-13 CPC, which was throughout dismissed by learned Trial Court as well as by the learned Appellate Court vide their Judgments dated 03.06.2010 and 29.06.2010 respectively.

03.It is admitted fact that prior to filing of instant application u/s 12 (2) CPC, petitioner had assailed the impugned exparte decree dated 06.01.2006 through an application under Order-9 Rule 13 CPC, which had dismissed upto Appellate Court below, but learned Court below has not properly appreciated the application of the petitioner in its true perspective.

04.The record reveals that

respondents/decree-holder had instituted a suit against the petitioner and others, legal heirs of late Muhammad Ali, the original dependent, in regard to suit property bearing khasra(s) No.329, 1621 and 1622, Khata Nos.228/229 to the extent of 02-Kanal and 12-Marla. An exparte decree dated 06.01.2006 had passed in favour of respondents/ decree-holder, but on the strength of the said decree, decree-holder had effected mutations No.2371 and 2372 dated 25.06.2007,

in regard to the whole property measuring 20- Kanal and 06-Marla.

05.Petitioner on one hand had

challenged the said suit mutations by instituting her suit bearing No.94/6 and on other hand, had challenged the exparte decree dated 06.01.2006.

06.Whether a person could not

challenge a mutation effected on the basis of decree of a Court, in regard to fraud committed during course of execution of mutation.

07.There is no bar to challenge any wrong mutation, which had adversely effected right of a person, through which a person has deprived of its legal rights in an immoveable property.

08.Rule-6 of Order-XX CPC prescribes contents of decree, which reads as:- “6. Contents of decree.- (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2)The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3)The Court may direct that the costs payable to one party by the other shall be set-off against

any sum which is admitted or found to be due from the former to the latter”.

09.So the findings of learned Courts below, as far as the prayer in the original suit was concerned had attained finality, which could not be challenged by filing an application u/s 12 (2) CPC as alternate remedy available to judgment- debtor under Order 9 Rule-13 CPC had already availed and not succeeded thereof, however, the provisions contained in section 47 of the CPC, could be availed and such objections shall be properly decided in the mode as a suit, which reads as:-

“47. Questions to be determined by the Court executing decree .- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2)The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.

(3)Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court”.

10.No person shall be deprived of his legal rights on mere technicalities. Prima facie, petitioner has a arguable case, but due to ill- advise, no proper application was filed on behalf of the petitioner.

11.This Court could not shut his eyes, just to deprive the petitioner from her proposed/expressed Legal right on ground of technicalities, therefore, this Civil Revision petition is accepted, the impugned Judgments are set aside and the application u/s 12 (2) CPC is converted to one under section 47 CPC and the case is remanded to the learned Trial Court to process the application u/s 47 in accordance with law.

ANNOUNCED.

JUDGE

Himayat