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Civil Revision No. 752 of 1983, decided on 22nd May, 1984.

---O.XXII, rr. 2 & 3--Appointment of legal representatives of deceased decree-holder-- Deceased obtained a decree against petitioner--Petitioner applying for setting aside of decree on ground that decree was obtained by practising fraud on Court--Trial Court accepting application declared same as null and void--Appeal against said order filed by widow of deceased was accepted by appellate Court on ground that at time when petitioner applied for setting aside of decree, decree-holder was not alive and his legal representatives had not been brought on record--Held, appellate Court failed to take notice that petitioner had applied to trial Court to call upon respondent widow of decree-holder to furnish a list of legal representatives of deceased and that said application had remained undecided--Appellate Court could not have accepted appeal on said plea if trial Court had issued orders on that application--Failure, held further, had left petitioner without any remedy against a decree which was allegedly obtained by practising fraud on court--Case remanded in circumstances.

Faiz Muhammad Sadiq for Petitioner.

Ch. Mushtaq Masood for Respondents Nos. 1, 2 and 4.

Jari Ullah Khan for Respondent No.3.

Date of hearing: 22nd May, 1984.

The facts necessary for the disposal of this civil revision are as follows. On 25-1-1974 one Muhammad Ikram, acting through his daughter, Mst. Zahida Khanum, his general attorney, filed a civil suit for a declaration to the effect that he was the owner of a plot measuring 17 Marlas and 165 sequare feet situate in Nawankot, Lahore, together with the consequential relief that the registered sale-deed dated 1-1-1973 purporting to have been executed by him in favour of Mst. Rehmat Bibi be declared a bogus document and a forgery. Mst. Rehmat Bibi was cited as the sole defendant. During the-course of proceedings Ch. Muhammad Rafique, Advocate, appeared on behalf of the defendant and filed a written-statement purporting to bear her thumb-impression. In the written-statement the claim of Muhammad Ikram was admitted. On the basis of this written-statement and also in accordance with the statement made by her counsel at the bar the trial Court decreed the suit on 14-3-1974.

2. On 6-7-1976 Mst. Rehmat Bibi moved an application before the trial Court under section 151 of the Code of Civil Procedure for setting aside the judgment and decree of 14-3-1974. She denied that she had ever filed a written-statement or had appointed Ch. Muhammad Rafique as her counsel and alleged that the judgment and decree in question had been obtained by practising fraud on the Court. She impleaded Muhammad 1kram through his attorney Mst. Zahida Khanum as the sole respondent in her application. This application was initially dismissed in default but was later restored. On 5-7-1977 Mst. Zahida Khanum appeared before the Court and stated that Muhammad Ikram was no longer alive and that she was no longer his attorney. She also indicated that apart from her there were other legal heirs also of Muhammad Ikram. She did not care to give the names of the other legal heirs. It may be mentioned that in the suit filed by Muhammad Ikram she was described to be his sole legal representative. However, that may be, on 30-7-1977 Mst. Rehmat Bibi moved an application for issuance of a direction to Mst. Zahida Khanum to furnish the list of all the legal representatives of Muhammad lkram. She also stated that she was not aware of the death of Muhammad Ikram. Notice of the application of 30-7-1977 was given to Mst. Zahida Khanum but she did not furnish a reply thereto. Subsequently, her attendance in the Court became most irregular; on some dates she would appear and on others absent herself. Ultimately by an order dated 13-3-1978 the learned trial Court directed that proceedings be taken ex parte against her. Finally on 21-12-1978 by an ex parte order the learned trial Judge accepted the application of Mst. Rehmat Bibi and declared the judgment and decree dated 14-3-1974 to be null and void.

3. From the order dated 21-12-1978 one Zubaida Khanum, who described herself as the widow of Muhammad Ikram, filed an appeal. During the pendency of this appeal two other persons, namely, Mst. Abida Javed and Ala-ud-Din, who claimed to be subsequent purchasers of the plot in dispute were also impleaded as parties to the appeal. The learned Additional District Judge set aside the order of the trial Court, holding that as at the time when Mst. Rehmat Bibi applied for the setting-aside of the decree of 14-3-1974 Muhammad Ikram was dead and his legal representatives had not been brought on the record, the order of 21-12-1978 was illegal From the order of the learned Additional District Judge Mst. Rehmat Bibi has come In revision to this Court.

4. It is contended on behalf of the petitioner that there was no proper appeal before the learned Additional District Judge as at the time of its institution the appellant, Mst. Zubaida Khanum, was also dead. The learned counsel has however not placed before me any material in respect of his assertion. All that he states in support of his assertion is that he had prayed before the learned Additional District Judge that Mst. Zubaida Khanum should be asked to appear in person and that she never did so. I do not think that merely because Mst. Zubaida Khanum had not obliged him by personally appearing before the learned Additional District Judge an inference can be drawn that she was no longer alive. I would accordingly repel the contention of the learned counsel.

5. No doubt the learned Additional District Judge was right in taking the view that the trial Court was not competent to make an ex parte order against a dead person, but then he failed to notice that Mst. Rehmat Bibi had applied to the trial Court to call upon Mst. Zahida Khanum to furnish a list of the legal representatives of Muhammad Ikram and that the said application had remained undecided. Had learned trial Judge made a suitable order on the said application before passing the final order, the legal objection on which the Additional District Judge allowed the appeal would have been removed by Mst. Rehmat Bibi at the proper time. In the circumstances, the learned Additional District Judge while accepting the appeal should have remanded the case back to the trial Court for deciding the matter afresh after disposing of the application of 30-7-1977. The result of the order now made by the learned Additional District Judge is that Mst. Rehmat Bibi has been left without any remedy a all against a decree which according to her had been obtained by practising fraud on the Court. I would accordingly set aside the order of the learned Additional District Judge and also of the trial Court and remand the case back to the trial Court. The application of Mat. Rehmat Bibi for setting aside the ex parte decree should be decided only after an appropriate order has been made on her application of 30-7-1977.

6. There will be no order as to costs in this civil revision.

M. B. A. Case remanded.

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