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Civil Petition for Special Leave to Appeal No. 1031 of 1981, decided on 13th December, 1981.

(Against the order of the Lahore High Court, dated 28‑9‑1981, passed in Civil Revision No. 172 of 1981).

‑‑‑Art.185(3)‑‑Civil Procedure Code (V of 1908), O.IX, r.13‑‑Ex parte decree‑‑Setting aside of‑‑Petitioner's brother having unsuccessfully filed objection petition in execution proceedings‑‑Belated appeal by petitioner failed‑‑Plea of being unaware of ex parte decree not accepted especially because petitioner's real brother had filed objection petition against execution of that very decree‑‑Question being a question of fact, not permitted to be agitated before Supreme Court‑‑Leave to appeal refused.‑‑

Sajjad Hussain, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 13th December, 1981.

‑‑This petition is directed against the order of the Lahore High Court, dated 28‑9‑1981, dismissing the petitioner's Civil Revision under section 115, C.P.C.

2. The facts giving rise to this petition are, briefly, that Sajjad Ahmad petitioner was married to Mst. Asma Khatun (respondent) in February, 1971. He subsequently divorced his wife on 28‑10‑1973. She filed a suit against him on 5‑2‑1979, for recovery of Rs.20,000 as value of her dowery which was retained by the petitioner. The petitioner contested the suit and filed a written statement. He, however, failed to appear in the Court on 15‑1‑1980 when the case was fixes' for hearing. An ex parte decree was, therefore, passed against him on the same date. No appeal was filed against this judgment and decree within the period of limitation. The respondent in which the petitioner s property was ordered to be attached initiated execution proceedings. But Mr. Sarfraz Ahmad (brother of the petitioner) filed an Objection Petition on 18‑12‑1980, stating therein that the house in question, in fact, belonged to him, and could not be attached in execution of the said decree. This petition was, however, dismissed by the learned Civil Judge on 12‑2‑1981. On 5th of March, 1981, the petitioner filed an appeal against the ex parte decree passed against him which was hopelessly barred by time. It was, therefore, dismissed as such by the learned Additional District Judge on 17‑6‑1981. He then filed a Revision in the High Court which too was dismissed by the impugned order.

3. The main contention urged by the learned counsel was that the learned Courts below had failed to consider the fact that the petitioner was not aware of the ex parte order passed against him. He submitted that the learned High Court had laboured under a misconception that the Objection Petition regarding the attachment of the house had been filed by him (the petitioner) but Mir Sarfraz had in fact, filed it, his brother.

4. On going through the judgments in question we are inclined to agree with the learned Courts below that the petitioner was not unaware of the ex parte decree passed against him especially in view of the fact that his real brother had filed an Objection Petition against the execution of that very decree. In any case, it is a question of fact, which cannot be permitted to be agitated at this stage.

The petition is, therefore, dismissed.

M .I. Petition dismissed

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