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Judicial Miscellaneous Application No. 17 and Civil Miscellaneous Application Nos. 1952, 1953, 2322, 2303 and 2304 of 1986, decided on 23rd September, 1986.

‑‑‑S. 12(2) & 0. XXXIX, Rr. 1, 2 & 4‑‑Collusive decree, validity of‑‑Status quo, confirmation of‑‑Applicant challenging validity of decree under S. 12(2), C.P.C.‑‑Status quo order issued earlier was confirmed in order to avoid third party interest in property and to avoid complication.

‑‑‑0. XXXIX, R. 7‑‑Possession of property disputed‑‑Local Commissioner was appointed by Court to visit site and fix boundary pillars and barbed wires around land.

M. Shah for Applicant.

Muhammad Sharif for Defendants

C.M.As. Nos. 1952 and 1953 of 1986:

The main petition Judicial Miscellaneous No. 17 of 1986 has been filed under section 12(2), C.P.C. challenging the validity of the decree passed in Suit No. 74 of 1986. The contention raised is that the defendants Nos. 1 and 2 have obtained a collusive decree from this Court thereby prejudicing the rights of the applicant, who is a purchaser of the property. The allegations in this application are hotly contested by Mr. Muhammad Sharif, Advocate for the respondent No. 1. An order for maintaining status quo was passed by this Court, to be operative till the disposal of this main petition. This application has A been moved by Mr. Muhammad Sharif for vacating that order of status quo. But the contention of Mr. M. Shah learned counsel for the applicant is that if the order of status quo is vacated, the two defendants, who have obtained the collusive decree, would create third party interest in the property and in quite a number of other ways create complications which may render the suit infructuous.

The apprehension expressed surely has some force and it is necessary that such a possibility should be avoided as far as possible.

Mr. Muhammad Sharif, learned counsel for the defendant agrees that both the parties should maintain status quo. None of the parties should do anything which may prejudice the rights or interest of the other. This application is disposed of in these terms. Both the parties to maintain status quo.

C.M.A. No. 2322 of 1986:

In view of the consent order passed in C.M.As. Nos. 1952 and 1953 of 1986, this application has become infructuous. Mr. M. Shah does not press this application. Consecvently it is dismissed with no order as to cost.

C.M.A. No. 2303 of 1986:

Notice of this application to the petitioner/ applicant.

C . M . A . No. 2304 of 1986:

The parties do not agree about the possession of the land, each one of them claiming that the property is in their possession. This application has been moved by the respondent No. 1 for appointing Chowkidar, but such an appointment would mean indirectly allowance possession of the respondent No. 1. Mr. Muhammad Sharif, therefore, I does not press this part of the relief in this application and prays that a Commissioner be appointed to visit the site and fix the boundary pillars and barbed wires around the land in question.

It is not yet clear whether this chunk of land has already been earmarked and has been bounded in any way. In the first instance, I would appoint a Commissioner to visit the site and after notice to the parties and in their presence examine whether the area is already earmarked and what construction, if any, exists on the area and whether it is possible to raise the boundary pillars and the barbed wires, around the land, as desired by the respondent No. 1 in this application.

I would appoint Mr. Kaleem Siddiqui as Commissioner for 'this purpose. He may seek assistance of some surveyor, if necessary. The fee of the Commissioner is tentatively fixed at Rs.1,000. By consent the petitioner Lai Muhammad and respondent Iqbal Ahmad to pay Rs.500 each to the Commissioner. Report to be submitted within 15 days.

I n view of the order passed in C . M . A . No. 2322 of 1986 Mr. M. Shah does not press this application, which is consequently dismissed.

H . B. T. ‑‑‑‑‑ Application dismissed.

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