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Civil Miscellaneous Nos.5082 and 5083-L in Civil Revision No. 2182-D of 1.986, decided on 15th November, 1986.

---Ss.12(2), 96 & 115--Compromise decree challenged simultaneously through application under S. 12(2), C.P.C. before Trial Court and by preferring appeal before Appellate Court--Dismissal of said application on ground that appeal having already been preferred, application was not competent--Effect on appeal--Appeal, held, would be maintainable as dismissal of application made under S.12(2), C.P.C., could not be an impediment in the way of appeal--Petitioners on whose objection application under S. 12(2), C.P.C. was dismissed, by arguing that in view of dismissal of such application appeal against .original decree was not competent were approbating and reprobating on the point in issue.

---S.115 & O.XLI, R.23--Remand of case by Appellate Court--Validity- Where case was remanded by Appellate Court for holding an enquiry whether objector to compromise was a party to such compromise or compromise-deed was a forged or collusive document, no exception, held, could be taken to the impugned judgment in revisional jurisdiction high Court.

---S. 96, O.XLIII, R.1(m) & O.XXIII, Rr.1 & 3--Appeal against consent decree when maintainable--Where decree was based on the compromise recorded on application of parties under O.XXIII, R.3, C.P.C. same, held, was appealable as per provisions of O.XLIII, R.l(m) thereof.

---S.115--Revision petition filing of--Limitation--Revision filed within ninety days of the passing of order to be entertained by High Court- Rationale behind practice of admitting revisional petitions filed within ninety days, held, was that an indolent litigant should not be given a premium of availing of discretionary remedies at his own convenience to k the detriment of his adversary to whom a valuable right has accrued in the meantime.--[Limitation].

---S.115--Revisional jurisdiction, exercise of--Where judgment passed by appellate Court was neither without jurisdiction nor any illegality or irregularity was pointed out therein, same, held, could not be set aside in revisional jurisdiction of High Court.

Yusuf Ali Khan, Barrister-at-Law for Petitioners.

This revision under section 115, C.P.C. calls in question judgment dated 27-5-1986 delivered by the learned Additional District Judge IV, Okara.

The bequeathing of one-fourth of property by one Abdul Wahab in favour of Rahim Bakhsh, respondent No.l was challenged by one Noor Muhammad, predecessor-in-interest of petitioners Nos. l to 4 through a suit challenging the validity of the same and also by preferring an appeal against Mutation No.32 dated 23-8-1973 whereby the effect to the aforementioned Will was given.

The appeal was dismissed on 20-3-1975 and in view of the demise of Noor Muhammad his legal heirs filed a revision before the Additional Commissioner, Multan, which was accepted by order dated 10-1-1979 and against this revisional order Rahim Bakhsh and some others filed a revision petition before the Member, Board of Revenue, Punjab.

The parties, however, entered into a compromise during the pendency of the revision whereunder 136 Kanals, 14 Marlas of. land was given to respondent No.l and the remaining was given to the heirs of Noor Muhammad deceased.

Regarding this compromise Mutation No.58 was sanctioned on 21-3-1980.

The respondents and the petitioners thereafter transferred their entire land in Mauza Matanwala Tehsil Depalpur, District Okara to Bashir Hussain and others in exchange of their land in Mauza Bhojiyan. A consent decree was also obtained regarding this exchange of land on 18-6-1980.

The respondents, namely Mst. Khadija Begum and others instructed a suit against the petitioners and others on 25-3-1980 for a declaration whereby the validity of Mutation No.58 aforementioned was challenged.

The suit was contested but later an application was presented to the Court by Rehmat Ali, respondent No.10 herein and some of the defendants for recording a compromise.

The learned trial Court passed a decree in terms of the compromise Exh.C.1.

Rahim Bakhsh, respondent No.l feeling aggrieved of the aforementioned compromise decree availed of two remedies--one he preferred an appeal before the learned Additional District Judge, Okara out of which the present revision has arisen and the other he made an application under section 12(2), C.P.C. before the trial Court. His case is that he did not enter into any compromise, had not affixed his signatures on the compromise-deed Exh.C.1, that there was no question of entering into a compromise as there was an application moved shortly before that for amendment of the plaint so as to implead Bashir Hussain and others as party to the suit being interested party on account of exchange of land aforementioned without whom the matter could not be conclusively decided, and that the collusive alleged compromise decree is liable to be set aside.

The application of Rahim Bakhsh, respondent No.l under section 12(2), C.P.C. was dismissed by the learned trial Court by order dated 15-2-1982 on the ground that he could not avail of the remedy of the aforementioned application and also simultaneously assail the impugned decree through an appeal.

The learned lower appellate Court accepted the appeal by its judgment dated 27-5-1986 and setting aside the decree stated to have been passed on the compromise remanded the case to the trial Court with a direction to hold thorough enquiry with regard to the genuineness or otherwise of the compromise-deed and also to decide the application made by the plaintiffs for impleading Bashir Hussain and others and then decide the case afresh in accordance with law.

The present petitioners feeling dissatisfied with the above-mentioned appellate judgment, dated 27-5-1986 have come up to this Court in the present revision.

The learned counsel for the petitioners contended:

(1) That the consent decree was not appealable as provided by subsection (3) of section 96, C.P.C. and the entertainment of the appeal by the lower Appellate Court itself was objectionable what to say of the acceptance thereof;

(2) That respondent No.l was a party to the compromise and, therefore, could not be allowed to set up a plea to the contrary and file an appeal by resiling from the compromise, and

(3) That the application of the respondent under section 12(2), C.P.C. having been dismissed no appeal against the original decree passed by the trial Court could be preferred by the respondent.

I am afraid the contentions raised on behalf of the petitioner have no force. It has been correctly pointed out in the impugned judgment that the dismissal of the application of the petitioner under section 12(2), C.P.C. was not on merit but on the objection of the present petitioners that the appeal having been preferred, the application did not lie. The appeal, therefore, cannot be held to be not maintainable as the dismissal of the application made under section 12(2) could not be an impediment in the way of appeal. By arguing this point it is the petitioners themselves who are approbating and reprobating on the point in issue.

As regards the contention of the learned counsel for the petitioner that Rahim Bakhsh, respondent No.l being a willing party to the compromise stands precluded from availing of the remedy of appeal, I suffice by observing that the lower appellate Court has remanded the case precisely for the holding of an enquiry whether Rahim Bakhsli was a party to the compromise or the compromise-deed is a forged and collusive document. No exception, therefore, can be taken to the impugned judgment in the above connection.

The only other contention of the learned counsel for the petitioners that remains to be attended to is that no appeal is maintainable against the consent decree. This aspect of the matter has in fact been adequately dealt with by the learned lower appellate Court and it has C been correctly observed that the decree being based on the. compromise Exh . C .1 alleged to have been recorded on the application of the parties under Order XXIII, Rule, 3 C.P.C. was appealable as provided by Order XLIII, Rule 1, clause (m), C.P.C. The findings of the lower appellate Court in this regard are, therefore, unexceptionable.

Apart altogether from the above position, the present petition does not merit to be entertained as it badly suffers from latches. The impugned judgment of the lower Appellate Court was passed on 27th of May, 1986 and the certified copy of the same had been obtained by the petitioners on 29th of May, 1986 but the revision has been filed on 27th of October, 1986 i.e. almost after 5 months of the passing of the judgment. There is neither any reason given in the petition nor any canvassed at the Bar for this inordinate delay in filing the revision. It is the consistent practice of this Court that normally revisions are entertained which are filed within 90 days of the passing of the impugned judgment and decree. There is a rationale behind this consistent practice in that an indolent litigant should not be given a premium of availing of the discretionary remedies at his own convenience to the detriment of his adversary to whom a valuable right may have accrued in the meanwhile.

The net result of the above discussion is that the impugned judgment is neither passed without jurisdiction nor there is any illegality or irregularity pointed out therein which could attract the revisional E jurisdiction of this Court.

In view of the foregoing discussion, I find no merit in this petition which is accordingly dismissed.

A-A./N-17/L Revision dismissed.

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