SYED HAMID ALI SHAH, J.- Brief facts giving rise to this application are that United Bank Ltd. Filed a suit for , recovery of Rs. 9,46,39,327.96/- against the appellant and respondents No.2 to 9, (COS.03 of 1997) before Bahawalpur Bench of this Court. The suit was decreed vide judgment and decree dated 13.05.2002. Appellant i.e. M/s Overseas Blue Star Ghee Mills, assailed the decree in Regular First Appeal No.639 of 2002, in this Court. During the proceedings parties settled their dispute amicably, UBL agreed to accept Rs. 18.688 million as full and final settlement of liabilities of appellant. While placing the letter dated 27-05-2004 (Mark A), learned counsel for the parties jointly requested for disposal of appeal on the basis of amicable settlement, conveyed through letter dated 27.5.2004. The appeal was disposed of through order dated 14.3.2005 by this Court, on the basis of Mark A, acceding to joint request of both the parties.
2. Collector of Customs Multan, through instance C.M. Under Section 12(2) of C.P.C., seeks setting aside order-dated 14.3.2005 whereby the appeal was disposed of decided on the basis of compromise. Applicant claims that an amount of Rs. 1,68,31,043/- is recoverable as custom duty, Rs. 93,50,341/- as penal surcharge, Rs. 1,10,000/- as personal penalty and Rs. 5,00,000/- as redemption fine, making total claim of applicant to the tune of Rs.2,66,91,384/-. It is contended that an application under Section 73(3) G.P.C. Was filed by the applicant during pendency of suit on 03.05.2000, wherein prayer for sale of assets for recovery of state dues and for impleadment of Custom Department as a party, was made. Learned Court without deciding the application, proceeded to decree the suit. Learned counsel has argued that appellant willfully absented which resulted into dismissal of leave application and consequently the suit was decreed. The appeal was filed and compromise was effected between the parties to out the applicant, resultantly state dues remained unpaid. Learned counsel has referred to the leave grant order dated 19.6.2002 passed in CP. No. 2838-L/2001 to contend that claim of Custom Department is preferential right and such recoveries involve satisfaction of public revenue, required under law to be given preference over other creditors. Learned counsel then referred to the case of "Saiyed Abu- Miyan Vs. Haji Abdul Ghani and others" (PLD 1974 Karachi 39) to contend that sale proceeds deposited in the Court belonging to the judgment debtor are lying for the purpose of paying it to the persons entitled to it ad not only to the decree holder. He has further submitted that arrears of custom department have priority oyer other debts.
3. Heard learned counsel for the applicant and perused record.
4. The grant of loan, execution of documents and existence of valid mortgage in favour of the respondent bank is neither disputed nor denied. Respondent bank has approached this Court, in its original banking jurisdiction, for the recovery of its dues. The Court decreed the suit, according to provisions of law. Plaintiff (bank) neither misstated any fact nor concealed anything from Court to obtain impugned decree. The parties settled their dispute amicably whereby the decree holder, instead of pursuing recovery of total decretal amount, accepted an amount of Rs.18.688 million as full and final settlement of its claim.
5. The appeal was disposed of in terms of compromise (Mark-A) between the parties. The decree cannot be said to have been obtained through fraud and. Misrepresentation, merely on the ground that a third party has also a valid claim against the judgment debtors. A decree can be aside under Section 12(2) C.P.C, when it is proved that decree holder has misstated facts or concealed facts or element of fraud and misrepresentation was involved.
6. Applicant had moved an application before the learned trial Court on 03.05.2000, which was not decided by learned trial Court. The grounds urged in this application are the same, which were raised before the learned trial Court. Trial Court decreed the suit on 13.05.2002. Applicant did not appeal against the decree nor any cross objections were filed. Applicant has moved this application after the lapse of more than 5 1/2 years, on the same grounds, which were already taken in the application filed under Section 73 of the Code of Civil Procedure, 1908. Such application is not competent. Reference in, this respect can be made to the case of "Mst. Hasina Khatoon and 2 others Vs. United Bank Limited and 6 others" (1993 MLD 1088). Applicant had the remedy of appeal to challenge the decree, which has not been availed. Application under Section 12(2) C.P.C, does not lie, while holding so we are fortified by the dictum of law laid down in the case of "Central Cotton Mills and another Vs. Atlas Bot Lease Co. Limited and 2 others" (1998 SCMR 2352). The leave grant order dated 19.06.2002 in C.P.No.2838-L/2001 is on different premises. There are various classes of creditors of whom some have preferential right of payment in the course of winding up.
In the instant case the judgment debtor is a company, which is not in the process of winding up but a going concern. Additionally, no sale proceeds are deposited with the Court to qualify the applicant to claim priority in ratable distribution of decree on the touchstone of law laid down in the case of Saiyed Abu-Miyan (supra). .
7. For the foregoing this application has no force and is dismissed accordingly. No order as to costs.