NADEEM AZHAR SIDDIQI, J. --- By this application (CMA No. 4865 of 2007) the applicants have prayed for setting aside the judgment dated 29.5.2006 and decree passed thereunder in Suit No. 554 of 1987 by which the suit was decreed in favour of plaintiff M.A. Razi Khan.
2. The learned counsel for the applicants submits that the applications are the legal heirs of Mst.
Kausar Perveen and Mst. Tanveer Islam who were the legal heirs of deceased Muhammad Ali Naqi Khan who died in 1976 leaving behind the property being No. 33-B, Block 6, P.E.C.H. Society, Karachi. He submits that the plaintiff and defendants in Suit No. 554 of 1987 have obtained the judgment and decree in collusion with each other on the basis of fraudulent and maneuvered documents. He then submits that the predecessor-in-interest of the applications were not impleaded in the proceedings and on the basis of a forged gift-deed the decree was obtained. He submits that at the time of gift one son was minor and was not legally entitled to accept the gift and that the gift was never complete as the possession of the property was not delivered to the donees. He then submits that after the alleged gift-deed the deceased owner has mortgaged the property with the bank from which it was clear that no such gift was ever executed.
The learned counsel has relied upon the following reported cases:---
(1) Abdur Rehman's Khan v. Muhammad Altaf and others (1997 CLC 1260).
(2) Abdul Waheed v. Pervez Akhtar and others (2005 CLC 1821).
3. On the other hand, respondent M.A. Razi Khan, who is present in person, submits that the judgment and decree has been properly obtained without any fraud and collusion. He submits that against the judgment and decree H.C.A. No. 255 of 2006 was filed which was dismissed and order in appeal was challenged before the Hon'ble Supreme Court in C.P.L.A. Nos. 17 and 18 of 2007 which were dismissed on 15.1.2007. He then submits that the mothers of the applicants during the lifetime have never claimed any inheritance in the property as they were aware about the gift made by the deceased owner in favour of his four sons and the applicants after the death of their mothers have filed this application as an afterthought.
He has referred to the order passed in H.C.A. No. 68 of 1985 and submits that the predecessors-in- interest were the parties to the proceedings in which the question of gift was arose and they have not taken any exception or objection to the gift. He then submits that the application is not maintainable and is liable to be dismissed.
4. From the perusal of record it appears that on 31.8.2007 the Court has passed the order directing the defendant/applicant No. 9 to satisfy the Court with regard to the maintainability of application.
5. I have heard the learned counsel for the applicants and M.A. Razi Khan, respondent in person. No other respondent is present.
6. The application under Section 12(2), C.P.C. Can be filed to challenge the judgment, decree and order obtained by fraud, misrepresentation or want of jurisdiction. The application can be made before the Court which passes the final judgment, decree or order. In this matter after the judgment of the learned Single Judge the judgment was challenged in H.C.A. No. 255 of 2006 which was dismissed and a detailed judgment was passed. The matter was also referred to Hon'ble Supreme Court who has also dismissed the same. Now the question is in which Court the present application can be filed. Sub-section (2) of Section 12, C.P.C. Provides that application can be filed in Court which passes the final judgment, decree or order. The word "final" has been defined as last in the series of judgment, decree or order which is no longer alterable by Court passing the said judgment, decree or order and has attained finality. In case of appeal, decree of Trial Court except in exceptional cases merges in the decree passed by Appellate Court and is capable of execution.
It is pertinent to point out that merger takes place irrespective of fact whether the decree of Trial Court was affirmed or reversed. In this matter the order of the Appellate Court was challenged before the Hon'ble Supreme Court but the Hon'ble Supreme Court has merely reaffirmed the judgment of the Appellate Court by refusing its leave to appeal. In this case the final judgment and decree was passed by the Appellate Court in H.C.A. No. 255 of 2006. At this stage when the judgment and decree which was confirmed by the Appellate Court if the state is set aside, it amounts to setting aside the judgment of Appellate Court also which is not permissible. In the reported case of Abid Kamal v. Muddassar Mustafa and others (2000 SCM R 900) the Hon'ble Supreme Court placing reliance upon the earlier judgments reported as Secretary, Ministry of Religious Affairs v. Syed Abdul Majid (1993 SCM R 1171), Government of Sindh v. Cha. Fazal Muhammad (PLD 1991 SC 197), Mubarak Ali v. Fazal Muhammad (PLD 1995 SC 564) and Khawaja Muhammad Yousuf v. Federal Government through Ministry of Kashmir Affairs (1999 SCM R 1516) has held as under:- it................................................................................................. In both the cases i.e. 1993 SCM R 1171 and 1999 SCM R 1516 the ratio decidendi is that if Supreme Court merely affirms judgment or order of High Court by refusing leave the final judgment in terms of Section 12(2), C.P.C. Will be of the High Court and not of the Supreme Court, and if, however, Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), C.P.C."
7. In view of the above the application under Section 12(2), C.P.C. Is not maintainable before this Court and the same is dismissed alongwith the pending applications. .