M.A. ZAFAR, J. --- Facts giving rise to the present petition are that Munsab Khan respondent No. 3 filed execution petition against Sher Muhammad etc. (respondents Nos.4 to 6), which is pending adjudication in the Court of learned Civil Judge/Executing Court in which on 28.4.2005 an objection petition was filed by the petitioner, which was controverted by the decree-holder and from the divergent pleadings of the parties, the learned Executing Court framed the following issues:---
(1) Whether there are sufficient reasons to allow the objection petitions? OPP.
(2) Whether the objection petitions are time-barred? OPR
(3) Whether the objection petitions are false, frivolous and liable to be dismissed? OPR.
(4) Relief.
2. In support of objection petitions, petitioner appeared as AW.1 and deposed that Munsab Khan respondent No. 3 filed a suit 10/12 years back by impleading his father, who is uncle of Sher Muhammad, his brother Qadeer and his maternal cousin Dorez Khan, Fateh Khan and Fateh Khan son of Shahbaz was also impleaded and it was suit for permanent injunction. As per petitioner version, he was not impleaded in that suit despite the fact that he is in possession of the disputed property since when the suit was filed. Now the case of the petitioner is that Munsab Khan respondent/plaintiff is closely related to him and during the pendency of the suit his father died and after his death the legal heirs have not been impleaded in a suit despite that respondent No. 3 was in the knowledge of this fact. The suit was decreed and he was not informed about the pendency of the suit and after coming into the knowledge of the decree he filed objection and when commission visited the spot he also informed him about the death of his father and he is owner of the property in dispute. The learned Executing Court vide order dated 30.6.2007 dismissed objection petitions_filed by the petitioner, which order was assailed by the petitioner in revision petition but the same was also dismissed by learned Additional District Judge, Talagang vide order dated 26.7.2008.
3. Learned counsel for the petitioner contends that petitioner father Muhammad Nawaz was impleaded in a suit as defendant but during the pendency of the said suit he died but despite his death the petitioner or his other legal heirs/successors in interest were not impleaded as defendant in the suit and thus the decree passed without impleading them as a defendant in the suit cannot be enforced.
4. During examination as AW-1 petitioner has admitted the fact that he was in the knowledge of pendency of suit since its institution and he also admitted that suit was decreed in the year 2002 and thereafter, Munsab Khan filed execution petition. He also admitted that on 17.3.1997 he recorded his statement in this case when local commission visited the spot and he informed the local commission that he alongwith other are legal heirs of this deceased father. The said statement of the petitioner is available on the file at page 20/21 and thus it is quite evident that petitioner was in the knowledge of the pendency of the suit since its institution and since when his father died he did not come forward before the Court to move for being impleaded as defendant in the suit and there is no cavil with the proposition that where the deceased defendant failed to file written statement or did not opt to contest the suit, the judgment pronounced against the deceased would have the same force and the effect as it has been pronounced before his death and as mentioned by the learned Additional District Judge in his order that in the said suit the evidence of the petitioners/predecessor was closed by the learned Civil Judge and thereafter, the suit was decreed by relying upon the evidence of the plaintiff and being so it cannot be said that the suit was opted to contest. It was the legal duty of the petitioner to move an application for being impleaded as party in a suit after the death of his father but admittedly he has not moved such an application despite knowledge of pendency of suit and thus at this belated stage petitioner cannot be allowed to be impleaded as a party being a legal heir of late Muhammad Nawaz. No misreading and non-reading of evidence or law has been pointed out by learned counsel for the petitioner in support of his submissions. There is no jurisdictional defect in the impugned order passed by learned Additional District Judge in its revisional jurisdiction.
Resultantly, there is no force in this petition and the same is according dismissed in limine. .