The facts giving rise to this writ petition are that certain disputes relating to a partnership between respondent No. 3, Ch. Muhammad Ismail, and respondent No. 4, Rana Faiz Ahmad, were referred by them to arbitration. The arbitrator gave an award in favour of respondent No. 3 and, on an' application having been made by respondent No. 3, under section 14 of the Arbitration Act, 1940, a Civil Judge passed judgment and decree in terms of the award. Respondent No. 3 then filed an application for execution off the decree.
2. By means of the execution application, respondent No. 3 sought possession of certain premises and return of some articles held by respondent No. 4, who was judgment-debtor qua the decree obtained by respondent No. 3. During the pendency of the execution proceedings, the petitioner, Muhammad llyas, made an application, under subsection (2) of section 12 of the Code of Civil Procedure, for getting the decree set aside It A as contended by him that the decree was secure , y respondent No. 3`by fraud and misrepresentation. He also made an apple petition, under Order XXXIX, rules 1 and 2 of the Code of-Civil Procedure, for stay of execution proceedings: His applications were dismissed by Mr. Akhtar Husain Zahid, Civil Judge, Lahore, who was seized of the execution proceedings. The learned Civil Judge has been impleaded as respondent No. 2 in the present petition. His order was challenged by the peti,ioner by means of a civil revision which was dismissed by Mr. Azhar Hafeez Sheikh, Additional District Judge, Lahore, who is the first respondent in the petition in hand.
3. The submission , made in this constitutional petition is that both the Courts below had "erred in their jurisdiction to give an adverse finding and their interpretation of law is obviously unwarranted". It. Has, therefore, been prayed that their orders may be "declared as illegal and unlawful as having been passed without jurisdiction".
4. The grievance voiced by learned counsel for the petitioner was that the petitioner could make the aforementioned application, under subsection (2) of section 12 of the Code of Civil Procedure, to challenge the decree in question on the plea of fraud and misrepresentation but his application was summarily dismissed by the learned Civil Judge without holding an inquiry into that plea of the petitioner.
5. Section 12 of the Code of Civil Procedure reads as follows :- "12.-(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
(2) Whether a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
6. Undoubtedly, the petitioner is not judgment-debtor qua the decree assailed by him by making application under subsection (2) of section 12 of the Code of Civil Procedure. The view expressed by his learned counsel was that since the word used in subsection (2) was "person" and not "judgment-debtor" the petitioner could attack the decree although it had not been passed against him. It was also maintained by him that before subsection (2) was inserted in section 12 of the Code of Civ:1 Procedure a decree obtained by fraud or misrepresentation could be avoided by bringing a separate suit but now any person can challenge a decree on the ground of fraud, misrepresentation or want of jurisdiction by making an application under subsection (2).
7. It is true that in subsection (2) of section 12 of the Code of Civi Procedure th; word "judgment- debtor" has not been mentioned but, for reasons to be stated in a moment, I am unable to agree with the learned counsel that any person other than the judgment-debtor or his legal representa-- tive or a person claiming under him, hereinafter referred to as the judgment--debtor or his successor-in-interest, can also challenge a decree by filing an application under subsection (2). A decree is not binding on, nor it can be executed against a person -who is not judgment-debtor or his successor---in-interest qua the decree and as such there was hardly any need for making law to enable such person to avoid the decree. Presumably, it was for the sake of brevity that in subsection (2) the Draftsman had employed the word "person" instead of the words "judgment- debtor or his legal representative or a person claiming under him" and for no other reason. Be that as it may, to my mind, it was not the intention of the law makers that the provisions of subsection
(2) be made use of by a person other than the judgment-debtor or his successor-in-interest. -
8. It appears that subsection (2) was as added in section 12 of the Code of Civil Procedure with a view to obviating the necessity of the filing, of separate suit by a judgment-debtor or his successor-in-interest for avoiding a decree on the ground of fraud, misrepresentation or want of jurisdiction so as to cut out delays in the finalisation of civil disputes ; but if a person other than the judgment-debtor or his successor-in-interest is allowed to make application challenging the decree by raising the plea of fraud, misrepresentation or want of jurisdiction, the said provisions of law are likely to be abused by a crafty type of judgment-debtor or his successor-in-interest for the purpose of avoiding or at least causing inordinate delay in execution thereof. His modus operandi would be to have an application filed by one of his relatives or friends or a hired person seeking annulment of the decree on one of the grounds mentioned in subsection (2). If such an application is not summarily dismissed for having been made by a person other than the judgment-debtor or his successor-in-interest, an inquiry will have to be held into the plea advanced by him. Such an inquiry would durely consume. Lot of time, and even if it ultimately does not succeed, it would have the effect of depriving the decree-holder of the fruits of the decree for a long time. On the failure of such an application, the judgment-debtor or his successor-in-interest, who was instrumental in .The making thereof, might have similar applications filed, one after the other, by different relatives, friends or hired persons and thus prolong the agony of the decree-holder. Such nefarious designs can be guarded against only if persons other than the judgment-debtors and their successors-in- interest are not allowed to take undue advantage of the word "person" used in subsection (2).
9. - As submitted by learned counsel for the petitioner, before sub--section (2) was inserted in section 12 of the Code of Civil Procedure, separate suits used to be filed for seeking annulment of decrees obtained by fraud or misrepresentation .Or from Courts having no jurisdiction to grant the decrees but now such decrees can be challenged by means of applications under subsection (2).
He, however, did not cite any authority showing that any such suit or upplication was successfully filed by any person other than a judgment-debtor or his successor-in-interest.
10. For the above reasons, in my humble opinion, if a reasonabl interpretation is to be placed on subsection (2), the scope of the word "person" will have to he restricted to the judgment-debtor and his successor-in-interest. In this view of the matter, the application made by the petitioner, who is neither the judgment-debtor nor his successor-in-interest qua the decree in question, was not competent.
11. It was frankly conceded by learned counsel for the petitioner that the real object behind the making of the above application by the petitioner was to retain possession of the disputed premises which respondent No. 3 (decree-holder) seeks to obtain by means of the execution proceedings take out by him., According to rule 103 of Order XXI of the Code of Civi Procedure: all questions arising as to title, right or interest in, or possession of immovable property between an applicant under rule 97 and the opposite --party, or between an, applicant under rule 100 and the opposite-party are to be adjudicated upon and determined by the executing Court. The petitioner's contention is that he is in possession of the said premises in his own right. The question whether he is occupying the disputed premises accordingly can also be decided by the executing Court under rule 103 but before he can obtain a verdict of the executing Court in th15 behalf he will have to make an application under rule 100. This he can do only after parting with the possession of the premises in question if he -is, in fact, occupying those premises at the present moment. The latest authority in point is A.I Husain v. Rafiquddin and 9 others PLD 1977 Lah. 418) which was relied upon by the learned Additional District Judge in support of his impugned order. The view taken in the case of A.I Husain was also followed by me in Mehr Mal Din etc. v. Abdul Majid 1981 CLC 288).
The only course now open to the petitioner, therefore, is to make use of the provisions of rules 1.00 and 103 of Order XXI of the Code of Civil Procedure in the light of the law laid down in the said two ccases.
12. In view of the above discussion, there is no merit in this petition. It is dismissed in limine.