' CH. SHAHID SAEED, J.---The civil revision is directed against order dated 5-5-2006 passed by learned Additional District Judge, Faisalabad whereby the application under section 12(2), C.P.C.
Filed by the petitioners was dismissed simply on the ground that it was not maintainable before the learned Additional. District Judge but before a superior court because the matter has already been dealt with by courts uptil the Hon'ble Supreme Court of Pakistan.
2. Succinctly stated the facts of the case are that respondent No,1 filed a suit for declaration on 4- 2-1992 wherein Mutations Nos.374 and 382 were challenged as being without consideratibn, without notice and illegal which was dismissed by the learned trial Court vide judgment and decree dated 28-7-1999. However, in appeal, the learned lower appellate court dismissed the suit to the extent of Mutation No,374 but decreed the suit to the extent of Mutation No,382 vide judgment and decree dated 8-5-2000 which was challenged in Civil Revision No,1478 of 2000. This court dismissed the Civil Revision vide judgment dated 28-3-2002. Thereafter, the matter went in CPLA before the Hon'ble Supreme Court of Pakistan who dismissed the same vide judgment dated 19-2-2003. So, the judgment and decree of learned Additional District Judge was maintained uptil the Hon'ble Apex Court. Afterwards, the petitioners filed application under section 12(2), C.P.C.
Before the learned Additional District Judge who dismissed the application holding that it was not maintainable before him.
3. The contention of learned counsel for the petitioners is that the application under section 12(2), C.P.C. Will lie at the forum who passed the decree which remained intact without modification. On the other hand, stance of learned respondents' counsel is that since the final judgment was passed by this court, as such, the application under section 12(2), C.P.C. Will lie here.
4. Arguments heard. Record perused
5. The only point put before this court for decision is where the application under section 12(2), C.P.C.Will lie; whether before the court who decreed the suit or by the court who at superior forum passed by the order finally.
6. Admittedly, the suit of respondent No,1 was dismissed by learned trial Court but in appeal, it was decreed to the extent of Mutation No,382. Afterwards, civil revision and CPLA were filed but could not succeed and the judgment and decree of learned Additional District Judge was upheld upto the Hon'ble apex Court. In the circumstances, the application under section 12(2), C.P.C. Will lie before the court who has passed the final decree which was not modified by the court superior to it. Since the judgment and decree passed by learned Additional District Judge remained unaltered uptil the 11.9n'ble apex Court and will be executed, the application should lie before learned Additional District Judge who passed the said decree and not before this court or the Hon'ble Supreme Court. The learned Additional District Judge has fallen in error while passing the impugned order. Respectful reliance is placed on the law laid down by the Hon'ble Apex Court in cases Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 564) and Muhammad Yousaf through Legal Heirs and others v. Noor Din and others (PLD 2002 SC 391).
7. In view cif the above, this civil revision is allowed Wand the impugned order is set aside resulting that learned Additional District Judge, Faisalabad shall entertain the application under section 12(2), C.P.C. Filed by the petitioners and decide it in accordance with law.