This Civil Revision has arisen out of a. Suit brought by the respondent, Malik Allah Ditta, challenging a decree passed against him: It was contended by him that the decree was obtained by fraud. The petitioners, Muhammad Siddique and others, were defendants in -the said suit which was decreed.
By the Civil Judge,' Nankana Sahib, District Sheikhupura, Feeling aggreived by the judgment and decree of the learne Civil Judge, the petitioner filed an appeal before an Additional District Judge of Sheikhupura. During the pen--dency of the appeal, section 12 of the Code of Civil Procedure was amended--by means of the Code of Civil Procedure (Amendment) Ordinance, 1980, and subsection (2) was added in that section so as to provide that if any decree is to be assailed on the ground of fraud it shall be done by making an application to the Court passing the decree and not by a separate suit. In view of the above amendment in the Code of Civil Procedure, the petitioners made an application to the learned Additional District Judge that since the appeal brought by them was the continuation of the suit instituted by the respondent, his suit was hit by that amendment. By raising this contention, the petitioners prayed for the dismissal of the suit brought by the respondent. Their plea, however, did not find favour with the learned Additional District Judge as he was of the view that since the suit was instituted and decided much prior to the amendment, which was not given retrospective effect, there was no force in the application made by the petitioners: It was, therefore, dismissed. The petitioners were not satisfied with the order made on their application, and have, therefore, come up in revision to this Court.
2. It was contended by learned counsel for petitioners that the appeal. Pending decision with the learned Additional District Judge was the continuation of the suit brought by the respondent and, therefore, his suit deserved to be dismissed in view of the aforesaid amendment of section 12 of the Code of Civil Procedure.
3. Subsection (2) of section 12 of the Code of Civil Procedure, which has been relied upon by the learned counsel for the petitioners, reads as follows :- "(2) Where 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."
Admittedly, the amendment by which subsection (2) was inserted in sec--petition 12 of the Code Civil Procedure, was made after the decision of the suit brought by the respondent. 1t is also not disputed that the said amendment was not enforced retrospectively. The respondent's suit was, therefore, not affected by the said amendment.
4. As for the submission of the learned counsel for the petitioners that an appeal is the continuation of a suit, I agree with him that with the filing of the appeal all questions agitated in the suit open up for fresh decision by the appellate Court but that does not eliminate difference between a suit and an appeal which are proceedings of the ,two distinct categories. The word used in the amendment under consideration is suit and not appeal. It would, therefore, operate as a bar against--fresh institution of suits referred to in the amendment and would have no bearing on the appeals arising out of such suits which were filed and decided before the amendment' was made. A similar question as involved in the present case was mooted before me in a case reported as Abdur Rashid Shah v. Khurshid Ahmad and others Law Notes 1980 Lab. 120and the view expressed by me in that case also was that if any law is made in relation to the trial of certain suits by a particular forum, its application cannot be extended to the appeals arising out of those suits which have been competently decided by another forum before the enactment of such law. In this view of the matter, the general principle that an appeal is the continution of a suit is of no help to the petitioners.
5. Before the insertion of subsection (2) in section 12 of the Code of Civil Procedure a person who proposed to challenge a decree on the ground of fraud could do so by filing a separate suit. Now, with the addition of subsection (2) in section 12 of the said Code any person aggrieved by a decree obtained by fraud case assail the same by making an application to the Court passing the decree; and not by means of a separate suit. This amendment was aimed at laving the parties from the bother and expense of a fresh round of litigation and cutting out delay in the determination of civil disputes. If the plea advanced by the- learned counsel for the petitioners is accepted and the respondent's suit is dismissed, he will be obliged to file an application to challenge the .Decree indispute. It was not the submission of the learned counsel that the 'respondent was also debarred from making such an application. He could not possibly contend like that because as explained above, the amendment in question did not leave without any remedy a party against whom a decree is obtained by fraud. The amendment under .Examination had merely provided such party with a remedy which is different from the one which was available to him before that amendment.
Resultantly, if the respondent's suit is dismissed, as desired by the petitioners, the respondent would have to make an application for setting aside .The decree in dispute and the same will have to be heard and decided by the Court which had passed thatdecree. Thus, he as well as the petitioners would have to undertake the same exercise which they have already done in connection with the suit brought by the respondent. This would, obviously, not only delay final adjudication of the matter in dispute but would also put the parties to unnecessary inconvenience and expense. The contention raised by the learned counsel is, therefore, opposed to the intention of the framers of the amendment in question.
6. For all the reasons given above, I am of the view that subsection (2 of section 12 of the Code of Civil Procedure bars the institution of fresh suits referred to in subsection and does not effect such suits which were filed and decided before it was inserted in section 12 of the Code of Civil - Procedure by means of the amendment in question.
7. Since the suit drought by the respondent was also instituted and disposed of before the aforesaid amendment was made in section 12 of the, Code of Civil Procedure, I agree with the learned Additional District Judge that the respondent could not be non-suited on the score of that amendment.
8. There is no merit in this revision. It is, therefore, dismissed in llmine.