IKRAMULLAH KHAN, J.---Through the instant revision petition, petitioners have challenged the impugned judgment and decree dated 07.05.2015, rendered by learned Additional District Judge/Izafi Zilla Qazi, Camp Court Bahrain Swat, whereby, the appeal filed by petitioners against the impugned judgment and decree of learned Civil Judge/Illaqa Qazi, Swat dated 13.10.2014 was dismissed.
2. In essence, a suit for declaration in regard to the suit property was instituted by respondents thereby claiming to be real daughter of one Akbar Mian and after his death; the suit property had devolved upon her to the extent of her Shari share. The suit was contested by predecessor in interest of petitioners Nos,1 to 7 by filing his written statement. However, the record is silent in regard to rest of the petitioners as to whether they were also summoned by the learned Trial Court. During course of trial, present respondents made an offer to the predecessor in interest of the petitioners to take oath in regard to the controversial facts that she was not true daughter of Akbar Mian. The predecessor in interest of petitioners refused to take oath and as such the suit was decreed in favour of respondents vide judgment and decree dated' 31.10.2014. An appeal was preferred before the learned District Judge, Swat, which . Was also dismissed vide judgment and decree dated 07.05.2015. However, the revision petition filed by predecessor in interest of petitioners, namely Khadim Khawaja was accepted by this Court vide its judgment dated 03.06.2003 and the case was remanded to learned Trial Court to summon all the defendants (petitioners), whereafter, decide the suit within four months positively, and the parties were directed to appear before the learned Trial Court.
3. On remand, the learned Trial Court, in light of direction of this Court; summon all the defendants in the suit, but only predecessor in interest of petitioners Nos,1 to 7 marked his attendance. Rest of the petitioners were placed ex parte, after their proper service through ordinary means as well as through affixation of notices. The contesting defendants, predecessor in interest of petitioners Nos,1 to 7 also made default in appearance before the learned Trial Court and as such, he was also placed ex parte on 04.03.2005 while predecessor in interest of petitioners No, 8 to 16, namely, Faqir Khawaja had already placed ex parte on 18.12.2004, when they failed to appear in Court.
4. Learned Trial Court recorded ex parte evidence and thereafter rendered its ex parte judgment on 01.07.2005 in favour of respondents. On 16.04.2013, petitioners filed an application under Order XI, Rule 13, C.P.C. In order to set aside the ex parte decree dated 01.07.2005. The same application was contested by the respondents, which were dismissed by learned Trial Court on 13.10.2014. An appeal was preferred by petitioners against the aforesaid judgment of learned Civil Judge, Bahrain before the learned District Judge, Swat, which was also dismissed by the learned Additional District Judge at Camp Court, Bahrain (Swat) on 07.05.2015, hence the instant revision petition.
5. Learned counsel for petitioners contended that the impugned judgment is against law and facts on record, as the period of limitation provided under Article 156 of the Limitation Act, 1908 for setting aside an ex parte decree would be reckoned from the date of drawing the formal decree sheet, in term of Order XX, Rule 7, C.P.C. And not from the date of judgment in the suit. Further stated that the suit property had been purchased by petitioners Nos,1 to 7 from widow and daughters of one Mushi Mian, the original owner of the suit land and in this respect, a Competent Court of law had passed a decree in their favour, which had already been executed and respective mutation had been attested. He lastly argued that law favours adjudication on merits, rather on technicalities.
6. On the other hand, learned counsel for the contesting respondents argued that the application under Order IX, Rule 13, C.P.C. Was hopelessly time barred, as the same was not filed within the prescribed period of thirty days, in order to set aside an ex parte decree, rather it was filed after lapse of more than seven years. Also refuted, the other ground of learned counsel for petitioners and stated that all the proceedings conducted by petitioners inter se, were on the back of respondents, and respondent was not party to any proceedings between the petitioners, in any Court of law, which were not binding on respondent, while petitioners had not raised any such objection in their pleadings in regard to any previous decree in regard to the suit property.
7. I have heard arguments of learned counsel for the parties and have gone through the record with their valuable assistance.
8. It is cardinal principle of law as envisaged under Article 164 of the Limitation Act, 1908 that the period for filing an application to set aside an ex parte decree by a defendant, shall be thirty days and the same would be reckoned from the date of decree or where the summons was not duly served then from the date of knowledge of the decree to the applicant/judgment-debtor.
9. In case in hand, predecessor in interest of petitioners, were not only served in accordance with law, but one of them was also appeared but did not contest the suit, thereafter, case was remanded by this Court.
10. It is also admitted fact alleged by the petitioners themselves that they had litigating inter se the same property, whereby, a shame decree had obtained but did not opt to contest the suit instituted by respondents. The act and omission of petitioners speaks loudly that they were vigilant with regard to sub-judice of the subject matter, before a competent Court of law. The contention of the learned counsel for petitioners that the formal decree sheet had drawn up at a later stage on 05.06.2014 and the period of limitation would be reckoned from the date of signing formal decree sheet is misconceived. The judgment relied upon by the learned counsel for petitioners rendered by the Apex Court reported as PLD 1967 SC 271, no doubt, wherein, it was held that for purpose of appeal, period provided under Article 156 of the Limitation Act, 1908 would be reckoned from the signing of the decree, but the proposition of law, involved herein, is the provisions contained in Article 164 of the Limitation Act, 1908, which prescribes 30-days, to set aside an ex parte decree.
11. The limitation provided under Article 156 of the Limitation Act, for the purpose of appeal, the principle enumerated by the Apex Court could not be extended to an application under Order IX, Rule 13, C.P.C., as in the former case, in terms of Order. XLI, Rule 1, C.P.C. a copy of decree and judgment is made mandatory to be annexed with the memorandum of appeal and without filing attested copy of the decree, an D appeal could not be treated as competent while in latter case, no any such provision is provided that a copy of decree shall be annexed with any application under Order IX, Rule. 13, C.P.C. By a defendant to set aside an ex parte decree. No any time is prescribed for signing a decree, in view of Order XX Rule 7, C.P.C. The decree shall bear the date, the day on which the judgment was pronounced.
12. So, irrespective of the fact that whether any decree has been drawn up in accordance with the provisions contained in Rule 6 of Order XX, C.P.C. The defendant in view of Rule 13 of Order IX C.P.C.
Shall file an application for setting aside an ex parte decree within the prescribed period provided under Article 164 of the Limitation Act, 1908 and shall not wait till formal decree is drawn up, as it is not requirement of law, provided under Rule 13 of Order IX, C.P.C. To annex attested copy of the decree with the application.
13. The word "decree" used in Article 164 of the Limitation Act could not be construed the one, described and defined in Rule 6 of Order XX, C.P.C., but it shall be taken in ordinary meaning as defined under subsection (2) of Section 2 of C.P.C. Which reads as:-- "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the declaration of any question within Section 144 and an order under Rules 60, 98, 99,101 or 103 of Order XXI] but shall not include.
(a) any adjudication from which an appeal lies as an appeal from an Order, or
(b) any order of dismissal for default.
14. No any orders, mentioned hereinabove, though shall be deemed to be a decree until and unless a formal decree is drawn up, but in case of any ex parte order, it shall be deemed as a decree, and the same period of limitation provided under Article 164 of the Limitation Act, 1908 shall be applied.
15. In other words, decree is the operative part of a judgment rendered in a civil suit or appeal.
Decree means an order by a competent Court of law, a judicial decision, an addict in law, however, the provisions contained in Rule 6 of Order XX, C.P.C., prescribe the contents of a formal decree, commonly known as decree sheet.
16. The provisions contained in Rule 7 of Order XX, C.P.C. Is very significant in determination of period of limitation for the purpose of an application to set aside an ex parte decree, which reads as:--
7. Date of decree.---The decree shall bear date the day on which the judgment was pronounced and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree".
17. The above mentioned provisions of law give retrospective operation, in so far as, the date of decree is concerned, irrespective of the fact, when the decree was signed, but it shall be construed to have been signed on the day on which the judgment was pronounced and the period of limitation shall be reckoned for the purpose of an application under Rule 13 of Order IX, C.P.C., from the date .Of decree and not from the formal drawing up the decree sheet.
18. The second contention of learned 'counsel for petitioners that the suit property had been decreed in favour of some ladies legal heirs of Mushai Mian including the predecessor in interest of petitioners, some where in 1977 in Rewaj and the proceedings were finalized and mutations were attested on the strength of that decree on 19.07.2010, but the predecessor in interest of petitioners had never exposed, such fact in their written statement or at any stage, while both parties, litigated in respect of the suit property upto this Court. Respondent No,1 had instituted her suit in the year, 1995 which ended in the year, 2005, but petitioners kept mum and agitated the same issue at revisional stage. Be that as may be, but the respondent No,1 was not party to any civil proceedings, because petitioners and some third persons were under litigation, therefore, any such decree, could not be effective against the respondents.
19. Petitioners are legally estopped to deny the ownership of the suit property, that it was not legacy of Akbar Mian, as they could not agitate the same plea, when they become exclusive owners by family settlement where they during course of trial, did not deny that the suit property was not legacy of Akbar Mian.
20. As proper summons were served upon, the predecessor in interest of petitioners Nos,1 to 7, who are petitioners Nos, 1 to 7 herein, where, their predecessor in interest had contested the suit for some years but later on lost his interest to contest the case, while predecessor in interest of rest of the petitioners had refused to accept the summon, who were served by alternate means, by affixing the copies of summon, etc in accordance with law.
21. All sets of petitioners are close relative, contesting the case, collectively as well as original defendants were real brother inter se, and rights of ex parte defendants were also saved by defendant No,1 in his written statement, therefore, it could not be presumed that they were not aware of the suit.
22. Moreover, predecessor in interest of petitioners Nos,1 to 7 was present in this Court, when a direction was made that all the defendants be served and the case be decided within four months, even then, neither' the predecessor in interest nor the rest of the defendants in the suit, opted to contest the same.
23. Therefore, petitioners does not deserve, in order to condone the delay occasioned in filing the application under Order IX, Rule 13, C.P.C., which was hopelessly time barred, being filed after a delay of more or less than seven years.
24. It is settled principle of law that this Court could not dilate upon and to resolve factual controversy, while exercising its revisional jurisdiction, being limited only to the extent of any illegality or irregularity, if occasioned, and learned Courts below while rendering the impugned judgments have properly appreciated the law, hence, require no interference by this Court.
25. For the reasons discussed above, this revision petition is without any substance stands dismissed accordingly.