Through this Civil Revision, petitioner has called in question judgment dated 26.04.2018 passed by Addl. District Judge, Mandi Bahauddin, through which application under section 12(2) C.P.C. filed by the petitioner has been dismissed. Through the said application, the petitioner had called in question an earlier order dated 01.02.2018 passed by said Court whereby while allowing appeal filed by respondent No. 1 to 4 (decree holders), their application for cancellation of registered gift deed executed on 27.02.2016 and mutation No. 566 sanctioned on 19.03.2016 whereby the property was transferred by the respondent No. 5 judgme nt debtor in favour of his mother respondent No. 7 to avoid execution of decree was allowed and the Court declared the said transaction for transfer of property as sham transaction and it was ordered that the said property be put to auction for the satisfaction of decree passed in favour of respondent No. 1 to 4 (decree holders).
2. It is contended by learned counsel for the petitioner that property subject matter of this dispute prior to decree in favour of respondent Nos. 1 to 4 had been further transferred to the petitioner who had not been made party to the proceedings whereby transfer of property in favour of Mst. Bashir Begum (Respondent No. 7), who is mother of both petitioner and the judgment debtor was challenged and as he being the lawfu l owner was necessary party to the proceedings, therefore, impugned orders having been passed without impleading him as party are liable to be set aside.
3. On the other hand, learned counsel for the respondents has defended the impugned order by stating that transaction in favour of respondent No. 7, mother of the petitioner by the judgment debtor was sham transaction made in the record just to deprive the respondent Nos. 1 to 4 (decree holders) from fruits of decree passed in their favour and further transfer of the said property in favour of present petitioner , who is real brother of judgment debtor by the mother , was managed to create another hurdle in execution of decree in favour of respondent Nos. 1 to 4, hence, the said transfer was rightly set aside.
4. Heard, record perused.
5. The petitioner claims to be owner in possession of the property in question by virtue of registered gift deed executed in his favour by his mother Mst. Bashir Begum/respondent No. 7 and mutation of the same was also sanctioned by revenue authorities. The petitioner claims that he has constructed "Kothi" on the property prior to its transfer when it was joint khata, however , after execution of gift deed whole ownership of property in question vested with the petitioner and petitioner is residing there as absolute owner with his family members. Furthermore, property in question was not the subject matter of suit for maintenance allowance decreed in favour of respondents No. 1 to 4 and was transferred in favour of the mother respondent No. 7 prior to announcement of judgment/decree of the said suit for recovery of maintenance allowance, hence, executing Court rightly dismissed the application for setting aside the transfer vide its order dated 14.12.2017 which order has been set aside as per claim of the petitioner without appreciating real controversy in issue by not impleading him as party through the impugned order dated 01.02.2018 against which application under Section 12(2) C.P.C. has been dismissed without appreciating that petitioner has not been impleaded as party .
6. In this case decree for recovery of maintenance allowance was passed in favour of respondent Nos. 1 to 4 on 30.04.2016 and execution petition was filed on 08.06.2016 in which judgment debtor respondent No. 5 was sent to civil prison on 29.07.2016 on account of non-payment of decretal amount and was released after one year of civil imprisonment on 29.07.2017. As despite going to civil prison judgment debtor was adamant not to pay maintenance allowance to the respondents, they were constrained to file an application on 20.01.2017 to cancel registered gift deed dated 27.02.2016 executed by the judgment debtor in favour of his mother respondent No. 7, which application has been allowed in appeal by Addl. District Judge. Claim of the petitioner is that he was not made party to the proceedings to cancel the transfer of property in favour of respondent No. 7 despite the fact that he had been transferred the said property by the respondent No. 7 prior to the date when application of cancellation of transfer in favour of respondent No. 7 was filed, hence, the said order is liable to be set aside, however , the said ground is without any substance as the transfer of property in favour of respondent No. 7, who was real mother of judgment debtor appears to have been made with intention to avoid execution of decree in favour of respondent No. 1 to 4 and its further transfer to the petitioner who is real brother of the judgment debtor by the mother vide gift deed No. 617 dated 02.05.2016 and mutation No. 561 dated 06.06.2016 (i.e. after the date of decree dated 30.04.2016) has been made apparently for the same reason of depriving the respondent No. 1 to 4 from the fruits of decree passed in their favour .
7. In a similar case that came up for consideration before Hon'ble Supreme Court of Pakistan in judgment reported as "AMJAD IQBAL Vs. Mst. NIDA SOHAIL and others" (2015 SCMR 128), the Hon'ble Court set aside the transfer of property made to close relatives to avoid decree of maintenance allowance passed against the judgment debtor by declaring the same as sham transaction. The relevant portion is reproduced as under: "As regards the Hiba is concerned, it may be noted that respondent No. 2 was taken into custody in civil prison as he failed to satisfy the decree. On 22.07.2009, respondent No. 3 the second wife of respondent No. 2, appeared in the Executing Court and gave undertaking to satisfy the decree on which the respondent No. 2 was released from custody and it was only after 4 days of his such release, the respondent No. 2 thought of making Hiba of his residential house in favour of respondent No. 3, his second wife. The Execution Court through its order dated 14.05.201 1 declared such Hiba to be unlawful and such order of the Executing Court appears to have been maintained by the revisional Court. Once the Hiba itself was declared to be unlawful, any further transaction on the basis of the said Hiba could only be a nullity in the eye of law for that the donee of the Hiba did not have legal title to the house to sell the same to the petitioner . Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied . The decree was nothing but for the maintenance of respondent No. 2's own minor daughter . Unfortunately , the respondent No. 2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the respondent No. 2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the respondent No. 2."
(Emphasis supplied)
8. In the afore-referred judgment it was held that transaction whereby property is sold or transferred by judgment debtor to his close relatives in order to avoid payment of maintenance allowance against decree passed in favour of his wife and children, is a sham transaction and the said transaction and any superstructure built on the same cannot be sustained. Consequently while following principles laid down in afore-refe rred judgment as the transfer in favour of respondent No. 7/mother has been declared as sham transaction, the petitioner , who is subsequent transferee of the said property through gift in his favour by the mother is not entitled to any relief as he has stepped into the shoes of his own mother , transfer in whose favour has been set aside and merely because he was not made party to the proceedings would not be sufficient to set aside the orders passed by Addl. District Judge whereby transaction has been declared as sham as no prejudice has been caused to the petitioner by not impleading him as party as he would not have any better title than the person from whom title was transferred in is favour and any defence taken by the petitioner would not cure the defect in the title of his predecessor in interest i.e. his mother . In these circumstances it is held that application under Section 12(2) C.P.C. filed by the petitioner was rightly dismissed by the Court as the said order was in consonance with the principles laid down in the afore- referred judgment of Hon'ble Supreme Court of Pakistan wherein it has been held that where basic transaction is declared as sham superstructure, built on the same is also not sustainable and shall collapse.
9. Besides the grounds raised by the petitioner are not sufficient for setting aside the impugned orders through application under Section 12(2) of C.P.C. because for that purpose the applicant in addition to above mentioned grounds including ground of not being impleaded as a party was also required to establish that he was not impleaded fraudulently , by misrepresenta tion or Court lacked jurisdiction in the matter as provided under Section 12(2) C.P.C., which has not been done. As no fraud or misrepresentation on behalf of the respondent Nos. 1 to 4 has been pointed out from the record of this case, therefore, there is no reason for this Court to exercise its jurisdiction under section 12(2) C.P.C. to set aside the impugned orders and the application under 12(2) C.P.C. merited to be dismissed and has rightly been dismissed by the Addl. District Judge. Reliance in this behalf is placed on case titled "Subedar Sardar Khan through Legal Heirs and another versus Muhammad Idrees through General Attorney and another" (PLD 2008 SC 591), where in it has been held that through application under Section 12(2) C.P.C. decree could be set aside only on the grounds stated in the said Section and where no case of fraud or misrepresentation or lack of jurisdiction was made out, the application under the said Section was not maintainable and merited to be dismissed.
10. In view of the above as the petitioner has failed to point out any illegality or jurisdictional defect in the orders passed by the Addl. District Judge, which even otherwise are well reasoned, based on proper appreciation of record and well founded, consequently , the said orders do not warrant any interference by this Court.
10. For the reasons recorded above, this petition being devoid of merit, is dismissed.