' NAZIR AHMAD BHATTI, J.-Malik Inayatullah Khan appellant herein was owner of a garden consisting of 274 orange trees grown over 4/5 jaribs of land in village Tarai, Tehsil Timargara. He had planted these trees in the year 1971. This garden was irrigated by a canal and uptil the year 1976 these plants had grown and developed very much. In the year 1975 at the time of construction of Chakdara Chitral Road, the water from this canal was stopped and a diesel water pump was installed to supply water to the said garden. This diesel water pump was also stopped in July 1976 without any alternate arrangement and all the trees in the garden of the appellant were dried and destroyed. The appellant, therefore, instituted a suit in the Court of Senior Civil Judge, Timargara on 25-9-1978 for recovery of Rs, 1,37,000 as price of the said trees against the respondents herein. The latter were served and their counsel put in appearance on 20-11-1978 in the trial Court and he was ordered to submit written statement on 10-12-1978. On the said date, the respondents herein did not appear in the trial Court and they were proceeded against ex parte. The learned Senior Civil Judge granted an ex parte decree in favour of the appellant herein on 20-1-1979. The respondents herein submitted an application on 21-1-1979 for setting aside the ex parte decree in the trial Court but the same was rejected on 16-4-1979. The respondents then moved an application on 26-6- 1980 before the Senior Civil Judge under section 12(2), C. P. C. On the ground that the said ex parte decree was obtained by fraud and the same be set aside. This application was contested by the appellant herein and after recording evidence of the parties thereon the learned Senior Civil Judge accepted it vide order dated 30-3-1982 and set aside the said ex parte decree. Malik Inyatullah Khan plaintiff in the suit, aggrieved by the said order, filed the present appeal.
2. A preliminary objection was raised by Mr. Raza A. Khan, Deputy Attorney-General, appearing on behalf of the respondents, to the effect that the impugned order was not appealable and instead the appellant should have filed a revision-petition. This objection was accepted by the learned counsel for the appellant and he requested that this appeal may be converted into revision petition. We are also of the opinion that the impugned order could not be challenged by way of appeal and the only remedy left was a revision petition. Consequently, the appeal is converted in a revision petition and the same may be registered as such.
3. The learned counsel for the petitioner has challenged the impugned order on three grounds ; .
Firstly, the application, whereby the present proceedings commenced before the learned Senior Civil Judge, was time barred under Article 173 of the First Schedule to the Limitation Act ; secondly, the order dated 16-4-1979, rejecting the application of the respondents for setting aside the ex parte decree, was appealable and the respondents should have filed an appeal instead of the application under section 12(2), C. P. C., and thirdly, the alleged fraud had to be proved by the respondents through positive evidence. In so far as the first ground is concerned, the learned counsel for the petitioner has contended that the application tantamounts to a review of the judgment whereby ex parte decree was granted and for the purposes of limitation was covered by Article 173 of the First Schedule to the Limitation Act. In support of his contention he has relied upon the case of Sikandar v. Saleh Muhammad (1), wherein it has been held that Article 173 was applicable to application under section 12(2), C. P. C. Instead of Article 181. The perusal of this judgment of the Sind High Court would show that application under section 12(2), C. P. C. Was treated as a review petition. The learned counsel for the petitioner in that case has also named the said application as a review petition. We have minutely perused this judgment and we are of the considered opinion that an application under section 12(2), C. P. C. Cannot be considered as a review petition. Review petitions are filed under rule . Of Order XLVII, C. P. C. A glance at the provisions of this rule would show that a review petition would lie in case where any person considering himself aggrieved, (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or orders made against him, may apply for a review of judgment to the Court which!
(1) 1983 CLC 1590 passed the decree or made the order. On the contrary, the provisions of subsection (2) of section 12 of the Code of Civil Procedure empower a person, who challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, to seek his remedy by making an application to the Court which passed the same and not by a separate suit. This subsection (2) was added in section 12 on 26-3-1980 by Ordinance X of 1980.
4. The minute perusal of the provisions of rule 1 of Order XLVII, and subsection (2) of section 12, C. P.
C. Would show that proceedings c under both of them are different from each other and are distinct in nature. Under Order XLVII, a review petition would lie where appeal is allowed but no appeal has been preferred, or appeal is not allowed or on a decision on reference from a Court of Small Causes whereas under subsection (2) of section 12, C. P. C. a provision has been made to challenge, by an application, any judgment, decree or order on the plea of fraud etc. And this application is to be made to the same Court and a separate suit for the same purpose has been barred. It shall thus be seen that the scope of both the proceedings is different from each other.
Consequently, the period of4 limitation which is provided for a review petition under Order XLVII, C.
P. C. Would not , apply to proceedings filed under subsection (2) of E section 12, C. P. C. In the aforesaid case in the Sind High Court the petitioner had himself termed his application as a review petition and the question before the learned Division Bench of that High Court was regarding the period of limitation for a review petition. Having considered the aforesaid circumstances we very respectfully hold that an application made under subsection (2) of section 12, C. P. C. Would not be covered by F Article 173 for the purposes of limitation but the proper Article governing the said proceedings is Article 181 of the First Schedule to the Limitation Act. According to latter Article period of limitation for filing an application under section 12(2), C. P. C. Is three years from the date when the right to appeal accrues. The ex parte decree in this case was granted on 20-1-1979, where after the respondents herein came to know of the alleged fraud and the impugned application was made on 26-6-1980 and the impugned order was made on 30-3-1982. The application under section 12(2) C. P. C. Having been made within three years of the passing of the ex parte G decree was well within time and this objection to the impugned order raised by the learned counsel for the petitioner is untenable.
5. In so far as second ground is concerned, we do not find any provision in the Civil Procedure Code whereby an application under section 12(2), C. P. C. Is barred on the ground that a decree or order could be challenged in appeal. The provisions of this section are very clear and they do not impose any restriction or limitation on the power of a person to challenge a judgment, decree or order on the ground of fraud when the same could be challenged in appeal. We would, therefore repel this contention as well.
6. Regarding the third ground raised by the learned counsel for the petitioner, it may be said that sufficient evidence was recorded by the learned trial Judge pro and contra the application submitted by the respondents.
7. The evidence recorded by the learned trial Judge in these proceedings shows that the petitioner had made a complaint to the police on 30-12-1976 that some one had cut down his 274 fruit trees, which would mean that the trees were neither in existence on the date when suit was filed nor they were damaged by any fault on the part of the respondents herein. If these were cut by some one else, then how the respondents herein could be held guilty in destroying them and how could they be liable to make good the loss of the petitioners. Even otherwise this being a question of fact and ample evidence having come on the record, cannot be called in question in a revision petition before this Court acting in its revisional jurisdiction. In support of this view we are fortified by a very recent judgment of the Supreme Court in the case of Kawal Nain and 3 others v. Fateh Khan and others (1).
8. Finding no merit in this revision petition we would dismiss it with no order as to costs.
(1) PLD 1983 SC 53