1. To appreciate the point in issue raised in this petition under Article 199 of the Constitution of Pakistan, it will be necessary shortly to set out the facts of the case. Bungalow No. 63, Church Road, Sialkot Cantt., previously evacuee property, was auction-purchased by Mst. Mehmuda Begum (widow), Mrs. Rukha Rafique Chaudhry, Mst. Shaila Bashir and Mian Arif Bashir. P.T.D. Was issued to the transferees. On 30-11-1973 Mst. Mehmuda Begum for herself and on behalf of the other owners, agreed to sell suit property to Maj. Malik Muhammad Ishaque etc. For Rs.46,000. Sale agreement was reduced into writing. On the basis of the aforenoted sale agreement, Maj. Malik Muhammad Ishaque brought a civil suit to enforce specific performance against Mst. Mehmuda Begum and others, in the Court of Civil Judge, Sialkot. Suit was contested. Learned Judge of the trial Court found in favour of the plaintiff and decreed suit in his favour on 28-10-1975. An appeal under the mistaken belief that it lay to the District Court was filed before the District Judge. However, since the jurisdictional value of subject-matter in dispute was beyond the competence of the District. Court, memorandum of appeal was returned to the appellants, which accordingly was represented in the High Court along with an application under section 5 of the Limitation Act for condonation of delay.
2. This appeal was heard by late M.E. Rana, J. And was dismissed on 25-1-1977. Delay in coming late to the Court was not condoned. Order of the High Court was maintained by the august Supreme Court of Pakistan and appeal was dismissed on 15-5-1984. After the dispute was settled and concluded at the highest level, petitioners relied on section 12(2) of the Code of Civil Procedure and impeached the decree passed in the suit for specific performance on the grounds of fraud and misrepresentation. It was pleaded that Mst. Mehmuda Begum was not a properly constituted Attorney of the petitioners. Application was dismissed by learned Senior Civil Judge, Sialkot on 27- 2-1985. Court found that the application was beyond time and was also not maintainable under section 12(2), C.P.C. In revision, learned Additional District Judge relying on a decision of this Court in Muhammad Yaqoob v. Mst. Nooran etc. 1983 CLC 1984, held, that since the decree of the original Court had merged in the final decision of the Supreme Court of Pakistan, application before the trial Court was not maintainable. It is this order of the Court below which has been assailed in constitutional jurisdiction. It was contended for the petitioners by Mr. Aitzaz Ahsan, Advocate that learned Additional District Judge had proceeded on wholly erroneous legal premises to hold that application before the original Court was not maintainable. It was contended that though the decision of the original Court had stood the test of soundness upto the Supreme Court, yet the decree of the trial Court alone was in the field and could not for purposes of section 12(2), of the Code be deemed to have been merged in the decision of Supreme Court. It .Was argued that theory of merger pressed in aid by the revisional Court, could not be properly invoked so as to deprive the petitioners to avail of a right allowed under the amended law. Counsel submitted that the fraud alleged originated in the decree of the trial Court and the superior Courts had dismissed the appeal not on its merits, but on account of limitation alone. Counsel contended that neither the High Court nor the Supreme Court had examined the merits and had simply declined to afford hearing on the sole ground that the petitioners had approached the appeal Court beyond period of limitation. In these circumstances, counsel submitted, it cannot be said that the decree of the trial Court as regards its merits had totally lost its existence and become merged in the decision of the Supreme Court.
3. After hearing learned counsel at length and examination of the record, I find that the whole dispute turns on the construction to be placed on section 12(2) of the Code of Civil Procedure. It reads:-- , "12(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."(Emphasis supplied).
4. This subsection was added by Ordinance X of 1980 with effect from 26-3-1980. Previous to amendment, validity of a judgment, decree or order could be challenged by way of an independent suit on grounds of fraud, misrepresentation or lack of jurisdiction. Added provisions of subsection (2) took away the right of a separate suit and provided that in case judgment, decree or order was impeached on grounds of fraud, misrepresentation or lack of jurisdiction, relief could be obtained by the aggrieved person by an application to the Court which passed the final judgment, decree or order. This provision of law fell for construction before this Court in Muhammad Yaqoob v. Mst. Nooran etc. 1983 CLC 1984 and it was found "---------It is an established proposition of law that the lower Court's judgment emerges into the judgment of the appellate Court, and thus the appellant Court's judgment is to be treated as final judgment. It is, therefore, amply clear that in the circumstances of this case, application under section 12(2) of the Code of Civil Procedure was not competent before the Court of Civil Judge, Chunian, but the same could be filed only before the Supreme Court of Pakistan." Under section 12(2) of the Code, application is to be addressed to the Court which passed the final judgment, decree or order.
5. Question that really arises is which was the final judgment, decree or order sought to be impeached in this case. It was not denied that the decree of the trial Court was affirmed in first appeal by the High Court, and further appeal by the Supreme Court of Pakistan. In my judgment, therefore, the final judgment in this case was rendered by the Supreme Court and the decision of the trial Court had clearly merged in the decision of the Supreme Court. When a Court passes a decree, it is open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that decree which can be made final in the cause between the parties. The merger takes place regardless of whether decree of first Court is affirmed, reversed or modified. On disposal of the appeal, the decree of the subordinate Court merges into the decree of the appellate Court and on the basis of the same appellate order merges into the final decree and cases to have effect thereafter. However, there are well recognised exceptions to the theory and rule of merger, which, however, are not available in the circumstances of the present case. It is for this reason that I have refrained from enumerating the exceptions to the rule of merger. It is correct to say that first appeal by the High Court was dismissed on bar of limitation and this decision was affirmed by the Supreme Court. This, however, would not detract from the rule of finality. In my opinion, the final judgment in this case was that of the Supreme Court of Pakistan. If the trial Court, as contended, is given authority to inquire into the fraud, misrepresentation or lack of jurisdiction in respect of decisions which had stood the test of correctness in higher forums, the net result would be that the finality attached to the appellate judgment shall be considerably whittled down and almost eroded. Mere fact that the appeal was dismissed on limitation, shall not prevent the application of theory of merger in its fulness. As the petition was dismissed by revisional Court on this ground alone, and merits were not examined, I have also refrained from offering any comments on the alleged particulars of fraud and misrepresentation. In result, I find myself in respectful agreement with the view taken in Muhammad Yaqoob v. Mst. Nooran etc. Endorse the view taken by the revisional Court. Accordingly, order of the revisional Court which proceeded on correct application of law, was neither without jurisdiction nor without lawful authority. Writ petition, therefore, is dismissed summarily.