' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the judgment of the Additional District Judge, Sargodha, whereby while accepting the appeal filed by Muhammad Younis, respondent No, 2 herein, he set aside the order of Civil Judge, Sargodha dated 10-12-1986 by which he had dismissed the application under section 12(2), C.P.C.
2. The dispute arises out of a suit for declaration filed by respondent No, 3 and one Nazir against Shamas Din, father of respondents Nos. 2 and 3 and grandfather of the petitioners who are sons of Muhammad Younis, respondent No, 2 herein. This suit was decreed with the consent of the parties on 19-2-1973.
' After about 8 years and 9 months, Muhammad Younis respondent No, 2, filed an application under section 12(2) of the C.P.C. For setting aside the decree dated 19-2-1973 on the ground that it had been procured by the plaintiffs through fraud and misrepresentation. This application was contested by the petitioners on various grounds inter alia that it was barred by time. On the pleadings of the parties the trial Court framed the following issues:--
(i) Whether the application is time-barred?
(ii) Whether the decree dated 19-2-1973 detailed in the head note of the application was the result of fraud and misrepresentation and without lawful authority and it is liable to be set aside under section 12(2) of C.P.C.?
(iii) Relief.
' On the basis of the evidence led before him, the learned Civil Judge held that the application was not within time and also that respondent No, 2 had failed to prove that the decree was a result of fraud or misrepresentation. In view of these findings, he proceeded to dismiss the said application.
' Aggrieved by this decision, respondent No, 2 filed an appeal which was accepted by the Additional District Judge, Sargodha vide his judgment and decree dated 23-1-1989 which has been assailed in this petition.
3. Two contentions have been raised by Mr. Muhammad Saleem Shahnazi, Advocate in support of this petition. First, that no finding was recorded by the appellate Court on issue No, 1 relating to limitation and secondly the order impugned before the Additional District Judge was not appealable and, therefore, he could not in the exercise of his appellate jurisdiction set it aside.
4. There is considerable force in both these contentions. From the perusal of the order of the trial Court dated 10-12-1986, it is evident that the application under section 12(2) was dismissed both on merits as well as being barred by time. Unfortunately while deciding the appeal, the Additional District Judge completely ignored from consideration the issue relating to limitation and without reversing the findings of the trial Court on this issue, proceeded to accept the appeal and set aside the decree dated 19-2-1973. There can be no doubt that in doing so the Additional District Judge acted illegally. As already observed, the application of the respondent having been dismissed on the ground of limitation also by the Civil Judge, without reversing that finding, it was not possible for the Additional District Judge to have accepted the appeal.
5. The second contention is equally well-founded. According to section 104 of the C.P.C., appeal lies from the orders enumerated therein and save as otherwise expressly provided by the Code of Civil Procedure or by any law for the time being in force, against no other order. An order under section 12(2) is not one of those orders which are appealable under section 104, C.P.C. Or Order 43, Rule 1, C.P.C. There is no other law for the time being in force which makes the order under section 12(2) appealable. For this reason also, the Additional District Judge could not have accepted the appeal filed by respondent No, 2.
' The learned counsel for the respondent, however, submitted that even if the appeal filed by respondent No, 2 was not competent, it could be treated as a revision. There is no cavil with the proposition that a Court before whom an appeal is pending, may in the exercise of its discretion, treat an incompetent appeal as a revision but there must be a conscious exercise of discretion by the Court. No request for treating the appeal as a revision was made by respondent No, 2 before the appellate Court and it cannot be contended that the Additional District Judge while accepting the appeal had treated it as a revision.
' As a result of what has been stated above, this petition is accepted, the judgment and order of the Additional District Judge, Sargodha, dated 23-1-1989 is declared to be without lawful authority and of no legal effect with the result that the appeal filed by respondent No, 2 shall be deemed to be pending before the Additional District Judge who shall consider the request of respondent No, 2 for treating the appeal as a revision and decide it in accordance with law. No order as to costs.
' Since the decree under challenge was passed 17 years back, it is directed that the Additional District Judge, Sargodha, shall dispose of the matter within a period of three months from today.