SHAFIUR RAHMAN, J.---Leave to appeal was granted in proceedings arising out of an application filed in the Civil Court under section 12(2) of the Civl Procedure Code for resolving the apparent conflict between the views taken by the various High Courts with regard to the period of limitation available to the applicants in such cases. The one decision relied upon in Sikandar v. Saleh Muhammad (1983 CLC 1590) applied Article 173 of the Limitation Act while another decision from another High Court in Malik Inayat Ullah Khan v. Government of Pakistan (PLD 1985 Pesh. 23) applied Article 181 of the Limitation Act.
2. The appellant and Abdul Hameed respondent No,9 had a dispute over the ownership of property No,138 Anarkali, Lahore. They enterd into an arbitration agreement in respect of it, obtained an award in respect of it and filed an application under section 14 of the Arbitration Act on 6-1-1982 for making it a rule of the Court. A decision was given on 4-2-1982 making the award a rule of the Court.
3. On 21-1-1984, an application under section 12(2) of the Code of Civil Procedure was filed by respondents Nos.1 to 8. Elaborate factual statement was made in this application showing that fabrication of the record and fraud had been practised on the Court in obtaining the order making the award rule of the Court. For these proceedings it is not necessary to go into these questions.
The application was contested by filing a reply to it denying all the allegations. An application purporting to be under Order VII, Rule 11, C.P.C. Read with section 151, C.P.C. Was filed by the appellant seeking rejection of the application under section 12(2), C.P.C. The arguments were heard by the learned Senior Civil Judge/the Trial Court and the application under section 12(2), C.P.C. Was held to be time-barred as the Senior Civil Judge on the authority of the case of Sikandar held as hereunder:-- "This authority is very clear on the point that a petition filed under section 12(2), C.P.C. Must be filed within 90 days from the date of order. Admittedly this application has been filed beyond the limitation of 90 days. As regards the citations quoted by the learned counsel for the respondent none is attracted in the present case. No authority of Lahore High Court or for that matter of the Supreme Court in rebuttal has been quoted. In the absence of any authority on this subject of limitation from Lahore High Court or from Supreme Court, I am obliged to follow the law as laid down in 1983 CLC 1590 Karachi."
4. A revision petition was filed against this order by the applicants respondents Nos.1 to 8 in the High Court and the learned Judge by the impugned judgment accepted it and the case was remanded to the Trial Court for its disposal on merits in accordance with law. The operative part of the judgment of the High Court is reproduced as hereunder:-- "My attention has been drawn by the petitioners' learned counsel to a Division Bench judgment of the Peshawar High Court in the case of Malik Inayatullah Khan v. Government of Pakistan reported as PLD 1985 Pesh. 23 wherein after considering the aforesaid judgment of the Karachi High Court, it has been held that an application under section 12(2) cannot be treated as a review petition and to such an application Article 181 of the Limitation Act applies. With respect, I entirely agree with the reasoning given in the Peshawar judgment. Even the learned counsel for respondent No,4 agrees that Article 181 is applicable and not Article 173. The application in question having been filed within three years of the impugned judgment and decree, is well within time."
5. Ch. Khalilur Rchman, Advocate, the learned counsel for the appellants, at the very outset stated that he does not want to further contest the question on which leave to appeal was granted and the legal question which was reserved for examination in this appeal. What he wanted was to address argument on some other point and without seeking permission and obtaining it to do so, he proceeded to argue this appeal to contend that no application under section 12(2) of the Code of Civil Procedure was at all competent because in view of the self-contained exhaustive law in the form of Arbitration Act resort could be had to sections 17, 32, 23(2), 33 and 41 of the Arbitration Act and not to section 12(2) of the Code of Civil Procedure. He has referred to the definitions of judgment, decree and order contained in section 2 of the Code of Civil Procedure to contend that it necessarily envisages a suit and the proceedings in the Court were not suit nor the order making the award the rule of the Court a decree in the true sense and in support of the contention he relied on Dhanji Jairam Mali v. Secretary of State (AIR 1921 Born. 381), Secretary of State v. Kundan Singh and others (AIR 1932 Lah. 374), Hansraj Gupta and others v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. (AIR 1933 Privy Council 63), Gurbakhsh Singh v. Sant Ram (AIR 1929 Lah. 533), Umadutt Nemani v. Chandrao G. Kadam (AIR 1947 Bom. 94) and a few other decisions.
6. Mr. K. M. A. Samdani, Advocate, the learned counsel for the respondents has cited all the decisions so far reported on the subject of limitation for an application under section 12(2) of the C.P.C. And contended that in fact there was no such conflict as has been noted in the leave granting order which needed resolution by this Court.
7. In the case of Sikandar the application moved was under section 12(2) of the C.P.C. Read with section 151, C.P.C. And the prayer made was for review or for setting aside of the judgment on the ground that the same had been obtained by the appellant by fraud and misrepresentation. The Court while applying Article 173 of the Limitation Act divided the prayer into two categories, one for review and the other for relief on the ground of fraud, under "section 12(2), C.P.C. As regards the fraud and misrepresentation, the Court held that neither fraud, nor misrepresentation was made out and hence the extended period of limitation on that ground under Article 181 of the Limitation Act was not available. This finding would amount in fact to rejection of the application on merits so far as the claim under section 12(2), C.P.C. Was concerned. The other prayer for review of the order was held to be barred by time by applying Article 173 of the Limitation Act. In this background, this decision would not be in conflict with the decision in Malik Inayatullah Khan's case.
8. In subsequent decisions the conflict has been resolved. For example, in the case of Mst. Nigar Bibi and others v. Salahuddin Khan and others (PLD 1990 SC 76), the following observations were made:- "The contention of the learned counsel for the appellants that under the law the learned Judge in the High Court was not competent to review the order passed by another Judge and that too beyond the period of limitation has no merit. Admittedly the earlier order dated 4-5-1985 passed by the High Court was one which was not only based on ignoring the record and material circumstances but was one without jurisdiction, therefore, another Judge was fully justified to recall and adjudicate upon the matter and pass a correct and just order under the provisions of section 12(2), C.P.C. Read with section 151, C.P.C. Further, the provision of Order XLVII, Rule 5, C.P.C. On the subject is quite clear. Since the learned Judge who passed the order on 4-5-1985 was not on the Bench and there was no likelihood of his presiding over the Bench during the period mentioned therein, the other Judge under the law was, therefore, fully competent to hear and decide the application.
6. As for the question of limitation, this case would not be governed by Article 162 of the Limitation Act. The order against the respondents was passed ex parte, therefore, the application under section 151, C.P.C. Was fully competent for which period of limitation is three years as prescribed by Article 181 of the Limitation Act."
9. In Munawar Ahmad Noori v. Sarfraz Ahmad Khan (1986 CLC 899 Karachi) and Muhammad Latif v. Member, Board of Revenue and others (1986 CLC 1052 Lahore) both the Karachi and the Lahore High Courts have applied Article 181 of the Limitation Act for dealing with an application under section 12(2) of the C.P.C. In another case Province of Punjab through Collector, Multan, etc. v.
Muhammad Rashid, etc. (1988 MLD 2560) Article 181 of the Limitation Act was applied by the Lahore High Court.
10. In view of these decisions, so far as the leave granting order is concerned, it stands answered that no conflict seems to exist and Article 181 of the Limitation Act has been correctly applied to the proceedings under section 12(2) of the Code of Civil Procedure.
11. So far as the arguments advanced by the learned counsel for the appellants are concerned, they touch more the merit of the application under section 12(2) of the C.P.C. Than the question on which leave to appeal was granted. This is not the stage to go into the merits of the case because it has yet to be gone into by the Court seized of the proceedings and the remand is exactly for that purpose. The function of the subordinate Court cannot be pre-empted in the manner in which the learned counsel for the appellants wants to have it done.
12. For the foregoing reasons the appeal has no merit and is dismissed with no order as to costs.