1. ' This application has been moved under section 12 (2), C.P.C. By the applicants who are the legal representatives of the deceased/defendant Haji Muhammad s/o Haji Umer in Suit No,687/86. The grounds urged by the learned counsel for the applicants are that decree in the present suit was obtained by fraud and misrepresentation. Briefly the relevant facts of this application are that the plaintiff claims to have purchased the property in dispute to the extent of 100% share from the deceased/defendant through an Agreement of Sale, dated 7-7-1980 while in a decree passed by the civil Court in Suit No,4416/80 it was declared that the deceased/defendant owned only 25% share in the suit property whereas the remaining 75% share was owned by his three brothers. The defendant Haji Muhammad is said to have died on 8-10-,1986 whereafter his share devolved on the present applicants while his other three brothers also subsequently made the gift of their 75% share to the present applicants. A death certificate from the K.M.C. Has been produced by the applicants which shows that death of the deceased was reported on 13-10-1986 and that he had died on 8-10-1986.
2. ' The matter in suit was in arbitration and the Arbitrator had passed the award on 21-7-1986. An application under section 14 of the Arbitration Act was moved by the Arbitrator in Court on 14-10- 1986, while the plaintiff moved an application under Rule 110 of Sindh Chief Court Rules (0.S) for urgent hearing of the said application of which no notice was issued to any party but the matter was taken for hearing on 16-10-1986 and the order sheet in the suit of 16-10-1986 shows that the deceased/defendant was also present and a consent order was passed making the award "rule of the Court".
3. ' Mr. K.B. Bhutto, learned counsel for the applicants has urged that in the first instance the deceased/defendant did not own 100% share in the property and, therefore, he could not sell the entire property and thus the very alleged sale itself is fraudulent. Learned counsel further urged that a fraud has also been played with regard to proceedings in the Court inasmuch as a fake person has been produced in Court on 16-10-1986 to give consent for passing of the-decree and also that the very application under section 14 was made showing a dead person as respondent.
4. The facts however, are that the defendant had died one week earlier to these proceedings. Mr. Rashiduddin Ahmad Khan, learned counsel appearing for the plaintiff has vehemently opposed this application. However, with regard to the above facts he has not submitted any material or documents to contradict the same. The main contention of the learned counsel for the plaintiff is that this application under section 12 (2), C.P.C. Is not maintainable as it challenges the very award.
5. I have considered the submissions of the learned counsel. As stated by Mr. K.B. Bhutto and borne out by the record in Suit No,687/86, it is clear that the defendant had died on 8-10-1986 whereas the application under section 14 of the Arbitration Act was made on 14-10-1986 and also that no notice of this application or the subsequent application of the plaintiff made under Rule 110 Sindh Chief Court Rules (O.S.) was issued to the defendant but on 16-10-1986 some person claimed to be the defendant appeared in the Court and gave consent for making the award rule of the Court.
6. This obviously is committing fraud and making misrepresentation with regard to proceedings in the suit. No doubt it is settled law that section 12 (2) C.P.C. Would not be applicable where the fraud or misrepresentation is claimed with regard to actual facts but the provisions of this section would certainly be applicable where the fraud or misrepresentation is alleged and shown to have been committed with regard to proceedings in the matter. As observed above in the present case the applicants have sufficiently shown that the fraud had been -played with regard to proceedings in the suit. I would, therefore, allow this application and set aside the decree passed in the suit on 5- 4-1987 whereby the award was decreed as rule of the Court. However, the suit will proceed from the stage the application under Section 14 of Arbitration Act was moved of which a proper notice will issue to the concerned parties. It will be open for the present applicants to make application to be joined in suit being legal representatives of the defendant. There will be no order as to costs.