1. ABDUL KADIR SHAIKH, J.---This appeal by leave is directed against the judgment of a learned Judge of Sindh High Court dated 11th May, 1987 by which a Revision Application riled by the appellants was dismissed with the result that the order of .Learned Civil Judge dismissing appellants' application under section 12(2) of the Code of Civil Procedure, was upheld. By that application the appellants prayed that the decree dated 2nd January, 1979, passed in favour of the plaintiff Mst. Sara Khatoon in Suit No.3109 of 1978 against (1) Haji Zainul Abedin, Muhammad Zahir and (3) Muhammad Shamim be declared as null and, void asTtwas obtained by fraud and misrepresentation of facts and also by concealment and suppression of real facts. The facts and circumstances which led to the filing of the aforesaid decree in Suit No.3109 of 1978 were as under: On 28th October, 1978, Mst. Sara Khatoon filed a suit for declaration that Shops Nos. G-4 and 5 of Property No.W.0.6/44/2/3 II:C:163 situated in Picture House Street, Karachi was orally gifted in her favour by her deceased mother, Mst. Hajra Bi, on 11th August, 1971, and she therefore became the absolute owner of the suit property. It was further prayed that declaration be made to the effect that Haji Zainul Abedin, defendant No.1, the husband of the plaintiff and Muhammad Zahir and Muhammad Shamim, defendants 2 and 3, the brothers of the plaintiff, have no-share or interest, by way of inheritance, in the suit property. In support of the aforesaid prayer it was asserted by Mst.
2. Sara Khatoon, plaintiff, that her mother Mst. Hajra Bi had delivered possession of the suit property to her and she had accepted the gift and was realising rent from the tenants. After the service of the notices of the suit, all the three defendants filed a joint application under Order XII, Rule 1 of the Code which reads as under: "The above named defendants 1 to 3 do hereby admit the claim of the plaintiff that late Mst. Hajra Bai who expired at Karachi on 8-10-1978 was the real mother of plaintiff and defendants 2 and 3 and defendant No.1 was her husband.
3. The shop premises No:W.0.6/44/2/3/I1.02/3 situated in Picture House Street Karachi was transferred to late Hajra Bai by the Settlement Authorities vide P.T.O. No.KYC/00021/C dated 7-3-1963 which she had gifted to the plaintiff orally on 11-8-1971 and also gave its possession, which the plaintiff had accepted and since then she is in continuous possession."
4. The order passed by the learned Judge has not been produced by the appellant but the diary- sheet of the file dated 2nd January, 1979 reads as under: "Advocate for plaintiff present. Advocate for defendants absent. Defendants have filed the application under Order 12, Rule 1, C.P.C. Have admitted the claim of the plaintiff. Suit is decreed accordingly in favour of the plaintiff."
5. Consequent to the judgment which has again not been produced on record by the appellant, the decree in favour of the plaintiff was passed in these words: "SUIT FOR DECLARATION: Plaint presented on: 28-10-1978 Plaintiff prays as under:-
(a) Declaration to the effect that shop premises Nos.G-4 and 5 of Property No.W.0.6/44/2/3/ II:C:163 situated in Picture House Street, Karachi was orally gifted in favour of plaintiff on 11-8-1971 by the deceased Mst. Hajra Bai who became the absolute owner of the property gifted. It may also be declared that defendants 1 to 3 have no share or interest by way of inheritance in the property gifted to the plaintiff.
(b) Cost of the suit be awarded.
(c) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case be also awarded.
6. This coming on this 2nd day of January, 1979 for Final Disposal before Mr. Muhammad Aslam Memon, Civil Judge Second Class,. Karachi, in presence of Mr. Muhammad Ahsan Shaikh, Advocate for the plaintiff. It is ordered that the defendant has fled the application under Order 12, Rule 1, C.P.C.
7. Has admitted the claim of the plaintiff. Suit is decreed accordingly in favour of the plaintiff.
8. Given under my hand and the seal of the Court. This 2nd day of January, 1979.
9. Sd/-23/1/1979 (Muhammad Aslam Memon)
10. XXIII, Civil Judge IInd Class, Karachi."
11. In support of the application under section 12(2) of the Code, it was asserted that the circumstances that clearly make out that the decree was obtained by the plaintiff Mst. Sara Khatoon on fraud are that Zainul Abedin defendant No.1 had expired on 30th November, 1978 as per death certificate produced on record, much before the alleged date on which he had consented to the decree and also that the learned counsel appearing on behalf of defendants had not even been engaged by the defendants.
12. In opposition to the application, it was asserted on behalf of the legal representatives -of Mst. Sara Khatoon, respondents 2 to 5 herein, that no fraud was played as alleged by the appellant, indeed the application itself was mala fide. In this regard, it was submitted that a similar application was moved on behalf of Muhammad Aslam in the suit which was dismissed and therefore present application was barred by res judicata. It was further urged that the application was actually moved at the instance of one Intizamuddin, the tenant of the property against whom ejectment application had been filed by the respondents. It was pointed out that the predecessor-in-interest of the appellant Muhammad Shamim was alive till 1983, but he had made no allegation against the decree passed in favour of Mst. Sara Khatoon.
13. Learned Civil Judge who dealt with the application rejected it for the reasons which maybe reproduced hereunder "It find that the brief facts of the case are that plaintiff, defendants Nos,2 and 3 are real sister and brothers. Defendant, No.1 is the father of the plaintiff and defendants Nos.2 and 3. Mst. Hajra Bi was the: real mother of the plaintiff and defendants Nos.2 and 3. The shop premises No.W.0.6/44/2/311 0.2/3 situated in Picture House Street, Karachi was transferred to late Hajra Bi by the Settlement Authorities. Mst. Hajra Bi had gifted the property to the plaintiff orally on 11-8-1971 which plaintiff had- accepted the gift, signed by defendants Nos.2 and 3 as witnesses, since then the plaintiff is in continuous possession. After the death of Mst. Hajra Bi defendants Nos.2 and 3 refused to accept the gift declared in favour of the plaintiff. Thereafter plaintiff filed suit for declaration. The Advocate for defendants has filed application under Order 12, Rule 1, C.P.C. And admits the claim of the plaintiff. Thereafter the suit of the plaintiff stands decreed on 23-1-1979. In 1983 one Muhammad Aslam has filed an application under section 12(2), C.P.C. That he has purchased 40 per cent share from the property of the defendant No.3 prior to his death. The prayer of the intervenor in application under section 12(2) for setting aside of decree obtained by fraud stands dismissed on 17-12-1984. Now L. Rs. Of defendant No.3 have moved. An application under section 12(2), C.P.C. On the same facts and grounds. From the perusal of the record I find that gift of the plaintiff was' witnessed by Muhammad Shamim and Muhammad Zaheer i.e. Defendant No.2 and defendant No.3. Thereafter they filed application under Order 12, Rule 1, C.P.C. And thereafter suit of the plaintiff stands decreed. It is obvious from the record and from the arguments of the counsels that defendants did not challenge the oral gift declared in her favour upto 25-3-1983 in any competent Court of Law. Neither they challenged the gift in the life-time of her mother. Defendant No.3 remained alive till 1983 nor he moved any application under section 12(2), C.P.C. Nor he claimed any share in rent of the property in suit. It is interesting to note that defendant No.2 who is the real brother of plaintiff and Muhammad Shamim (defendant No3) has not come forward in Court to challenge the decree of the suit nor he disowns the signature of defendant No.1 and defendant No.3 nor he informed the Court that intervenor has purchased the share in the suit property from the defendant No.3 in his life time. From the perusal it transpired that one Intizamuddin the tenant of the property in suit is real brother-in-law of Mst. Anmtul Kabir widow of defendant No.3. It was that Intizamuddin's wife is the sister of Amtul Kabir. Therefore they are in relation to each other and that's why they are challenging the decree of the suit by filing application under section,12(2), C.P.C. ; It is obvious from the record that L.Rs. Of defendant No.3 are moving application under section 12(2), C.P.C. After the delay of so many years. It shows negligence from their part and comes in mind that they were aware 'about the decree of the suit and in spite of knowledge they did not come forward. Nor they produced any document in their support that defendant No.3 inherited any share in the property. Therefore in absence of any document. I have no hesitation to consider that- they have failed to establish their claim that plaintiff has obtained the decree of the suit by way of fraud and misrepresentation."
14. It was against this order that appellants filed a revision application which was dismissed by the learned Judge in the High Court by the impugned judgment. The reasons that prevailed with the learned Judge may also be usefully reproduced hereunder: "However, I find that there is another aspect of matter which also requires consideration. I have already pointed that the decree was passed on 2-1-1979 and this application under section 12(2) was filed on 6-2-1986 viz. After more than seven years. No period of limitation is fixed for filing the application under section 12(2), C.P.C.
15. Under,-Article 95 of the Limitation Act, the period for filing the suit to set aside the decree obtained by fraud is three years from the date of knowledge. As already pointed, the defendant No.3 was present in Court on 2-1-1979 when the consent decree was passed and therefore, he will be presumed to have the knowledge of decree on 2-1-1979. The present applicants, who claim through defendant No.3 would also be presumed to have the knowledge of decree from the said date. If the applicant had filed the suit for cancellation of the decree on the grounds of fraud, it would have obviously been time-barred. Even if, Article 120 is applied which is applicable to the filing of the suits where no period of limitation was specifically provided, the period of limitation is six years from the date when the right to sue accrues. As already pointed that the right to sue accrued to the plaintiff on 2-1-1979 and as such even under Article 120 of the Limitation Act, this application would be time-barred."
16. Leave to appeal was granted by this Court in order to examine the plea raised on behalf of the appellants that there being a direct allegation that the defendants in the earlier suit had not engaged the counsel and had not subscribed to the consent decree, it was not proper for the Court to have accepted as correct what was being challenged as fraudulent. Besides that appellants had claimed that they acquired the knowledge of the decree only 10 days before the filing of the application under section 12(2) of the Civil Procedure Code.
17. After having heard the learned counsel for the parties in the light of the record before us, we find that the predecessor-in-interest of the appellants had died on 20th February, 1983, long after the decree sought to be challenged by the appellants was passed, and it is admitted that during his lifetime, he had not attempted to challenge the decree. It is further borne on the record that in 1983 one Muhammad Aslam had filed an application under section 12(2) of the Code asserting that he had- purchased 40 per cent share of the property from Muhammad Shamim prior to his death but the application was dismissed on 17th December, 1984. The application filed by the appellants under 'section 12(2) of the Code was on the same facts and grounds. As stated above, Muhammad Shamim, predecessor-in-interest of appellants was alive till 1983, and he had not moved any application under section 12(2) of the Code, and it is not shown that he had claimed any share in the suit property or the rent of the property. The defendant No.2 in the suit, who is the real brother of Muhammad Shamim, also did not make any challenge to the decree passed in favour of Mst. Safia Khatoon, nor he disowned the signatures of defendants Nos.1 and No.3 in the suit.
18. Learned Judge in .The High Court has also rightly taken the view that the application under section 12(2) of the Code was barred by time. In this behalf, this Court has already held in Muhammad Iqbal v. Muhammad Alamgir 1990 SCMR 1377 that the period of limitation for filing of an application under section 12(2) of the Code is three years under Article 181 of the Limitation Act.
19. For these reasons, we find that the learned Judge in the High Court has rightly refused to exercise the limited revisional jurisdiction of the High Court and there is no force in this appeal. It is accordingly dismissed with no order as to costs.