' This application under section 12 (2) read with section 151, C.P.C. Has been filed on behalf of the petitioners, who were the defendants' Nos.1, 2 and 3 in Suit No 433/84 filed by one Khalil Ahmed before this Court.
2. Briefly, the facts of the case, as stated in the Petition are that Survey Nos.51, 52, 53, 62 and 64 in Deh Bhitti Amri Taluka and District Karachi East, were originally owned by one Lilaram, who subsequently migrated to India. Thereafter, the said Survery Nos. Were treated as Evacuee Property until 1974, when the Settlement Laws were repealed. After the repeal of the Settlement Laws, the said Survey Nos. Which now fall within Sector No,1-4 of Industrial Area under Scheme No,33 were transferred on 24-8-1982 by the Government of Sindh to the Industries Department. However, Survey No,64, which was reported to be in Sector No,54-A of Scheme No,33, was allotted to some Cooperative Societies.
3. Khalil Ahmed filed Suit NoA33/84 in this Court against Lilaram (defendant No,4) and the three petitioners in the present case for specific performance and permanent injunction by directing the defendant No,4 to execute a sale-deed in favour of the plaintiff after receiving a balance of Rs,2 Lacs from him or in the alternative by directing the Nazir of the Court to execute the sale-deed in favour of the plaintiffs. Relief in the suit was also sought against the present petitioners by directing them to issue a No-Objection Certificate for the execution of the sale-deed and by restraining them from interfering with the possession of the plaintiff in respect of the said Survey Numbers.
4. The suit filed by. Khalil Ahmed was resisted by the present petitioners on the ground that the land in question was an evacuee property. The petitioners further pleaded that Survey Numbers 51, 52, 53 and 62 in Sector No,1-4 had been included in Industrial Area of Scheme No,33 and transferred to Industrial Department and Survey No,64 in Sector 54-A of Scheme No,33 had been allotted in various Housing Societies.
5. Be that as it may, on 18-11-1985 Khalil Ahmed and Lilaram filed an Application before this Court, stating that they had compromised the matter. According to them N.O.C. Had to be issued by the present petitioners (defendants Nos.1, 2 and 3 in the Suit) and consequently for the said purpose the Deputy Comisssioner Karachi East, was called to appear before the Court, who then personally appeared and promised to issue N.O.C. Within about 10 days provided there was no obstacle in the way of the plaintiffs. However, the suit was disposed of by this Court by a Compromise Decree, dated 23-12-1985.
6. In the above factual background Mr. Muhammad Sharif has raised a preliminary objection that the present application is miserably time-barred since the same was filed before this Court on 23- 7-1989. There is no controversy on the point that the question of limitation in the present case would be governed by Article 181 of the Limitation Act as no period of Limitation has specifically been provided for filing an application under section 12(2), C.P.C. Article 181 provides for a period of limitation of 3 years and such period is to be reckoned from the date when the right to apply accrues. The contention of Mr. Muhammad Sharif is that the right, if any, to file an application under section 12 (2) C.P.C. Accrued to the petitioners on 23-12-1985, when the suit of the plaintiff Khalil Ahmed was disposed of by compromise. In that case, the present petition, which was filed on 23-7- 1989 was clearly time-barred as the same was filed beyond the period of three years prescribed by the Limitation Act.
7. Section 12 (2) of the Code of Civil Procedure provides as follows:-, "(2) Where a person callenges 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."
8. As is evident from the language of subsection (2) of section 12, a person challenging the validity of the judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, has been permitted to seek his remedy by making an application to the same Court, which passed the final judgment, decree or order. The right to file such application before the Court would, therefore, accrue from the date when the judgment, Decree or Order has been passed by the Court or when the fraud, misrepresentation etc. Came to the notice of the applicant. Such would be the starting point for limitation in terms of Article 181 of the Limitation Act. It is an admitted position that the present petitioners, which were the defendants Nos.1, 2 and 3 in. Suit No,433/84 had through out attended the proceedings before this Court in the said suit. It is also an admitted position that the learned Additional Advocate-General was pesent before the Court, when the compromise decree was passed in the matter. The fact that the property in question had originally been treated as an evacuee property was also within the knowledge of the petitioners throughout as this was the main ground, on which the said suit (Suit No,433/84) had been resisted by them. The same ground has again been pleaded by the petitioners in the present. Since the fact that the property was being treated as evacuee property was within the knowledge of the petitioners at the time of passing of the compromise decree in Suit No,433/84, obviously the period of limitation is to be computed from 23-12-1985, which adiittedly was the date of passing of the compromise decree. Under such circus stances I agree with Mr. Muhammad Sharif that the present petition is time-barred. If the petition is time-barred, it would not be necessary to go into the merits of the case. The upshot of the above discussion is that the petition is dismissed as time-barred, but with no order as to costs.