' In this Constitutional petition legality of order dated 7-10-1991 passed by respondent -No,9 through which revision petition filed by the petitioner against the order, dated 8-2-1988 passed by respondent .No,8 dismissing his application under section 12(2), C.P.C. was dismissed on the technical ground that the said application was not maintainable against the decree dated 2-1- 1978, has been called in question.
2. An ex parte decree was passed in favour of respondent No,1 in a suit filed by him for specific performance of agreement against Fazal Muhammad deceased predecessor-in-interest of the present petitioner and respondents Nos.2 to 7 on 2-1-1978. Fazal Muhammad deceased made an application under secfion 12(2), C.P.C. before the trial Court alleging that the said ex parte decree had been obtained through fraud, misrepresentation and was liable to be set aside. This application was contested by respondent No,1 and issues were framed. One of the issues was as to whether the application was maintainable under the law which was issue No,2-A.
3. The trial Court held that the application under section 12(2), C.P.C. was maintainable in respect of decree which was passed prior to coming into force of Ordinance No,X of 1980 through which section 12(2), C.P.C. was amended as after coming into force of the said Ordinance the remedy of filing suit against the decree was no more available.
4. On merits it was held that since respondents Nos.2 to 7 had not supported the present petitioner, therefore, no case was made out for setting aside Of the said decree on the ground of fraud. The application was dismissed through order, dated 8-2-1988.
3. The petitioner filed revision petition against the said order before the learned Additional District Judge, Toba Tek Singh which has been dismissed through order dated 7-10-1991 impugned in this writ petition on the ground that the application under section 12(2), C.P.C was not maintainable, the findings recorded by the trial Court under Issue NO.2-4 were reversed.
6. Learned counsel for the petitioner argued that the remedy of filing, suit to challenge the decree passed by the trial Court on the ground of fraud was no more available by virtue of provision of section 12(2), C.P.C., therefore after coming into force of Ordinance No,X of 1980 through whic section 12(2), C.P.C. was amended as such the only remedy available to th petitioner was to file application under the said provisions of law.
7. Learned counsel 'for respondent No,1 maintained that since remedy appeal against the said decree as also remedy under Order 9, Rule 13, C.P.0 for setting aside ex parte had not been availed of by Fazal Muhammad deceased at the relevant time, as such, the ex parte decree had attained finalit and became past and closed transaction, therefore, the matter could not have been re- opened through miscellaneous application under section 12(2), C.P.0 as the said finality could not have been circumvented by reopening the matter by such an application.
8. The argument has no force because the finality, if any, attached to the said decree was as regards remedy of appeal and making of an application fo setting it aside under Order 9, Rule 13, C.P.C., but the finality was no available as regards remedy of filing a suit which could be availed of by Faza Muhammad deceased within the period of limitation which was to start fron the date of gaining the knowledge of the fraud allegedly committed be respondent No,1. The said remedy after coming into force of Ordinance No,) of 1980 through which a remedy under section 12(2), C.P.C. was provided, wa no longer available as by virtue of the same the suit was not maintainable, a such, the finality attached to the decree as argued by the learned counsel fc the respondent was not available as regards remedy under section 12(2), C.P.( was concerned which was in substitution of remedy of suit.
9. Learned counsel for respondent No,1 then argued that it was conceded by the learned counsel for the petitioner before the learne Additional District Judge that the application under section 12(2), C.P.C. not maintainable, therefore, he is estopped from pleading that such application was maintainable. The impugned order passed by the learned Addition District Judge though shows that such a concession was made but the Cot has given finding of its own. Even otherwise any admission or concession may by any party or his counsel regarding pure question of law and that too relatii to jurisdiction of the Court was not binding on him and the question estoppel in such a case could not arise.
10.The application under section 12(2), C.P.C. was maintainab therefore, on the erroneous assumption ,that the same was not maintainal the learned Additional District Judge shall be deemed to have declined exercise jurisdiction vested in it under the law to decide the revision petition t.herefore, the order impugned in this writ petition dated 7-10-1991 from jurisdictional defect, as such not maintainable.
11. Before closing this judgment it may be pointed out that Nazir Ahmad respondent No,3 has appeared in person who is also attorney for respondents Nos.2 and 4 to 7 and submitted that respondent No,1 Abdul Karim being the real maternal-uncle of petitioner and respondents Nos.2 to 7 exerted influence through her sister i.e. their mother to make statement in his favour before the trial Court as also in the previous round of litigation before the learned Additional District Judge in the previous revision petition on the understanding that he would restore the land to them but he has declined to abide by his commitment. Be that as it may, he may raise this question before the learned Additional District Judge to whom the case is being remanded who shall decide it in accordance with law and consider the desirability of transposition of respondents Nos.2, 3 and 4 to 7 as revision petitioners in the light of afore mentioned statement of respondent No,3.
12. For the foregoing reasons this writ petition is accepted. Order dated 7-10-1991 passed by the learned Additional District Judge, is declared to have been passed without lawful authority and of no legal effect and quashed. In the result the revision petition shall be deemed to be pending before the said Court which shall be decided on merits in accordance with law. There will be no order as to costs.