' RUSTAM S. SIDHWA, J.--- This judgment will dispose of two appeals C.As. Nos. 273 of 1987 and 274 of 1987 preferred by Mubarik All appellant against two separate orders of a learned Single Judge of the Lahore High Court dismissing his two miscellaneous applications.
2. The brief facts of the case are that two separate applications were filed by the appellant under section 12(2), C.P.C., before the Lahore High Court for the recall of its decisions in R.S.A. Nos. 176 and 177 of 1984, both dated 27-3-1985, on the ground that they had been secured by fraud practised by the respondents. It was pleaded by the appellant that the power of attorney given by him authorised the attorney to deal with his property covering only 65 P.I. Units, but when he obtained a certified copy of the same he found that 658 P.I. Units had been recorded therein. His case was that the figure "8" had been added after the figures "65" and that this manipulation to defraud him came to light after the regular second appeals were decided. Since the appellant had preferred two petitions for leave to appeal against the decisions passed in the second appeals before the Supreme Court, which were withdrawn on 24-1-1987, the learned Single Judge returned the said applications to the appellant for filing the same before the Supreme Court, as he felt that Court had last dealt with the matter and therefore, the jurisdiction to deal with such applications lay with it. Being aggrieved by the said two orders, the appellant petitioned this Court for leave to appeal, which leave was granted to consider the question whether in view of the fact that the petitions for leave to appeal were not pressed, it could still be said that the final judgments in the two suits had been passed by this Court.
3. We have heard Ch. Riyasat Ali, Advocate, for the appellant in both the appeals. No one appears for the respondents as ex parte proceedings have been ordered against them.
4. The main question that arises is whether the two orders passed by this Court on 24-1-1987 dismissing the two petitions filed by the appellant seeking special leave to appeal amount to final judgments, decrees or orders, within the meaning of section 12(2), C.P.C. Section 12(2) of the said Code reads as follows:- "Bar to further suit.---(1) ......... ......... ............
(2) Where a person challenges 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."
What is intended is that a party must go to that Court which has finally decided the matter, if it desires to secure a reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The word "final" can mean the last in a series of judgments, decrees or orders which may have been passed. It can also mean that which is no longer further alterable and which has acquired finality. It is in the latter sense that the word "final" appears to have been used in section 12(2). A decision can only be treated as fmal if it is unalterable, except by any of the means provided by the Code of Civil Procedure or by any special procedure applicable to the given case. Thus, a final judgment, decree or order would mean a judgment, decree or order, so far as the Court rendering it is concerned, is unalterable, if it is not sought to be modified, reversed or amended by preferring an appeal, revision or review application. The appellant desires the reversal of the two decrees passed by the High Court in R.S.As. Nos.176 and 177 of 1984. The appellant at one stage did file two petitions to this Court seeking leave to appeal, which he withdrew on 24-1-1987 as he had earlier filed two applications before the High Court on 18-1-1987 for setting aside the two decrees on the ground that they had been obtained by fraud. This Court, by its two orders, dated 24-1-1987, permitted the appellant to withdraw the two petitions for leave and dismissed the same accordingly as withdrawn. These two orders cannot be treated as final disposal of the case. They neither finally decided any matter directly in issue in the case in respect of the rights of the parties, nor did they decide any issue which went to the foundation of the case which could never, whilst the decision stood, be questioned. The test whether the two orders disposed of the proceedings completely before this Court and the cases were never kept alive for being dealt with further, is not met. Rather, the two orders opened up scope for the decrees in the two regular second appeals being challenged before the High Court under section 12(2) of the Code of Civil Procedure. The two orders of this Court passed on 24-1-1987 were therefore, not final judgments, decrees or orders within the meaning of section 12(2) of the Code. Had the appellant not withdrawn the two petitions seeking leave, the answer may have been different. Had leave been granted, the decision in the two appeals would have definitely led to final judgments or decrees. Had leave been refused after a proper appraisal, it may again have led to two final decisions, for this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have been assailed anywhere, whilst the decisions lasted. It is a different matter whether this Court would take up petitions filed under section 12(2), C.P.C. For disposal, considering that under Rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the Rules. Whether it would act in review under Order XXVI of the Rules, or under Rule 6 of Order XXXIII under its inherent powers to secure the ends of justice, or on the basis of observations contained in Abdul Majid's case PLD 1982 SC 146 that a party who desires to show that a decision was obtained by fraud, need not do so by separate suit, but may do so by moving the same Court, would depend upon each case separately. However, we are not confronted with this situation and notwithstanding the views expressed, we would leave the matter open.
5. The learned Judge of the High Court relied upon Muhammad Yaqoob v. Mst. Nooran 1983 CLC 48 for the orders which he passed, referring also to Ch. Rafiq Ahmad Shad v. Punjab Road Transport Board 1985 SCM R 1919 for the view that the principle contained therein was not applicable to the cases before him. Both these rulings are distinguishable, so far as where the facts of the present case are concerned.
6. For the foregoing reasons, we would allow both the appeals, set aside the decisions of the Lahore High Court in C.M. Nos.208 and 209/C of 1987, dated 22-2-1987 and direct the High Court to receive back and dispose of the said applications in accordance with law.