SHAH JEHAN KHAN YOUSUFZAI, J.---This Constitutional petition arises out of an order dated 15-4- 1992 passed by a learned Additional District Judge, Swabi, whereby he dismissed the revision petition against the order of a learned Additional Civil Judge-I, Swabi, dated 23-2-1989 rejecting the objection of the petitioners raised during the execution proceedings in ex parte decree out of a pre-emption suit.
2. The facts leading to this writ petition, briefly stated, are that Muhammad Anwar, respondent No.4 herein, had purchased land measuring 3 Kanals, 1 Maria and 7 sarsais from one Hassan Zeb for an ostensible sum of Rs.10,000 vide Mutation No.7099 attested on 9-10-1983. Laiq Zaman respondent No. 3 herein pre-empted this sale in a suit for possession. The vendee Muhammad Anwar contested the suit, filed his written statement and after the framing of issues by the trial Court, the case was fixed for evidence. As the plaintiff was absent on 3-12-1986, therefore, the suit was dismissed for non---prosecution. On the same day an application was moved by the pre-emptor for restoration of the suit which was allowed and the suit was restored on payment of costs of Rs.20. The case was then fixed for the defendant's evidence on 10-2-1987. 1n the meantime, the learned District Judge, Mardan, ordered the transfer of the case to the Court of Additional Civil Judge, Swabi, for disposal and the parties were directed to appear before the said Court on the date fixed. On 5-4-1987 both the pre-emptor and the attorney of the defendant entered appearance and the defence evidence was summoned for 9-5-1987. On the last mentioned date, the plaintiff alongwith his counsel attended the Court but none was in attendance on behalf of the defendant and, in consequence, an ex parte decree for possession by pre-emption was passed in favour of the plaintiff/pre---emptor. The aforesaid ex parte decree having not been challenged in appeal attained finality.
3. During the execution of the ex parte decree, however, it transpired that Muhammad Anwar respondent No.4 herein transferred the entire suit land in favour of the petitioners by separate mutations Nos.7808 and 7810 respectively entered on 17-11-1986 and 1-12-1986 but finally attested on 7-12-1986.
4. On 15-2-1989 in the execution proceedings the petitioners herein filed an objection petition questioning the validity of the ex parte decree and its binding effect upon them. The learned Executing Court rejected the objection of the petitioners holding that the petitioners/objectors had neither applied for setting aside the ex parte decree nor they had preferred any appeal there against. In addition to above, they had failed to apply for impleadment as defendants to the suit for pre-emption. This order of the Executing Court passed on 23-2-1989 was challenged by the petitioners in a revision petition which too was dismissed on 15-4-1992 with costs by the Additional District Judge.
5. Mian Muhammad Younas Shah, learned counsel appearing on behalf of the petitioners, contended that after 31-7-1986 no decree could be passed in favour of the pre-emptor without the compliance of the requisite 'Talabs' as provided by section 13 of the N.-W.F.P. Pre-emption Act (X of 1987). In support of his contention the learned counsel placed reliance on Government of N.-W.F.P. v. Said Kamal Shah and others (PLD 1986 SC 360); that the petitioners being subsequent vendees were not made as defendants to the suit for pre-emption; that the petitioners were not bound by the ex parte decree and, therefore, they could not be dispossessed in execution of the said decree; that it was the duty of the Additional Civil Judge, respondent No-2 herein 'to afford to the petitioners an opportunity of adducing evidence in the case: and that the summary dismissal of the objection petition was illegal, arbitrary and unjust in the eyes of law. Reliance in this respect was placed on (i) Smt. Kaushalya Devi and others v. K.L. Bansal (AIR 1970 SC 838), (ii)
Chikkagangamma v. Chunchanakuppa Rudriah and another (AIR 1972 Mysore 222) and (iii) Sushil Chandra Sur and others v. Smt. Sadhana Bakobi and another (AIR 1982 Calcutta 417).
6. On the other hand, Mr. Abdul Samad Khan, learned counsel appearing on behalf of the legal representatives of Laiq Zaman deceased (respondent No-3) raised a preliminary objection as to the maintainability of this writ petition on the ground that since the petitioners are not aggrieved persons, therefore, they cannot invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. To substantiate his submission, the learned counsel relied on (i) M/s Muhammad Hussain and Co. v. Government of Pakistan in the Ministry of Finance (Revenue Division) Karachi and two others (PLD 1959 (W.P.) Lahore 340), (ii) S. Sajjad Haider v. Government of West Pakistan and another (PLD 1967 Lah. 938) and (iii) Abdul Qadir and others v.
Chairman, Allotment Committee and others (1987 SCMR 2104). On the question of applicability of Transfer of Property Act, 1882 to the N.-W.F.P., the learned counsel argued that although Transfer of Property Act, 1882 is not applicable to N.-W.F.P. But the Courts have frequently followed the principles of Transfer of Property Act, 1882. In support of his last mentioned contention the learned counsel referred to the case of Fazal Karim v. Muhammad Karim (AIR 1942 Peshawar 43).
7. We have given our anxious consideration to the respective contentions of the learned counsel for the parties. The first contention of the learned counsel for the petitioners has got no substance, for, it has been repelled by their Lordships of the Supreme Court in the recent case of Abdul Hamid and others v. Haji Shabbir Khan and another (PLD 1995 SC'. 649) where, in the case of Mst. Kharo v. Sher Afzal (1992 SCMR 1844), similar question whether or not the requisite 'Talbs' were made and all other conditions regarding thereto were satisfied, is held to be question of fact and it was open to the defendant vendee either to raise or give up the plea regarding Talbs. In the case before us, at the time of ex parte decree in the pre-emption suit was passed in favour of the plaintiff, neither the petitioners applied for setting aside the ex parte decree nor they preferred any appeal there against. Even the petitioners were absent at the time of passing of ex parte decree. The petitioner, therefore, cannot be allowed , to raise this plea for the first time in this Court.
8. The second contention of the learned counsel for the petitioners has .No force. It is clear that the mutations in question were the result of collusion between the petitioners on the one hand and the defendant-vendee in the suit on the other. The vendee-defendant has put his appearance before the executing Court on various dates and on 5-4-1987 in particular a date earlier than 'ex parte decree but neither he informed the Court about the said mutations nor applied for amendment in the written statement. Not only the contesting defendant kept silent over the alleged changed circumstances but the petitioners who claim beneficiaries of mutations and in physical possession of the suit land did not come forward for their impleadment as defendants in the suit. Apart from the above, when the suit was fixed for evidence of the defendant, he absented himself collusively and in consequence an ex parte decree was passed on 9-5-1987. It was stated at the bar that the contesting defendant has no evidence to refute the claim of the plaintiff/pre-emptor and that he in the first instance entered the mutation in the names of the petitioners during the pendency of the suit and managed to dismiss the suit in default and then absented himself on the date of ex parte decree and thus the plaintiff was kept in dark of all the misdeeds collusively. We have also noticed that even after the ex parte decree neither any application as provided under Order IX, rule XIII of the Civil Procedure Code nor any appeal was filed and the petitioners were waiting for execution proceedings to defuse the effect of the decree.
9. The other contention of the learned counsel for the petitioners holds no weight. It is well-settled that seeking relief in writ petition is not a right but discretionary which cannot be granted to a person who is guilty of committing collusion to deprive others of their legal rights. Thus, both the lower Courts have rightly overruled the objection of the petitioners and they are not entitled to any relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Had the petitioners or judgment-debtor challenged the ex parte decree under Order IX, Rule XIII, C.P.C., they would have got an opportunity of adducing evidence but in execution proceedings the objectors were rightly refused opportunity of adducing evidence particularly when they were not a party to the suit and the Executing Court cannot travel beyond the decree.
10. The learned counsel for the petitioners lastly attacked the orders of the two Courts below on the ground that under section 47 of the Civil Procedure Code, 1908, the petitioners being representatives of judgment-debtor had a right to challenge the validity of the ex parte decree.
Reliance was placed by the learned counsel on: (i) Parmeshari Din v. Ram Charan and others (AIR 1937 PC 260) and (ii) Chanan Singh v. Waryam Singh and others (AIR 1947 Lah. 175) to contend that the word 'representative' used in section 47, C.P.C. Is wider than 'legal representative and include a transfer fee'. We find no substance in this contention of the learned counsel for the petitioners. It has been clearly held in both the judgments cited above that the decree-holder could proceed against the transferee under the judgment-debtor. We tend to agree with the learned counsel for the respondent on the point that even if for the sake of argument it is admitted that the suit land was validly transferred during the pendency of the execution proceedings, they step into the shoes of judgment-debtor.
Now we examine one by one the authorities cited by the learned counsel for the petitioners. In the case of Smt. Kaushalya Devi etc. (AIR 1970 SC 838) one Raghunath Sharma predecessor-in-interest of the plaintiff instituted a suit for the eviction of his tenant, K.L. Bansal and after filing of written statement and framing of issues by the Court, an application alognwith, a compromise between the parties was filed. On the basis of the said compromise between the parties a decree was granted in favour of the plaintiff against the defendant. The facts of the cited case are at all different from the case in hand and, therefore, need not to go in detail any further. In the second authority of Chikkagangamma (AIR 1972 Mysore 222) a declaration for possession of the suit house was sought, which was not entertained up to the final remedy. This case also does not apply to the instant case. The last mentioned authority of Sushil Chandra Sur (AIR 1982 Calcutta 417) relating to eviction of a tenant on the ground of default in payment of rent and requirement of premises for rebuilding also does not apply to the present case which need not to go any further in detail.
12. In the case of Fazal Karim v. Muhammad Karim and others (AIR 1942 Peshawar 43) which was also relied upon by the learned counsel for the respondent the principles as envisaged by section 52 of the Transfer of Property Act, 1882, were applied in a pre-emption suit. Section 52 of the said Act envisaging the principle of 'lis pendens' reads as under:- "52. Transfer of property ending suit relating thereto.--During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government, .... Of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party. To the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. "
"Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, has become unobtainable by reason of the expiration thereof by any law for the time being in force. "
To elaborate this point further reference may be made to Muhammad Saddiq v. Ghasi Ram (AIR 1946 Lahore 322) wherein the principle of 'lis pendens' as envisaged in the above quoted section 52 of the Act covers not only the suits but also the proceedings and the explanation added in the wisdom of legislation completely covers proceedings before the final decree or order. In the instant case, the application for restoration of the suit was filed on the same day when it was dismissed for non-prosecution on 3-12-1986. As stated earlier, the mutations in favour of the petitioners were entered during the pendency of the suit on 17-11-1986 and 1-12-1986. The plaintiff/respondent No.3 was not sleeping over his right and applied immediately for restoration of the suit and thus the proceedings for restoration of the suit was very much going .On 7-12-1986 when the mutations in question were sanctioned. Keeping in view the facts and the circumstances of the case, it can safely be held that mutations Nos.7808 and 7810 were entered during the pendency of the suit and attested at the time of restoration proceedings and under the principles of 'lis pendens' no right or title had been transferred to the petitioners.
13. The impugned orders having been rightly passed by the two Courts below do not call for interference by this Court in exercise of the Constitutional jurisdiction. No illegality or material irregularity has been pointed out by the learned counsel appearing on behalf of the petitioners.
This writ petition being incompetent is accordingly dismissed with costs.