MIAN HAMID FAROOQ, J.-- Fazal Mehdi etc the revision petitioners, successors-in-interest of the original defendant, namely, Mirza Khan, have filed the present petition invoking the revisional jurisdiction of this Court thereby challenging the judgment and decree dated 21.9.1994, whereby the learned Additional District Judge, Mandi Baha-ud-Din, while dismissing the appeal of the petitioners confirmed the judgment and decree of the learned Civil Judge, Mandi ,Baha-ud-Din, dated 20.12.1987, whereby the learned Court passed a decree for possession through pre-emption in favour of the respondent.
2. Brief facts leading to the filing of this petition are, that the respondent instituted a suit for possession through pre-emption against the predecessor-in-interest of the petitioners, namely, Mirza Khan on payment of Rs. 1,00,000/- or the price fixed by the Court. Written statement was filed by the predecessor-in-interest of the petitioners and out of the divergent pleadings of the parties certain issues were framed. The respondent/plaintiff produced affirmative evidence and thereafter the case was fixed for evidence of the predecessor-in-interest of the petitioners on 20.12.1987. On this date the ,predecessor-in-interest of the petitioners got recorded his statement before the Court and pursuant thereto a consent decree was passed by the learned Civil Judge, Mandi Baha- ud-Din, in favour of the respondent vide judgment and decree dated 20.12.1987. Aggrieved by the said judgment and decree, the predecessor-in-interest of the petitioners , filed an appeal, which was accepted vide order dated 30.9.1989, passed by Mr. Muhammad Fayyaz Ahmad Khawaja, the then Additional District Judge, Gujrat. Against the said judgment and decree the respondent filed revision petition before this Court, which was accepted and the case was remanded to the first appellate Court with the directions to decide the appeal after hearing the parties in accordance with law and after remand the learned Additional District Judge dismissed the appeal and hence the present revision petition.
3. In support of the petition the learned counsel with reference to the admitting order dated 5.10.1994, while relying upon Muhammad Ashraf and 14 others Versus Ziarat Gul (P.L.D. 1994 Peshawar 48) has contended that in pre-emption suits no consent decree can be passed. On the other hance, the learned counsel for the respondent has contended that firstly the reported case relied upon by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case and that no appeal was competent against the consent decree.- It has further been argued by the learned counsel that if, without conceding, any fraud was committed during the proceedings before the Trial Court, the remedy available to the petitioners is not the appeal; but by way of filing an application under section 12(2) of the Code of Civil Procedure.
4. The contention raised by the learned counsel of the petitioners is highly misconceived and is devoid of 'force. I have perused the judgment relied upon by the learned counsel for the petitioners.
In the reported case a consent decree in a pre-emption suit was passed by the High Court, but no appeal was filed against the consent decree. As a matter of fact in that case the consent decree was challenged, by the aggrieved party, through the filing of an application under section 12(2)
C.P.C. And while adjudicating upon the said application the High Court came to the .Conclusion that the decree was obtained through fraud and misrepresentation and thus, the consent decree was set aside. In the instant case, admittedly, the petitioners have not filed any application under section 12(2) C.P.C., despite the fact that in the impugned judgment passed by the first appellate Court it has been held, while dismissing the appeal, that the petitioners can file a petition under section 12(2) C.P.C. To set aside the impugned judgment and decree. In this perspective the only argument raised by the learned counsel falls to the ground.
5. Admittedly, the consent decree was passed on the statement of the predecessor-in-interest of the petitioners, which according to the petitioners was obtained by fraud and misrepresentation.
Be that as it may, under section 96(3) of the Code of Civil Procedure no appeal lies against a decree passed by the Court with the consent of the parties. Under this clear provision of law the appeal filed by the predecessor-in-interest of the petitioners was misconceived untenable and has rightly been dismissed by the first appellate Court. It is settled that by Consenting to the resolution of controversy through a compromise, the parties give up the right of appeal and consent decree operates as an estoppel and is binding upon the parties.
6. Having failed in the principal argument, the learned counsel then tried to unsuccessfully argue the other grounds taken in the revision petition. I have perused the memorandum of appeal filed by the petitioners before the learned District Judge, wherein the grounds now urged before this Court have not been taken at all. Suffice it to say, that the said grounds cannot be taken for the first time before the revisional Court as these grounds/pleas were not taken in the memorandum of appeal filed before the learned Additional District Judge, therefore, these pleas cannot be taken into consideration by this Court and are, of no avail to the petitioners at this belated stage.
7. Learned counsel of the respondent has, while relying upon Umar Din and another Versus Muhammad Sadiq Hussain and 15 others (1993 S.C.M.R. 1089), submitted that the consent decree was passed for a valuable consideration of Rs. 2,27,000/-, therefore, admission in the Court of such fact would be deemed to be sale of property in favour of the respondent/plaintiff. There is a considerable force in the argument of the learned counsel of the respondent and is completely in line with the afore stated judgment rendered by the Hon'ble Supreme Court.
8. For the foregoing reasons and findings, I am of the considered view that the judgments and decrees dated 21.9.1994 and 20.12.1987, passed by the learned Additional District Judge and the learned Civil Judge are perfectly in accordance with law, no exception can be taken and they do not call for any interference by this Court in exercise of the .Revisional jurisdiction. The up-shot of the above discussion is that the revision petition has no merits, which is hereby dismissed, leaving the parties to bear their own costs.