' HAMID ALI MIRZA, J.---This civil appeal by leave of the Court is directed against the judgment dated 18-4-1993 passed in Civil Revision No,13 of 1993 (Mrs. Esmeraida Concaicao Bertha Redrigues Da Costa v. Sabir Hussain and another) whereby the revision was dismissed by the learned Judge in Chamber of Sindh High Court:
2. Brief facts of the case are that agricultural land admeasuring about 334 acres situated in Deh Bathoro, Taluka Mehar of District Dadu and Deh Sonabar, Taluka Dokrai of District Larkana was owned by Michael Louis who is said to have expired on 13-10-1977 at Larkana. Respondents Sabir Hussain and Muhammad Hanif filed Suit No,21 of 1979 against the said Michael. Louis for specific performance of the contract on the basis of sale agreement dated 18-5-1978 for consideration of Rs,1,50,000 out of which Rs,1,45,000 were said to have been paid to him and balance of Rs,5,000 was payable at the time of registration of sale-deed. The said suit was decreed ex parte on 5-10-1980.
The appellant made an application under section 12(2), C.P.C. On 27-1-1982, which application was dismissed for non-prosecution on 15-8-1982. The appellant moved an application under section 151, C.P.C. For restoration of her application under section 12(2), C.P.C., which application was also dismissed on 9-10-1982. Thereafter, an application under Order 47 Rule 1 read with' section 151, C.P.C.
Was moved on 18-10-1982 for review of the order dated 21-8-1982 dismissing application under section 12(2), C.P.C., which application was also dismissed on 23-12-1982 by learned Senior Civil Judge, Mehar. The said orders were challenged before Sindh High Court in Civil Revision No,13 of 1983 which too was dismissed as per impugned judgment. This Court granted leave to appeal in the following terms:-- "After hearing learned counsel for petitioner and going through the impugned judgments together with the documents on the file, leave is granted to consider whether the application under section 12(2), C.P.C. Moved by the petitioner was adjudicated upon strictly in accordance with law and dictates of natural justice.
3. We have heard the learned counsel for the appellant and gone through the record. Contentions of the learned counsel for the appellant are that the appellant was condemned unheard and his application under section 12(2), C.P.C. Was dismissed for non-prosecution when the appellant's counsel could not appear due to his pre-occupation at Karachi. He further contended that respondents had played fraud to deprive the appellant of valuable property inherited by her, considering that Michael Louis as per death certificate and burial certificate filed at pages 58 and 59 of the paper book breathed his last on 13-10-1977 at Larkana, whereas the alleged sale agreement was said to have been executed by him on 18-5-1978, consequently the said agreement was a forged, hence the decree obtained by the respondents on the basis of the said forged document was nullity in the eye of law,
4. We find substance in the contentions of the learned counsel for the appellant. Prima facie the documents filed would show that Michael Louis, the original owner of the property in dispute breathed his last on 13-10-1977 whereas the alleged agreement of sale is said to have been executed on 18-5-1978, therefore, the original owner could not have executed the agreement of sale after his death, and if that was found to be correct, the decree obtained would be nullity having been obtained by practising fraud against dead person. In the circumstances the impugned order passed by learned Judge in Chamber and the orders passed by the Courts below with regard to the disposal of the application under section 12(2), C.P.C. Are set aside, consequently the appeal is allowed and the case is remanded to the learned Senior Civil Judge, Mehar to hear the application filed under section 12(2), C.P.C. By the appellant and dispose of the same on merits after giving opportunity of hearing to the parties.