' On the basis of an agreement for reference to the Arbitration of all the disputes regarding division, distribution and sharing of all properties left by Haji Mubarak Din, an Award was announced by the Arbitrator. The Arbitrator filed the Award in Court on 14-4-1984, which was made rule of the Court on 12-4-1984/31-5-1984. It is alleged that on 24-9-1984 Mst. Walayat Begum, predecessor-in- interest of the petitioners, herein, came to know about the said decree and, therefore, a petition under section 12(2), C.P.C., was filed by her on 5-5-1987. The predecessor-in-interest of respondents Nos.1 to 3 Haji Ghulam Jillani' contested the application. The learned trial Judge vide his order, dated 3-3-1992 dismissed the petition while relying upon the judgment of the Hon'ble Supreme Court of Pakistan reported as Government of Sindh v. Ch. Fazal Muhammad and another (PLD 1991 SC 197). Aggrieved from the order of the learned Civil Judge, Lahore, dated 3-3-1992 the petitioners have filed this revision petition before this Court.
2. The learned counsel for the petitioners has argued that the authority cited viz. Government of Sindh v. Ch. Fazal Muhammad and another (supra) could not be deemed to have been attracted to the facts and circumstances of the case. According to the learned counsel, the petition under section 12(2), C.P.C., was maintainable and the correct view regarding challenging the proceedings making rule of the Court by a decree passed by the Civil Court under the law has been enunciated in the case reported as Muhammad Yasin v. Sh. Hanif Ahmad and 4 others (1993 SCM R 437) and Abdul Basit and another v. Muhammad Ashraf Dar and another (2000 CLC 920).
3. Conversely, the learned counsel for the respondents has argued that from the facts and circumstances mentioned in the petition under section 12(2), C.P.C., the provisions of section 12(2) are not attracted. Reliance has been placed on Nazir Ahmad v. Muhammad Sharif and others (2001 SCM R 46).
4. There is no doubt about the fact that the predecessor-in-interest of the petitioners filed an application under section 12(2), C.P.C., challenging the proceedings of the Civil Court making the Award rule of the Court and the learned Civil Judge, Lahore dismissed the application on the ground that the same was not maintainable as the factum of misrepresentation and fraud is not apparent. According to the learned Civil Judge, the misconduct, if any, attributed on the part of the sole Arbitrator was open to objections to be submitted at the relevant time.
I am afraid, the learned Civil Judge has not interpreted the provisions of section 12(2), C.P.C., and has not followed the correct law. No doubt, the misconduct, if any, attributed on the part of the sole Arbitrator, was open to objection to be submitted at the relevant time and can be attacked under the provisions of the Arbitration Act, 1940, but if the petition is filed on the ground of fraud or misrepresentation regarding proceedings relatable to the making rule of the Court by the Civil Court and the consequence of that some decree is passed the same is liable to be set aside by filing a petition under section 12(2), C.P.C. In case reported as Muhammad Yasin v. Sh. Hanif Ahmad and 4 others (1993 SCM R 437) it has been held:- "Sections 17, 30 & 33---Civil Procedure Code (V of 1908), S.12(2)---Decree on basis of award--- Setting aside of---Provisions of S. 12(2), Civil Procedure Code, 1908, whether applicable where a decree had been passed under S.17, Arbitration Act, 1940---Arbitration Act, 1940, contains no provision for challenging such decree on ground that same had been obtained by misrepresentation and fraud, therefore, applicability of S.12(2), Civil Procedure- Code, 1908, had not been excluded. Appellant's application under S. 33, Arbitration Act, 1940 and S.12(2), Civil Procedure Code, 1908, being composite application for determination of effect of the agreement as provided by S.33, Arbitration Act, 1940, and challenging the decree on ground of fraud and misrepresentation should have been considered on merits instead of dismissing it on technical ground that no application under S.12(2), Civil Procedure Code, 1908, was maintainable---Application for setting aside decree obtained on basis of Award under both the provisions viz. S.33, Arbitration Act, 1940 and S.12(2), Civil Procedure Code 1908, was thus, maintainable."
' The above said view of the Hon'ble Supreme Court has been followed by this Court in case Abdul Basit and another v. Muhammad Ashraf Dar and another (2000 CLC 920), in which, in similar circumstances, sections 30, 33 of the Arbitration Act (X of 1940) and section 12(2) of C.P.C., came for interpretation and the Court held:-- "(a) Arbitration Act (X of 1940)--- ----Ss.30 & 33---Civil Procedure Code (V of 1908), S.12(2)---Award, challenge to---Remedy--- Where only the award was challenged the remedy available was provided under Ss.30 and 33 of Arbitration Act, 1940---Where, however, the judgment and decree was challenged on the basis of misrepresentation or fraud, no provision existed in Arbitration Act, 1940 providing remedy against such decree---Application under S.12(2), C.P.C., was, thus, competent in circumstances."
' The case of Nazir Ahmad v. Muhammad Sharif and others (2001 SCM R 46) (supra), relied upon by the learned counsel for the respondent is not applicable to the fact and circumstances of the present case because the ratio of the case is regarding framing of the issues in petition under section 12(2), C.P.C.
The learned Civil Judge has not exercised the jurisdiction vested in him in dismissing the petition under section 12(2), C.P.C., which was maintainable and, therefore, committed material irregularity and illegality, which judgment is liable to be set aside by this Court in exercise of its revisional jurisdiction.
' For what has been discussed above, this revision petition is accepted, the order dated 3-3-1992 passed by the learned Civil Judge, Lahore is set aside and the case is remanded to the trial Court