' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioners have instituted instant petition for leave to appeal against the judgment dated 4th May, 2000 passed by a Division Bench of Lahore High Court, Bahawalpur Bench whereby F.A.O. No,12 of 2000 filed by them has been dismissed.
2. Precisely stating the facts necessary for disposal of instant petition are that on 19th September, 1984, Civil Judge, Chishtian granted a decree in favour of respondent Ch. Ali Muhammad. On appeal (R.F.A.) No,98/94/BWP, learned High Court set aside the decree subject to payment of costs of Rs,50,000 by lite Syed Ghulam Makhdoom Jehanian within 15 days failing which, the appeal shall be deemed to have been dismissed. He could not deposit the amount within stipulated period but filed an application being No,C.M.25 of 1996/BWP wherein he prayed for extending the time for depositing the amount, which was also dismissed. In the meanwhile, petitioners got transferred the land from respondent No,2 Mst. Fazal Ellahi predecessor-in-interest of respondent No,3 vide a mutation of sale and exchange. Subsequent thereto on 21st July, 1996 respondent No,1 Ch. Ali Muhammad filed execution application in the Court of Civil judge, Chishtian (Executing Court) praying for execution of the decree passed on 19th September, 1984. The petitioners challenged the execution of the decree by filing an application under section 12(2), C.P.C. On the ground that the same had been obtained through fraud and collusion, without impleading them as party in the suit. Learned Civil Judge dismissed the application on 17th November, 1998. The order so passed was conceded to by the petitioners as they did not challenge it before next forum. In the meanwhile, petitioners filed an objection petition on the execution of the decree on 17-6-1999 knowing well that their earlier application has been rejected on 12-11-1998. Learned executing Court vide order, dated 21-4-2000 overruled the objection as such petitioners filed F.A.O. No,12 of 2000 before the High Court. A learned Division Bench of the Lahore High Court vide impugned order dismissed the appeal. As such instant petition for leave to appeal has been filed.
3. Mr. Shaukat Ali Mehr, learned Advocate Supreme Court for the petitioners contended that petitioners are bona fide owners of the property for value because they acquired the same from late Syed Ghulam Makhdoom Jehanian and others, therefore, the decree, dated 19th September, 1984 cannot be executed against them. He further stated that the execution application was barred by time as such was not liable to be executed. It was also his contention that a decree which is nullity in eye of law cannot be executed, therefore, he prayed that impugned order may be set aside and decree, dated 19th September, 1984 may be declared inoperative against them.
4. After having heard the learned counsel for the petitioners at length, we would like to observe at the very outset that before the executing Court question of non-execution of the decree on account of being barred by limitation was not agitated, therefore, for the first time learned counsel cannot raise voice in this behalf. As far as remaining contentions of the learned counsel are concerned, those are also devoid of force. Firstly in view of the fact that against the same decree petitioners filed an application under section 12(2), C.P.C. Wherein almost the same objections were raised. Particularly to the effect that they were not impleaded as party in the suit, in respect whereof ex parte decree was taken by respondent No, 1 . It is an admitted position that the decree was passed by the Civil Judge, Chishtian in favour of Ch. Ali Muhammad as far back as on 19th September, 1984, and the petitioners were nowhere in picture, as such there was no question of impleading them as party. Secondly, when the petitioners had decided to acquire the ownership of the land from late Syed Ghulam Makhdoom Jehanian, it was incumbent upon them to have certified that the property is free from any encumbrance. In addition to all this, it is important to note that the decision of the Civil Judge passed while disposing of the application under section 12(2), C.P.C. Filed by the petitioners was accepted by them. Meaning thereby that the validity of the decree dated 19th September, 1984 achieved finality. Thus after having accepting the order of Civil Judge, petitioners could not be allowed to raise argument that the decree is nullity in the eye of law and could not operate against them while objection petition in respect of the property in dispute on 19th September, 1984, therefore, they can sue them for adequate compensation according to law.
' Thus for the foregoing reasons, we see no force in instant petition, as such same is dismissed and leave declined.