' The petitioners through the present revision petition have assailed the orders of the learned Additional District Judge, Sheikhupura dated 19-12-1995 by virtue of which an application moved by the present petitioner under section 12(2) of the C.P.C. For setting aside the judgment and decree dated 10-9-1988 passed in civil appeal, filed by. Muhammad Anwar, was dismissed.
2. The facts in brief are that Muhammad Anwar, respondent No,1 before this Court, filed a civil suit for specific performance of agreement to sell the property measuring 1 Kanal and 13 Marlas situated in Qila No,11/2, Square No,130, Ghari Minara, Tehsil and District Sheikhupura with the averments that Muhammad Ramzan, the defendant before the trial Court, agreed to sell the said property in his favor for a consideration of Rs,30,000 and received a sum of Rs,20,000 in advance and on the payment of the remaining amount of Rs,10,000 Muhammad Anwar claimed specific performance. The suit was contested in between the parties. On 16-1-1985 ex parte proceedings were ordered against the defendant, Muhammad Ramzan alias Jhana. However, at a latter stage an application to set aside the ex parte order was moved by Ramzan alias Jhana and the present petitioners also moved an application under section 12(2) of C.P.C. The learned trial Court at the time of disposal of the application for setting aside of the ex parte orders, orders against Ramzan alias Jhana but held that application of the present petitioners under section 12(2) of C.P.C. As being premature as no decree had still been passed. The civil litigation continued in between Muhammad Anwar and Ramzan alias Jhana and ultimately the civil suit brought by Muhammad Anwar for specific performance as abovestated was dismissed by the learned trial Court on 29-6- 1988. Muhammad Anwar, respondent No,1, feeling himself aggrieved filed an appeal before the learned Additional District Judge, Sheikhupura. During the pendency of this appeal on 10-9-1988 Ramzan alias Jhana made a conceding statement in favor of Muhammad Anwar and resultantly the appeal of Muhammad Anwar was allowed, the judgment and decree of the learned trial Court was set aside and the suit for specific performance was decreed in favor of the plaintiff subject to deposit of Rs,10,000 in the Court. This decision of the appeal of Muhammad Anwar on the basis of conceding statement of Ramzan alias Jhana gave a cause of filing of the application under section 12(2) of C.P.C. By the present petitioners before that Court with the averments that the judgment and decree dated 10-9-1988 was result of fraud, misrepresentation and be set aside. It was alleged that the present petitioners prior to making of the statement by Ramzan alias Jhana had purchased the suit property from said Ramzan alias Jhana through registered sale-deed dated 15-7-1984 for a valuable consideration and after the execution of the sale-deed in favor of the present petitioner Ramzan alias Jhana- was no longer owner of this property, therefore, he was not legally competent to make a conceding statement in favor of Muhammad Anwar. It was further alleged that Muhammad Anwar and Ramzan alias Jhana were related to each other as nephew and uncle; that Ramzan alias Jhana was issueless, as such they collusively managed the said conceding statement and played fraud upon the present petitioners and also upon the Court. The learned Additional District Judge after having reply to this application under section 12(2) of C.P.C., moved by the present petitioners, and recording evidence of the parties proceeded to dismiss the application vide judgment and decree dated 19-12-1995. The present petitioners feeling themselves aggrieved have filed the present revision petition.
3. Both the learned counsel for the parties have been heard and the entire record with their assistance has been perused.
' The submission of the learned counsel for the petitioners is that after having transferred the property, in favor of the petitioners through registered sale-deed, dated 15-7-1984, Ramzan alias Jhana was no longer the owner of the property and was not legally competent to make a conceding statement in favor of Muhammad Anwar. It is also submitted that even the deposit of Rs,10,000 made by Muhammad Anwar in compliance with the terms and conditions of the decree had been withdrawn by Muhammad Anwar from the Court subsequently. It is added that certain litigation before the Revenue Authorities did take place in which Muhammad Anwar admitted himself to be the tenant of the present petitioners.
4. On the other hand, learned counsel for the respondent has controverted these submissions and has asserted that the entire litigation in between Muhammad Anwar and Ramzan alias Jhana was in the knowledge of the present petitioners and the present petitioners purchased the suit property during the pendency of the civil suit, as such their sales are not protected. It is also submitted that the proceedings of the suit were in the knowledge of the petitioners but they never submitted any application for their impleadment in the said proceedings.
5. Giving due consideration to the submissions of the learned counsel for both the parties, the facts relevant for determination are that the original suit brought by Muhammad Anwar for specific performance of the agreement to sell dated 23-12-1983, alleged to have been executed in his favor, was instituted on 29-4-1984. In the proceedings of said suit Ramzan alias Jhana was proceeded ex parte. At a latter stage ex parte proceedings were set aside against said Ramzan alias Jhana. At this time the present petitioners had moved an application under section 12(2) of C.P.C. On the basis of sale-deed dated 15-7-1984 executed by Ramzan alias Jhana in the favor but it was observed by the learned trial Court that the ex parte proceedings having been set aside against Ramzan alias Jhana no decree existed at that time and the petitioners were having no course open for them to move an application under section 12(2) of C.P.C. And it was dismissed as being premature. The facts reveal that the observation of the trial Court was correct. The proceedings of the suit terminated finally as a result of dismissal of the suit of Muhammad Anwar by the trial Court on 9-6-1985. Muhammad Anwar challenged the judgment and decree of the trial Court before the First Appellate Court. During the pendency of the appeal Ramzan alias Jhana made a conceding statement on 10-9-1988. Resultantly the appeal was accepted and the suit of Muhammad Anwar was decreed in his favor by the learned Appellate Court vide judgment dated 10-9-1988 subject to deposit of Rs,10,000 by Muhammad Anwar in the Court. It is relevant to mention here that Ramzan alias- Jhana after execution of sale-deed dated 15-7-1984 in favor of the petitioners was not competent to make the abovesaid statement in favor of Muhammad Anwar. He. Has done so fraudulently and in collusion with Muhammad Anwar. The factum of sale in favor of the petitioners by Ramzan alias Jhana was asserted on the filing of application under section 12(2) of C.P.C. By the petitioners when initially the suit was ex parte decreed. Neither Ramzan alias Jhana challenged the sale-deed in favor of the petitioners nor Muhammad Anwar ever tried to implead the petitioners as defendants in the suit filed by him. This shows their collusiveness.
6. Apart from this when the Court acted upon the statement of Ramzan alias Jhana and passed a consending decree dated 10-9-1988 and ordered Muhammad Ramzan to make a deposit of Rs,10,000 as a condition precedent of the decree for specific performance, it was Muhammad Anwar who although did make a deposit of this amount but again it was Muhammad Anwar who made an application (Exh.P.N) for the withdrawal of the said amount and withdrawn the amount through receipt of Exh.P.O. This fact clearly establishes collusiveness in between Muhammad Anwar and Ramzan alias Jhana. There is another aspect of the matter that after the withdrawal of Rs,10,000 by Muhammad Anwar, deposited in terms of the decree, the terms and conditions of the decree had been violated, therefore, no decree stood existed in favor of Muhammad Anwar. Even in the ejectment proceedings, which were instituted somewhere in the year 1987 by the present petitioners against Muhammad Anwar, Muhammad Anwar admitted himself to be the tenant under the petitioners and admitted them as his landlords. Copy of the ejectment petition is available on record as Exh.P.P. It becomes crystal clear that Ramzan alias Jhana by making a conceding statement had played fraud upon the petitioners as well as upon the Court, as such the orders of the learned .Additional District Judge, who was to give a clear finding upon the practising of fraud and misrepresentation by Ramzan alias Jhana at the time of passing of the decree, did not consider this aspect of the case. As such the learned Additional District Judge did not read the evidence on record and also misread the evidence on record. The orders of the learned Additional District Judge suffer from illegality and material irregularity and are liable to be set aside.
7. In view of the above discussion, this revision petition is allowed, the orders of the learned Additional District Judge dated 19-12-1995 are hereby set aside and the application under section 12(2) of C.P.C. Moved by the present petitioners is allowed. The result would be that the suit for specific performance filed by Muhammad Anwar is dismissed. No order as to cost's.