Law: Civil Procedure Code (V of 1908)

Section: 12(2)

Civil Procedure Code (V of 1908)--- ----S.12(2)---Fraud and misrepresentation---Ex-parte decree, setting aside of---Scope---Contention of applicant was that prior to institution of suit, suit property had been transferred to him and decree in question had been obtained by means of fraud and misrepresentation---Trial Court set aside the impugned decree but Appellate Court dismissed the application for setting aside of ex-parte decree---Validity---Suit property had already been transferred in favour of petitioner prior to institution of the suit---Appellate Court had erred in law while dismissing the application under S.12(2), C.P.C.---Impugned order passed by the Appellate Court was result of mis-reading and non-reading of evidence which was set aside---Revision was allowed in circumstances. THIS JUDGMENT DELIVERED BY: CH. MUHAMMAD MASOOD JAHANGIR, JUSTICE:---.--- There was no dispute to the effect that suit house measuring 06 Marlas was exclusively titled by Nazir Ahmed father of the petitioner. The ownership was transferred in favour of petitioner by his father through attestation of mutation No. 316 dated 04.03.2002 and four days thereafter Dost Muhammad, the real brother of Nazir Ahmed, brought a suit for specific performance of oral agreement dated 15.01.2002 contending therein that he had purchased half of the suit property from his brother against a consideration of Rs.24,000/-. After initiation of ex parte proceedings it was ex parte decreed on 08.11.2002. No sooner the ex parte decree came into the knowledge of the petitioner, he filed an application under section 12(2) of the Code, 1908 mainly alleging therein that the property prior to institution of suit had already been transferred to him, but without his impleadment and issuance of notice and that the decree was procured by means of fraud and misrepresentation, which was defended by Dost Muhammad-decree holder with the firm stance that prior to institution of suit, the mutation was not attested in favour of present petitioner and after appreciating evidence brought on lis file the application was allowed by the learned Civil Court vide judgment dated 10.04.2010, however, the learned Additional…

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