MST. TAJ BEGUM Versus FAQIR SHAH AND OTHERS

ORDER

1. This is a revision petition against the judgment and decree of the Additional Sub‑Judge, Muzaffarabad, dated 13‑8‑1968 by which a compromise decree for possession of the suit land by way of redemption was passed in favour of Faqir Shah and Lall Shah against Mst. Bibi Khanum.

2. The facts giving rise to this revision petition are that Faqir Shah and Lall Shah brought a suit for possession of land Khasra No. 58 measuring 4 kanals and 19 marlas situate in village Domel Syedan Tehsil Muzaffarabad after redemption against Mst. Bibi Khanum widow of Fateh Muhammad resident of Domel Syedan. The suit was instituted on 12‑8‑68 and on 13‑8‑1968 the parties having presented a compromise deed before the Court, a decree for possession by way of redemption was passed in favour of the plaintiff against Mst. Bibi Khanum, the only defendant. Mst. Taj Begum has come up in revision against the said compromise decree claiming to be a person interested in the suit land because she is the daughter of Mistry Fateh Muhammad and Mst. Bibi Khanum defendant, the widow of Fateh Muhammad, alleging that the plaintiff's‑respondents had fraudulently and wrongfully obtained a compromise decree to the detriment of her share in the suit land which had been mortgaged for consideration with her deceased father.

3. Learned counsel for Faqir Shah and Lall Shah respondents has taken a preliminary objection that Mst. Taj Begum not being a party to the suit in which the compromise decree was passed has no locus standi to come up in revision. He teas also pointed out that her remedy was to bring a separate suit to set aside the compromise decree; and that she had already filed a declaratory suit to that effect in the subordinate Court which suit is still pending. Learned counsel for the petitioner argues that in a redemption suit under Order XXXIV, rule 1, C. P. C, all of the heirs of the deceased mortgages were necessary parties and the compromise decree had been passed without impleading all the heirs. Mst. Taj Begum has stated in open Court that her deceased father Mistry Fateh Muhammad was survived by Mst. Bibi Khanum, the widow, Muhammad Bashir, the son, now deceased, the petitioner herself and her sister Mst. Zarina now deceased. She also states that her brother Muhammad Bashir also died leaving a widow and a minor daughter; and that Mst. Zarina her sister also left behind three children who would all be heirs and interested in the suit land. Learned counsel for the petitioner also argues that under Order XXXIV, rule 7, C. P. C. it was incumbent on the Court to pass a preliminary decree which is necessary in all redemption cases and then a final decree was to follow.

4. In cases in which section 115, C. P. C. applies the High Court has a discretion to interfere or not according to the circumstances of the case. The general rule, however, is that the special and extraordinary powers under this section will not be exercised in favour of interference where the applicant has another remedy open to him. Where the aggrieved party could bring a separate suit to challenge the orders sought to be revised, the High Court will not, as a rule, interfere in revision. There is a long string of case‑law in supp3rt of this proposition. Mst. Taj Begum, the aggrieved party, not only could bring a separate suit but has already brought a separate suit to challenge the compromise decree, therefore, I don't want to prejudice the trial of her suit by giving any opinion in the revision petition.

5. The revision petition is rejected as incompetent. No order is made as to costs.

6. A. E.

7. Petition rejected.