SARDAR MUHAMMAD Versus BASHIR AHMAD

ORDER

MAULVI ANWARUL HAQ, J. --C.M. No.210-C of ' 2007 has been filed under section 12(2), C.P.C. for setting aside of the judgment and decree dated 13-12-2006 passed by this Court in C.R. No.2165, of 2002 while C.M. No.211-C of 2007 prays for an interim relief.

2. The facts leading to the filing of the civil revision and the reasoning for the judgment are stated in the same which need not be reproduced here.

3. Learned counsel for the applicants contends that notwithstanding the fact that all his clients have acquired portions of suit-land pendente lite, in fact, during the pendency of the civil revision yet they are bona fide purchasers and are entitled to the protection of section 41 of the Transfer of Property Act, 1882. According to him, the judgment has been obtained by collusion. He relied on the cases of Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others (PLD 2003 SC 81.8) and Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SMCR 2003). When asked as to who has colluded, he says that it is the revision petitioners and Bashir Ahmad respondent No.1 therein.

4. I may note here that the suit filed by the said revision petitioner was contested by the respondents Nos.2 and 3 in this case. It was dismissed by the learned trial Court 1 and the first appeal was also dismissed. The said civil revision was heard only in the presence of Raja Muhammad Raiz Satti, Advocate, who along with Mr. Manzoor Hussain Basra who is standing before me today, was the counsel, for, the said respondents. As noted by me above, the civil revision was decided after hearing the said learned counsel and taking into consideration the points on which it was admitted to hearing as I had observed that I was not inclined to dismiss the civil revision for non-prosecution. To my mind, there is no question of any collusion in the entire said proceedings.

5. Coming to the said judgments, in the said case of Muhammad Nawaz Khan which was decided by the Hon'ble Supreme Court on 9-5-2002 the allegation was that the decree-holder after alienating the property while the R.S.A. was pending in this Court, in the year 1969 proceeded to enter into a compromise with the judgment-debtor upon receipt of Rs.5,000 on 1-10-1969 and waived all his rights under the decree passed in his favour. The observations of their Lordships in the last but one para of the judgment at page 2008 are as follows:

"In the present case, the petitioner purchased the property from the decree-holder and the litigation between the decree-holder and the judgment-debtor finally ended as a result of compromise, therefore, dismissal of application under section 12(2), C.P.C. summarily in the light of principle of lis pendens would not be proper."

6. In the said case of Fazal Karim through Legal Heirs and others (decided by the Hon'ble Supreme Court on 26-5-2003) their Lordship discussed in detail the term "collusion". I may note in the very )eginning that apart from the fact that in the said case also the allegation was that after alienating the land to 3rd party a compromise was got recorded and the appeal was accepted on' the basis of the same, the facts of the said case are wholly different as stated in the some detail in the said case by their Lordships. Be that as it may, the paramount facts which weighed with their Lordships were that an agreement to sell was entered into with the. 3rd party on 1-10-1979, the sale-deed was executed on 30-12-1979 while it was registered on 23-8-1981 and in between the R.S.A. was got decided on.7-4-1981 by the vendor in favour of the opposite party by a compromise. This was found to be collusive and costs were also imposed on the concerned parties by the Hon'ble Supreme Court. In the present case, there is no element of collusion involved. I may further state here that rule 102 of Order XXI, C.P.C. embodying the statutory rule of lis pendens with reference to the right to file objections has also to be kept in consideration. This is an age old rule and was present in the Codes that were enforced in the years 1859, 1877 and 1882 as well. Both the C.Ms. are dismissed accordingly.

S.A.K./S-67/L Application dismissed.