SAJJAD AHMAD vs Mst. ASMA KHATUN
This petition for leave to appeal challenges an order of the Lahore High Court, which dismissed the petitioner's civil revision against an ex parte decree. The petitioner, having been divorced from the respondent, faced a suit for the recovery of dowry, resulting in an ex parte decree after he failed to appear in court. Subsequently, the petitioner's brother filed an objection petition against the execution of the decree, which was dismissed. The petitioner's later appeal against the ex parte decree was dismissed as time-barred, and the High Court affirmed this decision. The core legal question was whether the petitioner was unaware of the ex parte decree and whether the lower courts erred in their findings. The Supreme Court held that the petitioner was aware of the decree, noting that his brother's objection petition regarding the execution proceedings served as constructive notice. The Court affirmed the dismissal, establishing the principle that questions of fact, such as knowledge of an ex parte order, cannot be re-agitated at the appellate stage when evidence suggests awareness.
- Can a question of fact regarding knowledge of an ex parte decree be agitated in a revision petition?
- Does the filing of an objection petition by a family member against the execution of a decree constitute evidence of the judgment debtor's knowledge of that decree?
- Section 115, Code of Civil Procedure 1908
ORDER
ASLAM RIAZ HUSSAIN, J.--This petition is directed against the order of the Lahore High Court, dated 28-9-1981, dismissing the petitioner's Civil Revision under section 115, C.P.C.
2. The facts giving rise to this petition are, briefly, that Sajjad Ahmad petitioner was married to Mst.
Asma Khatun (respondent) in February, 1971. He subsequently divorced his wife on 28-10-1973. She filed a suit against him on 5-2-1979, for recovery of Rs.20,000 as value of her dowery which was retained by the petitioner. The petitioner contested the suit and filed a written statement. He, however, failed to appear in the Court on 15-1-1980 when the case was fixes' for hearing. An ex parte decree was, therefore, passed against him on the same date. No appeal was filed against this judgment and decree within the period of limitation. The respondent in which the petitioner--- s property was ordered to be attached initiated execution proceedings. But Mr. Sarfraz Ahmad (brother of the petitioner) filed an Objection Petition on 18-12-1980, stating therein that the house in question, in fact, belonged to him, and could not be attached in execution of the said decree. This petition was, however, dismissed by the learned Civil Judge on 12-2-1981. On 5th of March, 1981, the petitioner filed an appeal against the ex parte decree passed against him which was hopelessly barred by the. It was, therefore, dismissed as such by the learned Additional District Judge on 17-6- 1981. He then filed a Revision in the High Court which to was dismissed by the impugned order.
3. The main contention urged by the learned counsel was that the learned Courts below had failed to consider the fact that the petitioner was not aware of the ex parte order passed against him. He submitted that the learned High Court had laboured under a misconception that the Objection Petition regarding the attachment of the house had been filed by him (the petitioner) but Mir Sarfraz had in fact, filed it, his brother.
4. On going through the judgments in question we are inclined to agree with the learned Courts below that the petitioner was not unaware of the ex parte decree passed against him especially in view of the fact that his real brother had filed an Objection Petition against the execution of that very decree. In any case, it is a question of fact, which cannot be permitted to be agitated at this stage.
The petition is, therefore, dismissed.