Mst. JAMILA vs MUHAMMAD TAHIR and another
This matter concerns a petition for leave to appeal against a Peshawar High Court judgment that restored a trial court's order staying execution proceedings. The petitioner, Mst. Jamila, had obtained an ex parte decree regarding a property, which was subsequently challenged by a subsequent transferee, Muhammad Tahir, via an application under Section 12(2) of the Code of Civil Procedure 1908, alleging fraud and suppression of facts. The trial court had initially stayed the execution of the decree pending the resolution of this challenge. The appellate court reversed this stay, but the High Court restored it. The core legal question was whether the trial court correctly exercised its discretion in staying execution proceedings while the underlying decree was being challenged for fraud. The Supreme Court held that since the decree was under active challenge on grounds of fraud and collusion, the trial court properly exercised its discretion to maintain the status quo. The Court affirmed the High Court's decision, finding no legal error in the revisional order, and dismissed the petition, establishing that execution proceedings should generally be stayed when the validity of the decree itself is sub judice on allegations of fraud.
- Can execution proceedings be stayed when the underlying decree is challenged under Section 12(2) of the Code of Civil Procedure 1908 on grounds of fraud?
- Does a trial court have the discretion to maintain the status quo during the pendency of a challenge to a decree?
- Section 12(2), Code of Civil Procedure 1908
1. ' WALI MUHAMMAD KHAN, J. ---Mst. Jamila, petitioner herein, seeks leave to appeal against the judgment dated 16-1-1993 of the Peshawar High Court, whereby Revision Petition No,427/92 filed by Muhammad Tahir respondent against the judgment of the Additional District Judge, Swabi dated 5-9-1992, was accepted.
2. ' The facts of the case, briefly stated, are that the petitioner was owner of the suit house who allegedly sold the same vide Mutation No,5448 attested on 28-12-1989 in favour of Fazl-e-Rabbi, respondent No,2 herein, who further alienated the same vide Mutation No,5485 attested on 18-4- 1990 in favour of Muhammad Tahir, respondent No,1 herein. The first mutation was challenged by the petitioner and ex parte decree dated 28-1-1991 was passed in her favour. The subsequent transferee; namely, Muhammad Tahir was not a party in the said case as the transfer in his favour admittedly took place lis pendens. He filed an application under section 12(2), C.P.C. Challenging the decree on the ground of fraud and suppression of facts and simultaneously with the same filed an application for the stay of execution proceedings which was hotly contested and after hearing arguments of the learned counsel for the parties the trial Court, by accepting the application, ordered stay of execution proceedings vide its order dated 17-5-1992. The appellate Court, however, did not concur with it and vide ordei dated 5-9-1992 annulled the same. The respondent Muhammad Tahir preferred a revision petition against it before the High Court which was accepted through the impugned order and by setting aside the judgment of the appellate Court, the order of the trial Court was restored with direction to it to decide the application filed by Muhammad Tahir respondent on priority basis. Hence the instant petition for leave to appeal.
3. ' We have heard Mr. Waris Khan, Advocate, for the petitioner, and have perused the record of the case.
4. As stated above, the ex parte decree of which the execution is sought is under challenge before, the trial Court on the ground of fraud and collusion and the matter being sub judice, the trial Court had properly exercised its discretion in maintaining status quo, and the appellate Court without substantial reasons set it at naught. We do not find any legal error in the impugned judgment of the revisional Court.
5. ' Resultantly, finding no merit in the instant petition, the same is dismissed and leave to appeal is refused.