2011 CLC 553 (PLP)

C.M. No. 1-C of 2008, C.M. No. 2-C of 2008, C.M.No. 3-C of 2008 and C.M. No. 4-C of 2008 CH. MUHAMMAD TARIQ, J.

This revision petition was decided vide judgment dated 15-4-2005 by this court in which Ghulam Qadir respondent/plaintiff was proceeded against ex parse. On 15-5-2008, Sh. Naveed Shaharyar, learned counsel for the respondent/ plaintiff has filed four civil miscellaneous applications i.e. C.M.No.1-C-08 for setting aside ex parte decree, C.M.No.2-C-08 for bringing on record the legal heirs of deceased Ghulam Qadir respondent, C.M.No.3-C-08 for an application under section 5 of the Limitation Act for condonation of delay and C. M. No.4-C-08 for .interim injunction for the suspension of operation of the impugned judgment.

2. Learned counsel for the applicant/respondent contends that the impugned ex parte judgment be set aside on the following grounds:-- (1) That the impugned judgment was passed on 15-4-2005 while Ghulam Qadir respondent had died on 22-3-2004, therefore, a decree could not be passed against a dead person. (2) That as soon as a person dies, his power of attorney automatically ceased to exist unless a new power of attorney is issued/executed by the legal heirs of the deceased. (3) That admittedly the Legal heirs of deceased Ghulam Qadir were abroad who were never served with notice by this court. (4) That an ex parte judgment and decree against a dead person is a void order, therefore, period of limitation does not run against a void order. (5) That Mst. Bushra and Mst. Hameedan Bibi area illiterate ladies, they were not in a position to approach the court to obtain the result of the case. (6) That Article 144 has been deleted and no more exists. (7) That it was a case against a sole respondent therefore, the ex parte judgment be set a side, the delay be condoned and the application be allowed to implicate the legal heirs of deceased Ghulam Qadir and may be decided afresh on merits after hearing all the parties.

3. On the other hand, the learned counsel for the defendants/petitioners has submitted their written reply and controverted the contentions of the learned counsel for the applicant with the prayer that all, the applications be dismissed; that the ex parte decree is not liable to be set aside because the learned counsel for the applicant/ respondent has failed to show any reasonable cause for the condonation of delay. The learned counsel for the respondent has put more stress on the point of limitation that application to set aside ex parte decree is badly barred by time.

4. Arguments heard. Record perused.

5. The ex parte decree was passed on 15-4-2005 and record reveals that the respondent Ghulam Qadir was died on 22-3-2004. This fact is unrebutted. It is further confirmed that the legal heirs of deceased respondent Ghulam Qadir were abroad and record also shows that after the death of Ghulam Qadir, no notice were served upon the legal heirs of deceased respondent to inform about the pendency of civil revision in this court. Again there is no dispute about this fact that as soon as a person dies, his power of attorney ceases with the death of a party. The record further reveals that the civil revision was filed against a sole respondent Ghulam Qadir and there was no other respondent in the civil revision who could inform the legal heirs of deceased Ghulam Qadir about the pendency of Civil Revision.

6. In view of the above discussion, this court is of the view that the judgment dated 15-4-2005 is not sustainable in the eye of law against a dead person, particularly when power of attorney executed by the deceased respondent had already expired. In such a situation, it is a sufficient cause to condone the delay, therefore, accept these petitions and delay is condoned. The ex parte decree is set aside and the petitioners in the main revision petition are directed to submit amended memo of parties within two weeks. Thereafter, civil revision be decided on merit. H.B.T./G-21/L Order accordingly.