1993 PLP 1344 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S.151‑‑‑In presence of a specific provision, applicant cannot seek relief under general provision of S.151, C.P.C. Badrudduja Khan for Plaintiff. A.I. Chundrigar for Defendants The applicant has made this application under section 12(2) read with section 151, C.P.C., praying that the judgment and decree dated the 21st January, 1978, passed in Suit No.395 of 1975 be set aside on the ground that it was obtained by fraud and misrepresentation. The facts relevant for the purposes of this application are that the plaintiff (IDBP) filed Suit No.395 of 1975 for recovery of Rs.312349.07 against the National Engineering Works and four other defendants including Mst. Alia Nazli (Atia Nazli), the defendant No.3. According to the averments in paragraphs 8 and 9 of the plaint in that suit one Ghulam Ali Khan had mortgaged his property as security for payment of the advances granted to the defendant No.l, and, according to paragraph 11 of the plaint, the defendant No.3 was legal representative of the said Ghulam Ali Khan who had died prior to the institution of the suit. On the 19th May, 1976 a preliminary decree was passed in that suit and a final decree for sale of the property was passed in 1978. Subsequently the plaintiff fled an application for execution of the decree and, during the pendency of the application, made an application to implead Sadiq Ali Khan, the applicant herein, and other heirs of the late Ghulam Ali Khan in execution proceedings. That application was granted and the heirs of Ghulam Ali Khan, including Sadiq Ali Khan, were made parties to the execution application. Mr. Badrudduja Khan states that notice of the execution application was never served on Sadiq Ali Khan. It is common ground that the mortgaged property has been sold in execution of the final decree passed in the suit and has been purchased by a daughter of the deceased Ghulam Ali Khan. Mr. Badrudduja Khan contends that, in these circumstances, the judgment and decree obtained in Suit No.395 of 1975 has to be set aside because the plaintiffs failed to implead the heirs, other than the defendant No.3, of the deceased Ghulam Ali Khan. In response to my query as to what was the evidence to show that the plaintiff, at the time of filing the suit, was aware of the existence of the applicant and deliberately failed to implead him as a party to the suit Mr. Badrudduja Khan invited my attention to the allegation in paragraph 16 of the affidavit in support of the application. That para. reads as follows:‑‑‑ "I state that the judgment and decree in respect of our estate without impleading us is illegal, void and liable to be set aside as the judgment and decree were obtained by the plaintiff by fraud and misrepresentation committed with this Hon'ble Court. The deceased Ghulam Ali Khan had died in 1973 before filing the suit as such the plaintiff was bound to implead all the legal heirs of the deceased Ghulam Ali Khan." As I read the allegation in paragraph 16 of the affidavit, it appears to me that real grievance of the applicant is that the plaintiff should have impleaded all the legal representatives of the deceased Ghulam Ali Khan in the suit and that, since that was not done, those L.Rs. who were not impleaded in the suit cannot be bound by the decree. In fact the sole thrust of the arguments of the learned counsel for the applicant is just that, namely, that the decree is not binding on the L.Rs. of Ghulam Ali Khan who were not parties to the suit. Be that as it may, the sole question in these proceedings is whether the decree was obtained by fraud or misrepresentation. There is nothing on record and no allegation in the affidavit in support of the application to show that the plaintiff was aware of the existence of the applicant in 1975. That being so, it A cannot be said that the plaintiff deliberately failed or avoided to implead the applicant as a defendant in the suit and it follows that the plaintiff cannot be said to be guilty of any fraud or misrepresentation. There is, thus, not even prima facie proof of the alleged fraud or misrepresentation in obtaining the decree in Suit No.395 of 1975. In the circumstances, the provisions of 8 section 12(2), C.P.C. are not attracted. Mr. Badrudduja Khan submits that even if the provisions of section 12(2), C.P.C., are not attracted, relief may be given under section 151, C.P.C. The submission is not correct because in the presence of the specific provisions of section 12(2), C.P.C. the plaintiff cannot seek relief which may be given under section 151, C.P.C. The submission is not correct because in the presence of the specific provisions of section 12(2), C.P.C., the plaintiff cannot seek relief under the general provisions of C section 151 of the Civil Procedure Code. In the circumstances, the application has no merit and is hereby dismissed. . H.B.T./1‑216/K Application dismissed.