1993 PLP 1257 (CLC)

(1) That the combined relief prayed for in the Plaint for personal decree and attachment and sale of the mortgaged property is barred by law and is without jurisdiction. (2) The decree was obtained fraudulently as summons were served on an unidentifiable person and the seal of the Plaintiff Company entrusted to the defendants for affixation thereof only on the defendants' import/export documents, was fraudulently affixed by the Plaintiff on the summons. (3) The precept issued by the Court for sale of the mortgaged properties is barred by law and this Court has no jurisdiction to order the sale of the mortgaged properties as Order XXXIV, Rule 14, of the Code of Civil Procedure specifically provides that where the mortgagee has obtained the decree for payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit notwithstanding any thing contained in Order II, Rule ;C.P.C. The learned Advocate for the Plaintiff submitted that the judgment and decree are in accordance with law and even otherwise it is only a clerical error that word `preliminary decree' is not used in the judgment and decree. He alternatively, submitted that for rectification of such mistake the Plaintiff had submitted an application under section 152, C.P.C. The precept had been issued for execution of the decree for realizing the decretal amount as arrears of land revenue as provided under section 8(3) of the Banking Companies (Recovery of Loans) Ordinance, 1979. The service of summons was duly effected on the defendants. They appeared in Court, filed applications for leave to appear and defend and for condonation of delay which were duly considered by the Court and dismissed. Therefore, they cannot assail the judgment and decree on the said ground. The question arises whether this Court would be competent to consider the application filed by the defendants under section 12(2) of the Code of Civil Procedure. The said subsection reads as under:‑ "12(1) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑:‑‑‑‑‑‑‑‑‑‑‑ (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." It may be pointed out that the judgment and decree which are sought to be nullified for want of jurisdiction, were challenged by the defendants in High Court Appeal No.3 of 1987 which was dismissed by order dated 13‑3‑1989, on the failure of the defendants to furnish security as ordered by the Appellate Court, in spite of extension of time granted to the defendants. Thereafter C.M.A. No.419/89, was filed by the defendants for review of order dated 13‑3‑1989, which was also dismissed on 30‑4‑1989. Section 12(2) specifically provides that the remedy there under is to be sought if the judgment, decree or order are challenged on the plea for want of jurisdiction, by making an application to the Court which passed the final judgment, decree or order. In this matter, the judgment and decree passed by thus Court has merged in the decree passed by the Appellate Court in H.CA. No.3/87, and, therefore, application under the aforesaid section would not lie before this Court but before the Appellate Court. The above rule was laid down in the case of Muhammad Yaqub v. Mst. Nooran etc. 1983 CLC 1948 wherein the learned Judge of the Lahore High Court observed as under:‑ "In the circumstances of the under consideration case the respondents filed application under section 12(2) of the Code of Civil Procedure before the Court of Civil Judge, Chunian, i.e. a Court of first instance although the final judgment in the matter, was passed by the Supreme Court of Pakistan. It is an established proposition of law that the lower Courts' judgment merges into the judgment of the appellate Court and thus the appellate Court's judgment is to be treated as final judgment. It is, therefore, amply clear that in the circumstances of this case application under section 12(2) of the Code of Civil Procedure was not competent before the Court of Civil Judge, Chunian, but the same could be filed only before the Supreme Court of Pakistan:' The above view was thereafter followed in several cases by other illustrious Judges of Lahore High Court and this Court. The following are a few of such cases:‑ (1) Abdul Jabbar v. Salahuddin and 4 others 1985 CLC 2594. (2) Muhammad Habib v. Muhammad Afzal Farooqui 1986 CLC 905. (3) Mst. Zebunnisa v. Sultan Ahmad and another 1986 CLC 1520. (4) Mst. Rukha Rafiq and another v. Malik Muhammad Ishaq and others 1986 CLC 1211. (5) Shat Muhammad and 13 others v. Muhammad Farooq and 3 others 1989 CLC 937. (6) Khairunnisa and another v. Mehrunnisa 1990 CLC

661. In the case of Mst. Rukha Rafiq and another (supra) it was observed that dismissal of an appeal on limitation shall not prevent application of the principle of merger of the trial Court's judgment in its fullness, in the appellate judgment. In above view of the law, the first two grounds cannot be entertained by this Court, the application under section 12(2), C.P.C. being not maintainable in the suit. The third submission urged by the learned counsel under the circumstances, is misconceived. The judgment and decree having attained the finality, this Court has the jurisdiction to enforce the same. In fact this submission is co‑related with the first two submissions. Additionally, it may be stressed that the attachment and sale of the mortgaged property was specifically prayed for in the plaint and this Court passed decree for realization of the decretal amount by attachment and sale of the mortgaged property. Since the above judgment and decree hold the field, the Court has rightly issued the precept and it cannot be termed being without jurisdiction. Therefore the application under Section 12 (2), C.P.C. is hereby dismissed. C.M.A. No. 97890: This application under section 152, C.P.C. has been filed by the Plaintiffs praying for correction of the judgment dated 5‑10‑1986, and thereby converting the decree passed into a preliminary decree under Order XXXIV, C.P.C. The learned Counsel has relied on the case of Bank of Credit and Commerce International (Overseas) Limited v. Ali Asbestos Industries Limited and 5 others (1990 MLD X130) and an unreported Order of this Court in Suit No.37 of 1983, The Muslim Commercial Bank Limited v. Al‑Farooq Steel Industries and others, on the proposition that this Court can correct the decree under section, 152 C.P.C. In the above‑cited case, the Court had ordered the correction of the decree as it was found that the relief of preliminary decree was not granted due to omission and was not intentional. But so far as the present suit is concerned the decree was granted by the Court as prayed in the plaint. The plaint does not contain any prayer for preliminary decree. Under these circumstances, section 152, C.P.C. is not applicable. In the case of Bank of Credit and Commerce International (Overseas) Limited (supra), an eminent Judge of this Court, Mr. Salcem Akhtar, J. (as he then was) after referring to the case of Raj Raj Bahadur Singh v. Shatranjai AIR 1942 Oudh 226) observed that where the Court has not passed any order intentionally but due to oversight or omission, although in the facts and circumstances of the case, the party was entitled to such relief, the Court is empowered to correct that mistake so that no party should suffer due to unintentional omission of the Court. It was further found *hat the Plaintiff in the said suit was entitled to a decree under Order XXXIV, C.P.C. in the normal course and the omission to grant such relief was not intentional. But in the case in hand, the decree as it stands has been granted intentionally as prayed in the plaint. It is not the case of unintentional omission. Section 152, C.P.C. is in no manner attracted to the circumstances of this case. This application is, therefore, dismissed. AA/0‑218/K Applications dismissed.