2002 PLP 1554 (SCMR)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑S. 12(2)‑‑‑Limitation Act (IX of 1908), Art. 181‑-‑Constitution of Pakistan (1973), Art, 185(3)‑‑‑Consent decree, setting aside of‑‑‑Plea of fraud and misrepresentation‑‑‑Limitation‑‑‑Computing period of limitation‑‑ Consent decree was passed on 4‑11‑1980 and it was provided in the decree by the Trial Court that the decree would nor be a title deed‑‑‑Petitioner allegedly came to know about the decree on 21‑9‑1982'and application under S.12(2), C.P.C. was made on 3‑10‑1986‑‑‑Trial Court dismissed the application being time‑barred but the Appellate Court reversed the finding of Trial Court and allowed the application‑‑‑High Court in exercise of its jurisdiction under Art.199 of the Constitution restored the finding of the Trial Court‑‑‑Contention of the petitioner was that as the decree was not a title. deed, therefore, right‑ to sue accrued to file application for setting aside the decree‑ at the time when the decree was to be enforced‑‑‑Validity‑‑‑Trial Court did not declare in the consent decree that the declaration made therein was not enforceable or operative on the date when it was made and it was merely provided that the decree itself would not be treated as sale‑deed but it did not embody any condition that declaration as to ownership with possession of the suit property made in favour of the decree‑holder on the basis of oral contract of sale was also ineffective and would remain effective for sale‑‑‑Period of three years under Art.181' of Limitation Act, 1908, would start from the date when right to sue accrued which in the present case accrued on 21‑9‑1982 when the petitioner had come to know of the decree‑‑‑Trial Court had rightly found that the application made on 3‑10‑1986 was barred by time‑‑‑Supreme Court declined to interfere with the judgment passed by 'the High Court‑‑‑Leave to appeal was refused. Qazi Khurshid Alam Siddiqi, Advocate Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 10th April, 2002. MUNIR A. SHEIKH, J.‑‑‑Decree was passed on the basis of consent given by the petitioner in favour of the respondent of declaration that he was owner in possession of the land on the basis of oral sale‑deed by the petitioner on 4‑11‑1980: To pre‑empt the said sale made through this decree, the son of the petitioner filed a suit in November, 1981. In this suit, the petitioner tiled an application on 21‑9‑1982 for impleadment as party as he wanted to challenge the sale made through the said consent decree on the ground that he did not give that consent and the decree had been obtained through fraud and misrepresentation. He was impleaded as one of the ' defendants in the suit. The said suit was decreed by the trial Court on 25‑1‑1988 in favor of the petitioner's son. The present petitioner and the vendee under the said consent decree of sale both filed two separate appeals which were subsequently withdrawn, therefore, the said pre‑emption decree became final. On 3‑10‑1986 when the said pre‑emption suit was pending, the petitioner, however, made an application under section 12(2), C.P.C. for setting aside the said decree on the ground of fraud. It was dismissed through judgment dated 18‑9‑1995 by the trial Court as barred by time and also on merits against which revision petition filed by him was, however, accepted by the First Appellate Court through judgment dated 26‑5‑1996 which held that the application was not barred by time and the findings of the trial Court to this effect were not sustainable and on merits also, the findings were set aside and the decree was held to have been obtained through misrepresentation and fraud, as such, set aside. The Constitutional petition tiled by the respondent has been accepted through the impugned judgment dated 10‑1‑2000 by the High Court by holding that the application made by the petitioner was barred by time, for he came to know of the said decree on 21‑9‑1982 when he made application before the Court in pre‑emption suit to be impleaded as party, therefore, computing from the said date, the period of limitation, the application should have been made within period of three years i.e., up to 21‑1‑1985 but the same was made on 3‑10‑1986, therefore, the application was barred by time. The judgment of the learned District Judge was set aside and that of the trial Court restored.

2. Learned counsel for the petitioner submitted that period of limitation in this case was to he determined not with reference to Article 95 of the Schedule of the Limitation Act whereas It was governed by Article IS I of the said Act as it was not a suit but an application to which the said Article was applicable.

3. Be that as it may, even if Article 181 of the Limitation Act is made applicable, the period of limitation is three years from the date when right to sue accrues. In a case of decree allegedly obtained through fraud, the right would accrue to challenge the said decree when the fraud comes to the knowledge of the applicant in case he was not party in the suit.

4. Learned counsel for the petitioner submitted that in the consent decree itself, it was provided that the same would not be a title deed, therefore, whenever the said decree itself was to be enforced as title deed, the right to sue would accrue to file application for setting it aside which in this case is 25‑1‑1988 when the said decree of pre‑emption treating the same as complete sale was passed.

5. The argument has no force. It was not declared in the said consent decree that the declaration made therein was not enforceable or operative on the date when it was made. It was merely provided that the decree itself would not be treated as sale‑deed but it in no manner embodied any condition that declaration as to ownership with possession of property made in favour of decree‑holder on the basis of oral contract of sale was also ineffective, and shall remain effective, for sale of agricultural land could legally be made orally, therefore, period of three years under Article 181 of the Limitation Act would start from the date when right to sue accrued which in this case shall be deemed to have accrued on 21‑1‑1982 when the petitioner came to know of the said decree, therefore, it was rightly held that the application made on 3‑10‑1986 was barred by time.

6. The impugned judgment of the High Court does not suffer from any illegality, therefore, this petition being meritless is hereby dismissed and leave refused. Q.M.H./M.A.K./F-60/S Petition dismissed.