MOBISERVE PAKISTAN (PVT.) LIMITED vs V-TECH Ss — 2025 SCMR 1936 SUPREME-COURT

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MOBISERVE PAKISTAN (PVT.) LIMITED VS V-TECH Ss. 9, 12(2), 47 & 151---ancillary provisions for application under section 12(2) C.P.C.---applicability and significance---addressing issues related to execution of decree obtained through fraud, misrepresentation, lack of jurisdiction or defected service---Multiple remedies for aggrieved person stated---Prevention of decrees obtained unfairly from attaining finality---Filing of objections under section 47 C.P.C. or separate application under section 12(2) C.P.C.---Scope---ancillary provisions for Section 12(2) C.P.C. can be summarized such that Section 47 C.P.C. deals with questions arising between parties to a suit (or their representatives) regarding the execution, discharge, or satisfaction of a decree---Meaning thereby, if a decree is challenged under Section 12(2) C.P.C. on the basis of fraud or lack of jurisdiction, issues related to its execution (e.g., whether the decree is enforceable) may be addressed under Section 47 of C.P.C. during execution proceedings---For instance, if a decree obtained by fraud is sought to be executed, the aggrieved party may raise objections under Section 47 of C.P.C., alongside or instead of a separate application under Section 12(2) C.P.C., depending on the stage of proceedings---Section 151 of C.P.C. empowers courts to pass orders necessary to meet the ends of justice or prevent abuse of the process of the court---It is notable fact that if an application under section 12(2) C.P.C. does not fully address procedural gaps (e.g. interim relief to stay execution of a fraudulent decree), the court may invoke its inherent powers under Section 151 C.P.C.---For example, if a decree is challenged for fraud under Section 12(2) C.P.C., the Court may use Section 151 C.P.C. to stay execution proceedings pending the adjudication of the application---Further, provisions under Order XXI (e.g. Rules 26, 29, 90, 99-101) govern the execution of decrees---If a decree is challenged under Section 12(2) C.P.C. for fraud or lack of jurisdiction, ancillary issues like staying execution (Order XXI Rule 26, C.P.C.) or setting aside a sale in execution due to fraud (Order XXI Rule 90, C.P.C.) may arise; if a property is sold in execution of a decree obtained by misrepresentation, the affected party may seek to set aside the sale under Order XXI Rule 90, C.P.C., in conjunction with an application under Section 12(2) C.P.C.; Section 9 C.P.C. establishes that civil courts have jurisdiction to try all suits of a civil nature unless barred---When an application under Section 12(2) C.P.C. is filed alleging want of jurisdiction, Section 9 C.P.C. provides the foundational principle for determining whether the court had the authority to pass the decree---For instance, if a decree is challenged under Section 12(2) C.P.C. for being passed by a court lacking territorial jurisdiction, Section 9 C.P.C. guides the inquiry into the court's competence---However, ancillary provisions for Order IX Rule 13, C.P.C. can be summarized as: Order V (Rules 1-30) C.P.C. governs the issuance and service of summons---Since an application under Order IX Rule 13, C.P.C. often hinges on non-service or defective service of summons, Order V C.P.C. provisions are critical to determining whether the service was proper---For example, if a defendant claims non-service under Order IX Rule 13, C.P.C. because the summons were not served as per Order V Rule 15, C.P.C. (service on an adult member of the family), the court will examine compliance with Order V of C.P.C.; Order IX Rule 6, C.P.C. outlines the procedure when the defendant does not appear, leading to an ex-parte decree---This provision sets the stage for an application under Order IX Rule 13, C.P.C., as it defines the circumstances under which an ex-parte decree is passed; if a court proceeds ex-parte under Order IX Rule 6, C.P.C. due to the defendant's absence, the defendant may apply under Order IX Rule 13, C.P.C. to set aside the decree, citing non-service or sufficient cause; if the suit is at the hearing stage and has not yet resulted in a decree, Order IX Rule 7, C.P.C. allows the defendant to apply to set aside the ex-parte proceedings and join the hearing---This is a precursor to Order IX Rule 13, C.P.C., applicable when the case is still ongoing---For instance, if defendant learns of the ex-parte proceedings before the decree is passed, he may apply under Order IX Rule 7 instead of waiting to file under Order IX Rule 13, C.P.C.; Order IX Rule 14, C.P.C. mandates that no ex-parte decree shall be set aside under Order IX Rule 13, C.P.C. without giving notice to the opposite party (plaintiff)---This ensures procedural fairness in applications under Order IX Rule 13, C.P.C.---When a defendant files an application under Order IX Rule 13, C.P.C., the court must issue notice to the plaintiff under Order IX Rule 14, C.P.C. before deciding the application---In addition to the above, if an ex-parte decree is set aside under Order IX Rule 13, C.P.C., Section 144 C.P.C. allows the court to order restitution to restore the parties to their original position (e.g. refund of money paid under the decree or restoration of property)---Moreover, if defendant's property was sold in execution of an ex-parte decree that is later on set aside, Section 144 C.P.C. may be invoked to restore the property to the defendant---Similar to its role in Section 12(2) C.P.C., Section 151 C.P.C. can be used to address procedural gaps in Order IX Rule 13, C.P.C. applications, such as granting interim relief to stay execution of an ex-parte decree pending the application's adjudication---Furthermore, provisions like Order XXI Rule 26 (stay of execution) and Rule 29, C.P.C. (stay of suit when execution is pending), are ancillary to Order IX Rule 13, C.P.C., as they allow the court to manage execution proceedings while the application to set aside the ex-parte decree is pending---If a defendant files an application under Order IX Rule 13, C.P.C. and the decree is being executed, they may seek a stay under Order XXI Rule 26, C.P.C.---The ancillary provisions ensure procedural fairness, provide mechanisms for execution or stay, and allow appeals or restitution, complementing the primary remedies under Section 12(2) and Order IX Rule 13, C.P.C.---Provisions like Section 151 and Order XXI, C.P.C. grant courts flexibility to address case-specific issues, ensuring justice is not defeated by procedural technicalities---Both Section 12(2) and Order IX Rule 13, C.P.C. applications require compliance with procedural rules [e.g., notice under Order IX Rule 14, C.P.C. or evidence of fraud under Section 12(2) C.P.C.], and ancillary provisions like Order V or Section 47, C.P.C. guide these requirements.

MOBISERVE PAKISTAN (PVT.) LIMITED vs V-TECH Ss — 2025 SCMR 1936 SUPREME-COURT

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