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2006 Supreme(J&K) 204
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
J.P. Singh, J.
Jagan Nath - Appellant
Versus
Tilak Raj Pandoh - Respondent
Civil Revision No. 1/2006
Decided On : 18 September, 2006
Advocate For Appellant: Rajesh Kohli
Advocate For Respondent: Rohit Kohli
The main legal point established in the judgment is that the consent and agreement of the parties recorded in the execution proceedings put an end to the adjudicatory litigation between the parties, and filing an application to set aside the decree after a long period of its passing was an abuse of the court process.
Headnote:
Order XXXVII - Setting aside of Decree - Code of Civil Procedure - [Order XXXVII Rule 4] - The court discussed the application of Order XXXVII Rule 4 of the Code of Civil Procedure and the principle of constructive res-judicata. It highlighted the consent and agreement of the parties recorded in the execution proceedings, putting an end to the adjudicatory litigation between the parties. The court emphasized that the application filed by the judgment-debtor after a long period of the passing of the decree was an attempt to abuse the process of the Court. The application was rejected due to the lack of requisite details indicating the circumstances of forgery and material in support thereof.
Fact of the Case:
The petitioner sought setting aside of a decree passed under Order XXXVII of the Code of Civil Procedure, alleging that it was obtained on the basis of forged documents.
Finding of the Court:
The court found that the application to set aside the decree was misconceived and intended to delay the execution of the decree. It held that the petitioner had abused the process of the Court with a design to delay and avoid the execution of the decree.
Issues: The issues involved the setting aside of a decree under Order XXXVII of the Code of Civil Procedure, alleged forgery of documents, and the abuse of the court process.
Ratio Decidendi: The court applied the principle of constructive res-judicata and emphasized the consent and agreement of the parties recorded in the execution proceedings, which put an end to the adjudicatory litigation between the parties. It also highlighted the lack of requisite details indicating the circumstances of forgery and material in support thereof in the petitioner's application.
Final Decision: The petition was dismissed as misconceived, and the petitioner was ordered to pay compensatory costs to the respondent-decree holder.
2. Facts, giving rise to this Civil Revision, may be stated thus:
A suit, filed under Order XXXVII of the Code of Civil Procedure, for recovery of Rs.57,000/-, was decreed on 21st of May, 1994, by learned 1st Additional District Judge, Jammu. Petitioner was served with summons on 04-06-1993. He did not enter appearance within the prescribed period. An application for condonation of delay filed on 12th of July, 1993, was rejected, resulting in consequent decree against the petitioner. An appeal against the decree was filed by the petitioner in this Court. This appeal, registered as CIA No.47/1994, was dismissed on merits on 09-08-1999. A Letters Patent Appeal was preferred against the judgment of learned Single Judge of this Court. The petitioner was directed by the Appellate Court to deposit the decretal amount along with interest accrued thereon. The petitioner, however, failed to do so. The Letters Patent Bench, accordingly, passed order on 28-04-2000, providing last chance of two weeks to herein petitioner to deposit the decretal amount along with interest, failing which the appeal was to be dismissed. The appellant failed to comply with this order of the Court too and, ultimately, LPA(C) No.45/1999 of the petitioner was dismissed on 20th of July, 2000, of course, in default of appearance of the petitioner. This LPA appears to have been revived, whereafter the counsel for the parties were heard and the Division Bench directed dismissal of the LPA in terms of its order dated 22nd of November, 2001.
3. During the currency of execution proceedings taken out by the decree holder, the petitioner-judgment-debtor offered to pay the decretal amount in instalments. A consensus was arrived at between the litigating parties and their counsel that the petitioner-judgment-debtor, would deposit a sum of Rs,25,000/- in lump-sum and, thereafter, pay a sum of Rs.5,000/- per month regularly, without making more than two defaults and in case there was default by the judgment-debtor, he would become liable to pay whole of the decretal amount. The Executing Court, accordingly, passed an order on 01-08-2002 and disposed of the execution application in terms of the compromise arrived at by the parties.
4. The decree appears to have remained unsatisfied, whereafter the judgment-debtor, filed yet another application under Order XXXVII Rule 4 of the Code of Civil Procedure, on 30th of November, 2005, seeking setting aside of decree dated 21st of May, 1994. This application was rejected by learned 1st Additional District Judge, Jammu, vide his order dated 26-12-2005.
5. Aggrieved by the order of learned 1st Additional District Judge, Jammu, the petitioner has preferred this Revision Petition.
6. I have heard the learned counsel for the parties and gone through the records.
7. Mr. Rajesh Kohli, learned counsel for the petitioner, judgment-debtor, submits that learned 1st Additional District Judge, Jammu, has erred in dismissing the application of the petitioner, which was required to be allowed, because the petitioner had alleged that the decree had been obtained on the basis of forged documents.
8. Mr. Rohit Kohli, learned counsel appearing on behalf of the decree holder, submitted that the application of the petitioner was misconceived and was intended to delay the execution of the decree. Learned counsel submitted that the petitioner had been avoiding the execution of decree on one or the other pretext, and had filed this Revision Petition with the sole purpose to delay execution of the decree. He refers to Subash Raina v. Suraj Parkash, reported as AIR 1977 J&K 30, to support his submissions.
9. History of this case, noticed in earlier part of this order, indicates that the petitioner
