The petitioner-plaintiff has filed a suit for declaration to the effect that the decree passed by Sub-Registrar Munsiff, Jammu dated 2-12-1983 in civil suit No. 515 is null and void being without jurisdiction and inoperative which was inexecutable and not binding upon the plaintiff. The prohibitory injunction restraining the defendant No. 1 from executing the said decree has been prayed as a consequential relief. This petition has been filed for the grant of interim stay. While admitting the suit and subject to the filing of objections by the other side, the execution of the decree impugned in civil suit dated 2-12-1983 was stayed by this Court and the term of the order was extended up to 2nd of Nov., 1989.

2. I have heard the learned counsel for the parties and peruse the record.

3. The petitioner has alleged in his suit that he had obtained a shop on rent from defendant No. 1 and was carrying on business therein in partnership with S/Shri Rajinder Kumar, Partool Chand, Sita Devi and Shanti Devi. It is submitted that the defendants instead of getting the rent deed executed showed his wife as a partner with the plaintiff and other partners in the year, 1971. It is submitted that the document of partnership was a Benami transaction and the shop remained in possession of the plaintiff as a tenant. In the year, 1973, the defendant No. 1 is alleged to have got the dissolution deed executed between his wife, the plaintiff and other partners on 12-4-1973 and in order to circumvent the provisions of law got one mortgage deed executed on 31-3-73 allegedly by fraud and by misrepresentation. The said mortgage deed is alleged to a Sham transaction for the reasons stated in para 8 of the plaint. It is submitted that despite execution of the mortgage deed, the defendants continued to receive the rent from the plaintiff, but without giving any receipt for it. The defendant is alleged to have filed a suit No. 515/ Civil on 13-11-1983 in the Court of Sub-Registrar Jammu for redemption of the mortgage in respect of the said shop and kept it as a guarded secret from the plaintiff. The defendant No. 1 is alleged to have used one of the vakalatnama on which he had fraudulently obtained the plaintiffs signatures. Defendant No. 2 is stated to have appeared for the plaintiff as his counsel without proper authority. The defendants are alleged to have forged the document of compromise deed, having allegedly executed by the plaintiff and the defendant No. 1 in consequences of which the decree impugned in this suit was filed by the Court below.

4. In his written statement, the defendant No. 1 has submitted that the present suit is not maintainable in view of the provisions of Section 47 and Order XXI of CPC. The suit of the plaintiff is also held to be barred by time. It is submitted that after having approached the executing Court for holding the decree to be inexecutable, the plaintiff is not entitled to maintain the present suit. It is submitted that the plaintiff was never inducted as a partner in the shop which was under the occupation of M/s. White Hotel in the year 1971. No fraud is stated to have been committed by the defendants in getting the mortgage deed executed which is claimed to be genuine and properly executed. The allegations of fraud and misrepresentation being vague and ambiguous cannot be adjudicated. The transaction of the mortgage has been justified by defendant No. 1 on various grounds as detailed in the written statement. It is submitted that defendant No. 2 was engaged by the plaintiff himself. The provisions of Order XXXIV were not applicable in the suit. The suit which is stated to be misconceived and liable to be dismissed.

5. In his written statement, defendant No. 2 has submitted that the plaintiff had the knowledge of the suit when he contacted replying defendant for engaging him as his counsel to appear in the suit on his behalf. The plaintiff is alleged to have come to defendant No. 2 on 2-12-1983 and showed him the compromi

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