Jammu & Kashmir High Court
Jagan Nath vs Tilak Raj Pandoh on 18 September, 2006
Equivalent citations: 2007(1)JKJ27
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. This Civil Revision is directed against order dated 26-12-2005 of 1st Additional District Judge, Jammu, whereby he rejected the application of the petitioner seeking setting aside of decree dated 21st of May, 1994, passed under Order XXXVII of the Code of Civil Procedure.
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 had remained unsuccessful in the earlier round of litigation. The decree passed by learned 1st Additional District Judge, Jammu, had, thus, attained finality. Second round of litigation by the petitioner, seeking to urge a plea, which though available to him, had been omitted to be so raised in the earlier round of litigation, is impermissible, because of the application of the principle of constructive res-judicata.
10. That apart, application of the petitioner under Order XXXVII Rule 4 of the Code of Civil Procedure, was clearly misconceived, in view of his having consented and agreed to pay the decretal amount in instalments, as is evident from order dated 01-08-2002 of learned 1st Additional District Judge, Jammu, passed during the execution proceedings.
11. Consent and agreement of the parties recorded in order dated 01-08-2002 of learned 1st Additional District Judge, Jammu, puts an end to the adjudicatory litigation between the parties. No further litigation was, thus, permissible by the judgment-debtor.
12. Application filed by the judgment-debtor, before the Executing Court after a period of about ten years of the passing of decree under Order XXXVII of the Code of Civil Procedure, was thus, an attempt of the petitioner to abuse the process of the Court. Petitioner's application under Order XXXVII Rule 4 of the Code of Civil Procedure, contained only a bald assertion that the documents relied upon by the plaintiff in the suit under Order XXXVII of the Code of Civil Procedure, were forged. No special circumstances, as contemplated by Order XXXVII Rule 4 of the Code of Civil Procedure, were even made out by the petitioner in his application. The application of the petitioner, shorn of requisite details indicating the circumstances of forgery and material in support thereof, has been rightly rejected by learned 1st Additional District Judge, Jammu.
13. I do not find any error of law or jurisdiction in the order passed by learned District Judge.
14. The petitioner, the facts of the case indicate, has abused the process of the Court with a design to delay and avoid the execution of the decree. The respondent-judgment holder, therefore, needs to be appropriately compensated by the petitioner for the unnecessary and unjustified delay in obstructing and avoiding the execution of the money decree, despite his having agreed to pay the decretal amount in instalments.
15. For all what has been stated above, this petition is dismissed as misconceived. The petitioner, judgment-debtor, shall pay an amount of Rs. 5,000/- (Rupees five thousand), as compensatory costs, to the respondent-decree holder.