GURBAX SINGH Vs. JAI SINGH

JUDGEMENT

(1.) The petitioner Gurbax Singh, his brother Parduman Singh and Respondent No. 1 Jai Singh were partners. In 1956, Jai Singh brought a suit against the petitioner and his brother for dissolution of partnership and accounts. The suit was defended by the petitioner and his brother. A preliminary decree was passed against the petitioner and his brother on 26-8-1957. On 29-4-1959, the suit was dismissed for default. The application for restoration of the suit was dismissed on 20-7-1960.

(2.) The petitioner alleges that Jai Singhi filed an appeal against the order refusing to restore the suit. But the notice of the appeal was served on the brother of the petitioner and not on the petitioner himself. Jai Singh and the petitioner's brother colluded to defraud the petitioner and the brother of the petitioner did not inform the petitioner about the receipt of the notice of the appeal. The appeal was allowed and the suit was restored. A final decree for Rs. 7625-25 was passed against the petitioner and his brother on 17-3-1962. The decree-holder Jai Singh assigned the decree to Respondent No. 2 Sarup Singh who filed an application to execute the decree. The petitioner was served with a notice under Order XXI rule 16 Civil Procedure Code and the executing Court held that Sarup Singh (Respondent No. 2) was entitled to execute the decree against the petitioner.

(3.) The petitioner then filed about five applications under section 47 Civil Procedure Code objecting to the execution. An early application was disposed of by Shri Krishan Kant, Sub- Judge, First Class, by an order dated 14-1-1966 at Annexure A to the writ petition. The petitioner has not filed a copy of the application as he ought to have done. I am constrained, therefore, to rely upon the recitals in the order at Annexure A as to the contents of the petitioner's application. In paragraph 7 of the order, the learned Judge states that the objector had alleged that the decree had been obtained by fraud. The learned Judge complains that the objector had not given the particulars of fraud as required by Order VI, rule 4 Civil Procedure Code. The plea of fraud was, therefore, held to have been without any substance. Alternatively, even if it is assumed that the plea of fraud had any substance, the learned Judge held that it could be raised only by way of a suit specifically praying that the decree should be set aside as having been obtained by fraud and that the executing Court was not competent to enquire into such an objection. These two findings became res judicata against the petitioner by the order dated 14-1-1966 at Annexure A inasmuch as no appeal was filed by the petitioner against it.