HARI SHANKAR Vs. SARDAR HARNAM SINGH

JUDGEMENT

(1.) The petitioner assails the order dated 19th November, 2012 passed by the Additional District Judge in Suit No.302/2009 by filing of the present petition under Article 227 of the Constitution of India. The learned trial court dismissed the application of the petitioner under Section 151 CPC for recalling the order dated 17th August, 2010 striking out the defence of the petitioner (defendant No.1 in the suit).

(2.) The parties to the present petition have made their respective rival submissions. It is necessary to mention certain facts with regard to the litigations pending between the parties.

(3.) Sh.Harnam Singh, respondent No.1 herein, executed an agreement to sell dated 5th October, 2004 in respect of suit bearing No.G-2, Old Mahavir Nagar, Main Najafgarh Road, Tilak Nagar, New Delhi, measuring 133 sq. yards, for a total sale consideration of Rs. 10 lac in favour of the present petitioner Sh.Hari Shankar, who filed a suit for specific performance against Sh.Harnam Singh, respondent No.1 before the learned District Judge, being Suit No.441/2004, which was decreed on the application under Order XII, Rule 6 CPC for judgment on admission by order dated 25th April, 2005. The petitioner thereafter filed an execution, being Execution No.389/2006, wherein a Local Commissioner was appointed by the Court through whom the sale deed was executed in favour of the petitioner on 25th August, 2006 in respect of the suit property. The respondent No.1 thereafter in the year 2008 filed a suit for declaration, mandatory and prohibitory injunction, being Suit No.45/2008, against the petitioner herein (defendant No.1 in the suit) and respondent No.2 (defendant No.2 in the suit) praying therein, inter alia, for passing a decree for declaration for setting aside the decree and judgment dated 25th April, 2005 passed by the Additional District Judge in Suit No.441/2004. The sum and substance of the suit filed by the respondent No.1 is that the consent decree obtained by the petitioner was by playing fraud upon the Court as well as the respondent No.1 who averred such details in the plaint. Copy of the same was supplied to this Court. Such details taken from the copy of the plaint supplied are mentioned as under: