FR KOSHY ALEX T Vs. TANSUKHLAL MAGANLAL SAMEJA

JUDGEMENT

(1.) THE present Petitioners (Ori. Plaintiffs/applicants) have filed the revision application under Section 115 of Code of Civil Procedure challenging the legality and validity of the order dated 15.11.2000 passed by the learned 3rd Jt. Civil Judge (S.D.), at Rajkot (hereinafter referred to as the "Executing Court") in Special Civil Darkhast No. 7/1998.

(2.) THE short facts giving rise to the present application are that the present Petitioner - Trust, through its trustees, had filed a suit being the Special Civil Suit No. 253/1988 against the present Respondent (Original Defendant) seeking recovery of Rs. 55,460/ -, in the Court of Civil Judge (S.D.) Rajkot. It was alleged, inter alia, that the Defendant had not returned the amount of Rs. 55,460/ -paid by the Plaintiff to the Defendant as per the agreement dated 2.1.1988 entered into between the parties in respect of the sale of plot of land bearing survey No. 80 of village Nana Mava of District Rajkot. It appears that the RespondentDefendant was served with the summons in the said suit and the learned advocate Mr. K.C. Vora had also filed his appearance on behalf of the Respondent -Defendant. However, subsequently, the said advocate filed "no instructions" purshish in the said Court. It appears that thereafter the Court had adjourned the matter from time to time to enable the said advocate to inform the Defendant, and that the said advocate having informed the Defendant about his retirement from the case by serving notice through registered post, the said Court permitted him to retire from the case. It further appears that thereafter, nobody was engaged by the Defendant and the said suit was proceeded further in absence of the advocate for the Defendant. Ultimately, the said suit came to be decreed by the trial Court vide the judgment and order dated 31.12.1997.

(3.) THE Petitioner -Plaintiff, thereafter, filed the execution application being Special Civil Darkhast No. 7/1998 on 23.2.1998 before the executing court, seeking execution of the said decree. It further appears that in the said Execution Petition, the notice was served to the opponent (Defendant) and order of attachment was also passed, however, since the property sought to be attached did not belong to the opponent, the said application was dismissed by the Executing Court. The applicant -Plaintiff, thereafter, filed the supplementary execution application ex. 31. The said application was resisted by the opponent by filing the objections at Ex. 44. It appears that the applicant also filed an application Ex. 38, under Order 21 Rule 41 of Code of Civil Procedure for attachment of the movable properties of the opponent, which was resisted by the opponent by filing the objections at Ex. 45. The executing Court, thereafter, hearing the learned advocates for the parties, dismissed the execution application and supplementary execution application of the Petitioners Plaintiffs vide order dated 15.11.2000, mainly on the ground that the judgment and decree in the civil suit was obtained by the Plaintiffs by committing fraud. Being aggrieved by the said judgment and order, the trustees of the Plaintiff trust have preferred the present civil revision application under Section 115 of Code of Civil Procedure. In the present revisional proceedings, nobody appears for the Respondent (original Defendant -judgment debtor) though duly served.