HINDUSTAN MOTORS LIMITED Vs. ANIL RAMGOPAL AGARWAL

JUDGEMENT

(1.) THE present appeal and application arises out of a judgment and order dated 27th March, 2008 passed by the learned trial court. By the said judgment and order dated 27th March, 2008, the learned trial court dismissed an application filed by the petitioner, being the appellant herein, for recalling of an earlier order dated 3rd May, 2005, passed on an execution application.

(2.) THE order dated 3rd May, 2005 records that the judgment-debtors, being the respondents herein, and the decree-holder, being the petitioner/appellant before us, had settled the matter between themselves and had entered into a compromise and the execution application, based on which the order dated 3rd May, 2005 was passed, was disposed of on the basis of such compromise said to have been arrived at between the parties. The case of the petitioner before the learned trial court as well as before us is that the order dated 3rd May, 2005 should be recalled since the judgment-debtors/respondents in the execution proceeding perpetrated fraud on the decree-holder and made over a property to the decree-holder, without having obtained occupancy certificate from the Nasik Municipal Corporation, binding the decree-holder to an obligation for payment. The petitioner/appellant submits before us that the property, being a showroom, cannot be enjoyed by them, and as such, neither the decretal debt was discharged nor has any obligation to pay arisen, in terms of the compromise, so far as the petitioner/appellant is concerned. The learned advocate for the petitioner/appellant submits that since the judgment-debtors/respondents obtained the compromise by perpetrating fraud on the decree-holder, the order dated 3rd May, 2005, which records such compromise, is liable to be recalled and that the learned trial court erred in law by not doing so.

(3.) WE have perused the order of the learned trial court as well as the terms of compromise, based on which the order dated 3rd May, 2005 was passed. We have also perused the occupancy certificate issued by the municipal corporation, handed up by the learned advocate for the judgment- debtors/respondents during the course of hearing. We have taken note of the fact that under clauses 17 and 18 of the terms of compromise it has been stated as follows: -