DIWJINDER SHARMA Vs. PUNJAB FINANCIAL CORPORATION

JUDGEMENT

(1.) This is a petition under Section 115 of the Code of Civil Procedure (for short, the CPC) for setting aside order dated 26.7.1994 passed by Additional District Judge, Patiala in Civil Misc. No. 28 of 1993.

(2.) The petitioner's son-Kamal Krishan Sharma formed a partnership firm on 30.11.1971 along with Jangeshwar Parkash Batish, Smt. Raj Sharma and Smt. Prem Sharma for doing the business of stone crushing under the name and style of M/s Sharma Stone Crashing Industries (hereinafter referred to as the firm). The firm approached Punjab Financial Corporation (for short, the Corporation) for sanction of loan for purchase of machinery etc. The Corporation sanctioned loan subject to the terms and conditions incorporated in mortgage deed dated 15.5.1973. The petitioner executed a separate mortgage deed in respect of his house bearing No. 516/2, Situated at Guru Nanak Street, Patiala for securing repayment of the loan advanced by the Corporation. After about 3 years, the Corporation filed an application dated 5.8.1976 under Section 31 of the State Financial Corporations Act, 1951 (for short, 'the Act') for recovery of its dues. The petitioner was impleaded as one of the non-applicants apart from the firm and its partners. While issuing notice of the application filed by the Corporation, learned Additional District Judge, Patiala restrained the non-applicants from transferring or removing the machinery, plaint and equipments from the premises of the firm. He also issued ad interim attachment warrant in respect of the mortgaged properties situated in village Bartana, Tehsil Rajpura, District Patiala. After few adjournments, Kamal Krishan Sharma, who was impleaded as non-applicant No. 2 appeared before the Additional District Judge on 7.1.1977 along with his Advocate-Shri Dev Raj Garg and made a statement that the partnership had been dissolved vide deed of dissolution dated 30.12.1974 and he had become the sole proprietor of the firm. He undertook the responsibility to pay the outstanding dues to the Corporation and executed compromise deed Ex.XI for payment of Rs. 1,28,000/- to the Corporation in monthly instalments of Rs. 3200/-. Thereupon, the learned Additional District Judge passed decree dated 7.1.1977 in favour of the Corporation and against Kamal Krishan Sharma.

(3.) After three years of the passing of the afore-mentioned decree, the Corporation filed application for execution of decree dated 7.1.1977 by impleading the petitioner as a party. The Corporation claimed that the decree be got executed by sale of the house which was mortgaged by the petitioner.