ATTAR SINGH Vs. HARGYAN

JUDGEMENT

(1.) THE is plaintiffs' Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found by both the Courts that dismissal of the application filed by the plaintiff-appellants raising objections before the executing Court to the execution of judgment and decree dated 15.3.1961 in favour of the defendant-respondents would operate as res judicata under Section 11 read with Explanation VII of the Code. There are other findings by both the Courts below holding that the suit filed by the plaintiff-appellant Rattan Singh (since deceased and now represented by his legal representatives) against the defendant-respondent No. 1 Hargyan (since deceased and now represented by his legal representatives) was not filed by a person competent and authorised to do so.

(2.) BRIEF facts of the case are that one Sarupi entered into an agreement of sale of his land measuring 88 kanals 19 marlas with defendant-respondent No. 1 Hargyan on 20.7.1959 for a consideration of Rs. 35,500/-. An amount of Rs. 3,000/- as earnest money was paid to her. Sarupi failed to honour the agreement which led to the filing of a Civil Suit No. 43 of 1961 by Hargyan defendant-respondent No. 1 with a prayer for possession by way of specific performance of agreement to sell dated 20.7.1959. It was alleged that the defendant-respondent No. 1 was not in sound financial position to meet litigation expenses which led to an oral agreement. Defendant-respondent No. 1 Hargyan entered into an oral agreement with plaintiff-appellant Rattan Singh which stipulated that half of the litigation expenses would be borne by him in prosecuting the suit of the plaintiff-appellant. There was a further covenant to the effect that in case the suit was to be decreed in favour of the defendant-respondents, then half share of the total land which was subject matter of agreement to sell dated 20.7.1959 had to be sold to the plaintiff- appellant for an amount of Rs. 17,750/-. The amount of Rs. 17,750/- is half of the amount of Rs. 35,000/- for which the agreement of sale had been entered into by defendant-respondent Sarupi on 20.7.1959. An amount of Rs. 1,500/- was paid as earnest money by the plaintiff-appellant. The suit was decreed on 15.3.1961.

(3.) DURING the pendency of execution proceedings initiated by defendant- respondents, the plaintiff-appellants filed an application on 14.5.1974 asserting that the sale-deed in favour of the defendant-respondents to the extent of 1/2 share alone could be executed because of agreement between the plaintiff-appellant and the defendant-respondents to that effect. In sum and substance the executing Court addressed itself on the following two issues :-