OM PARKASH MITTAL Vs. RADHE SHYAM MITTAL

JUDGEMENT

(1.) CM Nos. 12903-C and 12904-C of 2008 For the reasons recorded in the applications, the delay of 126 days in filing and 22 days in refiling the present appeal are condoned. CMs stand disposed of. RSA No. 4342 of 2008 This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the plaintiff-appellant challenging the preliminary decree for rendition of accounts to which he was a party and which was ultimately affirmed up to this Court. The ground taken in the present suit was that in the earlier suit the respondents did not mention that the property had been partitioned and that is how they obtained the decree by fraud. Learned counsel is not in a position to deny that the appellant was a party in that suit. Learned Lower Appellate Court has rightly held that in those circumstances there could be only two alternatives viz. (i) either the appellant took this plea in the earlier suit - in which case the present suit would be barred by res judicata and (ii) that the appellant did not take this plea in the previous suit- in which case the plea in the present suit would be barred by Order 2 Rule 2 C.P.C. The following questions have been proposed :-

(2.) LEARNED counsel for the appellant has placed reliance on a judgment of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (dead) by LRs and others reported as (1995- 1) The Punjab Law Reporter 293 and particularly paras 5 and 6 thereof wherein it has been held as follows :-

(3.) THE proposed questions No. (iii) to (xx) which all deal either with the plea of fraud or with the findings in the earlier suit have to be held against the appellant.