GOKAL CHAND Vs. REETA AND ORS.

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 16.6.2005 rendered by the District Judge, Mandi in Civil Appeal No. 24 of 2004.

(2.) "Key facts" necessary for the adjudication of this appeal are that appellant -plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for declaration to the effect that the judgment and decree dated 15.1.1998 rendered by the Senior Sub Judge, Mandi in Execution Petition No. 66/94, titled as Khem Singh v. Gokal Chand, being hit by section 44 of the Evidence Act are nullity in the eyes of law having been obtained by the respondent -decree holder, predecessor -in -interest of the defendants, by playing a fraud upon the court. According to the averments made in the plaint, plaintiff herein was defendant in the case titled as Khem Singh v. Gokual Chand bearing Civil Suit No. 177/1974. It was decreed in favour of Khem Singh, predecessor -in -interest of the defendants, vide judgment dated 9.1.1981. The trial Court directed the plaintiff in the civil suit to deposit a Rs. 8000 on or before 9.2.1981. Gokul Chand who is defendant No. 1 in the civil suit, i.e. plaintiff in the present proceedings, filed an appeal, which was assigned to the Additional District Judge, Mandi. Learned Additional District Judge, Mandi granted ex -parte stay against the impugned judgment and decree rendered by the Senior Sub -Judge. Khem Chand, who was respondent in the appeal, was not served with the copy of stay order, passed by the Additional District Judge, Mandi on 9.2.1981. Later on, appeal filed by Gokul Chand i.e. defendant No. 1 was got dismissed on 19.8.1981. Khem Chand pre -emptor in the previous suit moved an application before the Additional District Judge, Mandi for granting permission for depositing pre -emption money. Additional District Judge vide order dated 30.9.1981 granted extension of time to deposit the preemption money upto 30.10.1981. Later on, pre -emption money was deposited. Defendant No. 1, plaintiff herein, filed a revision petition before this Court which was dismissed on 2.7.1985. The Special Leave Petition filed by the plaintiff was also dismissed by the Hon'ble Supreme Court on 22.8.1994. Thereafter, legal representatives of Khem Singh, i.e. defendants herein, moved an application for execution of decree. The Executing Court summoned the concerned file. Initially, the file was found not to be traceable and the same was re -constructed.

(3.) PLAINTIFF filed replication. Issues were framed by the Civil Judge (Jr. Division), Court No. 3, Mandi on 5.7.2000. He dismissed the suit on 14.1.2004. Plaintiff preferred an appeal before the District Judge, Mandi. He also dismissed the same on 16.6.2005. Hence, the present appeal. It was admitted on the following substantial questions of law: