MISRA BIBI Vs. MOHD HUSSAIN

JUDGEMENT

(1.) The appellant was an allottee of Plot No. 3, Sector No. 2 measuring 25' x 50' situated at Gujjar Nagar, Jammu, in which she constructed two rooms, one Kitchen with a bathroom and was living therein. Respondent No. 1, started living in the said house with the appellant and ultimately threw her out of the possession of the said house. The appellant filed a suit against respondent No. 1. The suit was decreed by the learned District Judge, Jammu on 10th April 1992. Respondent No. 1 went in appeal, which was also dismissed by this Court Judgment dated 2nd February 1994. Respondent No. 1 filed a Letters Patent appeal, which too came to be dismissed on 29th March 1996. The appellant then filed an execution application before the Court of learned District Judge, Jammu, seeking the recovery of possession from the Judgment-debtor-respondent No. 1. During the course of pendency of the said execution application, the appellant executed a Sale Deed in favour of respondent No. 1, which came to be registered by the Sub-Registrar, Jammu on 19th July 1996. Through this Sale deed, the appellant sold out and transferred her rights and interest in the decree and the subject matter of the decree in consideration of rupees one lac in favour of respondent No. 1. After having purchased the rights of the appellant under the said decree, respondent No. 1 filed an application under Section 146 read with Order 21, Rule 16 of the Civil Procedure Code for being impleaded and substituted in the execution proceedings for the original Decree-holder. The notice was issued to the appellant by the Executing Court and in objections to the application filed by respondent No. 1, she admitted the averments of the application of respondent No. 1 and conceded the impleadment of respondent No. 1 in the execution proceedings. Objections filed by the appellant bore thumb impression of the appellant as well as signatures of her Advocate, Mr. A. G. Sheikh. In support of her objections, she filed an affidavit duly attested by Public Notary Jammu, in which she was identified by her own Advocate, Mr. A. G. Sheikh as well as one more witness namely, Mohd. Rafiq. After the filing of the said objections by the appellant, the Executing Court passed the following order :

(2.) This order passed by the executing Court was never challenged by the appellant in any appeal or revision and thus attained finality and accordingly, decree was executed and satisfied, as has been submitted by the counsel for the respondent.

(3.) In the year 1997, on 19th May, the appellant instituted a fresh suit in this Court against said Mohd. Hussain as well as Mohd. Shafi, seeking declaration to the effect that Sale Deed dated 19th July 1996 executed in favour of defendant No. 1, who is respondent No. 1 here in connivance with defendant No. 2, who is respondent No. 2 here, is null and void for having been obtained by fraud, misrepresentation and under the threat of filing SLP in the Supreme Court and is, therefore, ineffective, inoperative as no consideration as per market value stood paid to the Vendor by the Vendee and the consequential relief of perpetual injunction for restraining the defendants from changing, alienating or parting with the property subject matter of the Sale deed was also sought.