JAGDISH RAJ Vs. XXXXX

JUDGEMENT

(1.) This Intra-Court appeal is directed against the order dtd. 3/10/2018 passed by the learned Single Judge, whereby an application for leave to file an appeal against the judgment and decree dtd. 17/3/2005 passed by the Court of 2nd Addl. District Judge, Jammu (herein after referred to as the trial court) filed by the respondent Nos. 1-6 was allowed and delay in filing the appeal was also condoned.

(2.) The order dtd. 3/10/2018 has been impugned by the appellants on the ground that the learned Single Judge without considering the objections of the appellants to the application seeking leave to file an appeal and without granting any opportunity to the appellants to object the application for condonation of delay, has allowed both the applications. It is stated that the learned Single Judge proceeded on the concession of the judgment-debtor (respondent No.7) against whom the execution proceedings were pending before the Executing Court i.e. First Additional District Judge, Jammu, wherein the judgment-debtor i.e. respondent No. 7, has been resorting to the delaying tactics in order to prolong the execution of judgment and decree dtd. 17/3/2005 passed by the trial court. Rather the fact remains that the appellants and the respondent No.7 were the only contesting parties before the learned trial court but the learned Single Judge proceeded on the concession granted by the learned counsel for the judgment-debtor. It has also been stated by the appellants that the respondents 1 to 6 cannot claim ignorance of the decree as respondent No. 7-judgment debtor has been trying to delay the execution proceedings for the last more than 13 years. It has been further pleaded that the application for condonation of delay was filed by the respondent Nos. 1 to 6 on the ground that they were not parties to the suit, in which the judgment and decree dtd. 17/3/2005 was passed and there was nothing before the learned Single Judge as to how the respondent Nos. 1-5 claim to be the beneficiaries of trust and how they were adversely affected by the said decree. In nutshell, the order impugned has been assailed by the appellants on the ground that the learned Single Judge passed the same on the concession of respondent No. 7, who was not in fact the contesting party being judgment-debtor and that the appellants had no locus to file the appeal against the judgment and decree as they were not the 'persons aggrieved'. Further that the application for condonation of delay has been decided by the learned Single Judge in view of the 'no serious objection" from other side and the other side in fact was the judgment debtor i.e. the respondent No.7.

(3.) Mr. R. S. Thakur, learned senior counsel for the appellants vehemently argued that the appellants had filed a suit under Order 37 of Code of Civil Procedure and compromise decree for an amount of Rs.30.00 lacs was passed in favour of the appellants and against the respondent Nos. 6 and 7. The appellants filed the execution petition but the respondent No. 7 continued to prolong the execution proceedings by filing one or the other application and sometimes through the strangers. He further submitted that during the pendency of the execution proceedings, respondent No. 6 through Receiver i.e. respondent No. 9 executed deed of simple mortgage for the land measuring 1 kanal and 4 marlas situated at Toph Sherkhania, Jammu in favour of respondent No. 8 for an amount of Rs.20.00 lacs. It is further argued that the respondent Nos. 1 to 5 cannot be considered as 'persons aggrieved' so as to file an appeal against the judgment and decree for the recovery of amount of Rs.30.00 lacs along with interest. He also laid stress that the appeal was hopelessly time barred and the learned Single Judge has passed the judgment impugned on the premise of no serious objection from other side, whereas the fact remains that neither the appellants nor their counsel was present on the date when the order was passed.