STATE OF J&K Vs. GH MOHD KHUROO

JUDGEMENT

(1.) THIS revision by the judgment debtors is directed against an order by which their accounts have been attached in an execution proceeding.

(2.) THE facts of the case are that respondent Ghulam Mohammad Khuroo instituted suit No. 50/Civil of 1983 claiming Rs. 38,175/ - as dues from the petitioners on account of execution of certain contract work and damages resulting from breach of contract, and earnest money. The petitioners failed to file written statement within time allowed and in the circumstances on 18 -7 -1985, order was passed "striking off" defence. The petitioners came to this Court in Civil Revision No. 129/1985 by order dated 17 -4 -1986, the revision was disposed of with liberty to the petitioners to file written statement on payment of costs imposed by the court, by 30 -4 -1986 failing which the impugned order striking off the defence was to stand confirmed. Unfortunately, the petitioners failed to file the written statement within time. They did so on 14 -6 -1986. The written statement was accepted by the trial court against which respondents filed Civil Revision No. 144/1986. By order dated 11 -5 -1989, this Court set aside the order by which the written statement was accepted on the ground that in terms of the earlier order, the written statement should have been filed by 30 -4 -1986. At the stage of trial the witnesses of the respondent were cross examined on behalf of the petitioners but they did not examine any witness and thus led no evidence of their own. It is futile to go into the course which the trial of the suit took at this stage. Unfortunately the appeal preferred by the petitioners against the judgment and decree in the suit was dismissed on the ground of limitation with the result that the decree of the trial court rendered virtually ex parte became final. The respondent levied execution in course of which impugned order came to be passed on 27 -8 -2002. Mr.S.R.Hussain, learned AAG appearing for the petitioners submitted that the declaratory decree passed by the trial court cannot be executed and, therefore, the execution case is not maintainable. He referred to the relief portion of the plaint and the decree sheet. The relief portion of the plaint reads as under: -

(3.) IT is well settled that the nature of the suit has to be gathered on the basis of the averments in the plaint as a whole and not only the relief(s) sought by the plaintiff. Perusal of the plaint as a whole leaves little room for doubt that the suit was for recovery of money. Even if the respondent did not seek such relief in so many words, the court was competent to mould the reliefs claimed and grant appropriate reliefs which the plaintiff was be entitled to. Indeed, the respondent had sought "any other order and decree for the consequential relief. The decree declaring the respondent entitled to recovery of money was thus in accordance with the case of the respondent and not beyond the scope of the suit. In any view of the matter, the decree having attained finality, its correctness cannot be questioned at this stage.