SAROJ SHARMA Vs. CHANCHAL SHARMA

JUDGEMENT

(1.) THROUGH the medium of this revision petition order dated 12 -2 -1996 passed by the learned Addl. District Judge, Jammu has been assailed on the grounds that the learned Judge has committed a grave error when while executing the said decree he set aside the judgment and the decree. The petitioner herein had filed suit under O.37 R 2 CPC for the recovery of Rs. 23,000/ -. It is pleaded that the executing court had no jurisdiction to set aside the judgment and decree and the impugned order suffers from the jurisdictional in -competency. The order has caused the mis -carriage of justice and requires to be set aside.

(2.) THE narration of the following facts is necessary. The petitioner decree -holder on 17 -7 -1991 filed the suit under the p revisions of 0.37 R. 2 CPC for the recovery of Rs. 23,000/ -. In the plaint, it was urged that in the month of June, 1988 respondent (defendant therein) alongwith her husband approached the petitioner to lend them loan and this request was accepted. The petitioner advanced a loan of Rs. 50,000/ - to respondent as well as her husband through the medium or cheque drawn on Punjab National Bank Rehari from Saving Account No. 10523 belonging to the petitioner. In para 6 of the plaint, it was alleged that out of the said amount of Rs. 50.000/ -, Rs. 30,000/ - were given as loan by the petitioner through the medium of two cheques of Rs.15, 000/ - each bearing No. QDK182206 dated 1 -6 -1988 and QDK 189173 dated 8 -8 -1988. In para 11 it was averred that principal amount which remained to be paid by respondent was Rs.20, 000/ - and interest accrued thereon Rs. 3000/ - (totaling Rs. 23, 000/ -). Registered notice dated April 9, 1991 was served upon respondent for the recovery of Rs. 22,800/ - but when the amount was not paid, the suit was filled for the recovery of Rs. 23,000/ - with costs.

(3.) THE trial court (additional District Judge, Jammu) passed the exparte decree in the sum of Rs. 20,000/ - plus interest Rs. 3,000/ - and costs of the suit amounting to Rs.1574/ -alongwith interest @12% per annum on the decretal amount upto the date of decree and further interest Rs.12% till the decretal amount was liquidated. Respondent had approached the trial court for setting aside the exparte decree on the plea that she was not served, but this plea did not find favour and it was held that after service she had intentionally remained absent. This order of the trial court has become final.