STATE Vs. GH. NABI GADDA

JUDGEMENT

(1.) THE applicants seek condonation of delay in filing application for restoration of Civil Revision No. 29/1998 titled State of Jammu and Kashmir and another v. Haji Ghulam Ahmad Gadda dismissed in default on 22.5.2005. Before adverting to the grounds set -out in the application it would be appropriate to summarize the back ground facts.

(2.) THE predecessor of non -applicants herein namely Haji Ghulam Ahmad Gadda filed a suit for declaration and injunction in the Court of City Judge Srinagar, on 31.5.1982. The plaintiff sought a declaratory decree declaring the plaintiff to be Kama of land measuring 31 kanal 2 Maria's comprising Survey No's. 80 and 81 Min. in Estate Rakh Gundshah Bemina. The defendants were summoned. The defendants failed to appear and contest the suit and were set ex parte on 31.8.1988. The trial Court after recording evidence in ex parte passed ex parte judgment and decree. The defendants filed an application for setting aside the ex parte judgment and decree. The application was contested by the plaintiff and dismissed on merits. The order dismissing the application for setting aside the ex parte judgment and decree was not questioned before the Appellate Court. The judgment debtors instead questioned legality of the ex parte judgment and decree through medium of a Civil Suit before the Ld. District Judge. Alongside an application for staying the execution of the impugned judgment and decree was also preferred. The Learned District Judge Srinagar stayed execution of the decree. The decree holder preferred a Civil 1st Misc. Appeal Challenging the order of District Judge before this Court. This Court disposed of the appeal with the direction to the Ld. District Judgment Srinagar to hear the matter afresh. The judgment debtors, thereafter instead of pursuing the Civil Suit filed before the Ld. District Judge, left the Civil Suit halfway and preferred to approach the Executing Court for staying the execution of the ex parte judgment and decree.

(3.) THE judgment debtors after meeting no success in Executing Court filed a Civil Revision in the High Court questioning legality of the order of Executing Court dated 30.6.1997 against which an earlier challenge in CIA before 1st Additional District Judge had failed. The Civil Revision was registered as C.R. NO. 29/1998. The decree holder passed away on 22.12.2001 while the Civil Revision No. 29 of 1998 was awaiting disposal. The application of substitution of legal heirs (CMP No. 256/2004) was allowed vide order dated 27.9.2004 subject to the condition that the petitioners file registered covers etc. for service of the substituted respondents within two weeks, failing which the application for substitution was directed to stand "dismissed without reference to the bench." The judgment debtors did not comply with the Court direction dated 27.9.2004 and failed to take the requisite steps and in view of the Court order dated 27.9.2004 the application for substitution was dismissed. The Learned Counsel for the petitioner vide order dated 30.11.2004 was, at his request, allowed two weeks time to seek legal remedy in the matter. Neither any legal remedy was sought nor the petitioner/judgment debtors, appeared to pursue the Revision Petition. The High Court vide order dated 22.2.2005 dismissed the Revision Petition. However, the order dated 22.2.2005 was recalled vide order dated 31.3.2005 and Civil Revision No. 29 of 1998 restored to its original number subject to payment of Rs. 2000 as costs. The judgment debtors once again failed to comply with the order dated 31.3.2005 and on 16.5.2005 the Civil Revision was again dismissed. This time learned Counsel for the petitioner reported no instructions.