IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 507 of 1998 Reserved on 19.6.2009. Date of Decision: 7.7.2009. ------------------------------------------------------------------------------------- Kanta Rani ……….Appellant Versus Sh. Ram Parkash alias Parkash & Anr ………..Respondents ------------------------------------------------------------------------------------ Coram: The Hon’ble Mr Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant ………Mr G.D. Verma Sr. Advocate with B.C. Verma, Advocate. For the Respondents ………Mr Dinesh Bhanot, Advocate ----------------------------------------------------------------------------------- Kuldip Singh, Judge. The plaintiff has come in second appeal against the judgment, decree dated 23.7.1998 passed by District Judge Solan in Civil Appeal No. 32-NL/ 13 of 1997 reversing judgment, decree dated 9.6.1997 passed by Sub Judge, Ist Class Nalagarh in Civil Suit No. 82/1 of 1995/ 1992. 2. The facts in brief are that appellant had filed a suit for declaration that gift deed dated 26.6.1989 Ex. P-12 is nominal, sham, fictitious, fraudulent and had been executed by respondent No. 1 in favour of respondent No. 2 with an intent to defeat and delay the appellant creditor in realization of debt of decretal amount, vide judgment Ext. P-15 dated 29.8. 1991, in Civil Suit No. 18/1 of 1990, the respondent No. 2 has no interest in the suit land, the revenue entries in favour of respondent No. 2 on the basis of gift deed Ex. P-12 are wrong, illegal, void, fictitious and inoperative on the rights of the appellant to proceed against the suit land for attachment and sale and to realize the decretal amount from respondent -------------------------------------------------------------- Whether reporters of local papers may be allowed to see the judgment ? Yes. -2- No. 1. Consequently relief of permanent prohibitory injunction restraining respondent No. 2 from claiming any right in the suit land and restraining respondents 1 and 2 from creating any impediment in any manner in the realization of decretal amount of the appellant against respondent No. 1 was also prayed. 3. The further case of the appellant is that one Smt. Bholi alias Ramesh Kumari had borrowed a sum of Rs 13275/- from appellant on different dates and she executed a writing dated 26.11.1987 to that effect. Thereafter Smt. Bholi and respondent No. 1 had paid a sum of Rs 800/- to appellant before Khangi Panchayat and undertook to repay the remaining amount of Rs 12475/- to appellant before 30.4.1988. The respondent No. 1 also executed a memo in the shape of pronote in respect of the aforesaid amount. The amount, however, was not paid either by Smt. Bholi or respondent No. 1. The appellant had filed Civil Suit No. 18/1 of 1990 for recovery of Rs 15278/- against the respondent, which was decreed on 29.8.1991. 4. It has also been alleged that appellant had requested the judgment debtors to pay the decretal amount but to no avail. On 27.3.1992 she obtained a copy of the jamabandi of the land of respondent No. 1 and came to know that respondent No. 1 had transferred his land in favour of his son respondent No. 2 by way of gift. The gift deed dated 26.6.1989 is fictitious and fraudulent transfer which was executed by respondent No. 1 in favour of respondent No. 2 with ulterior motive to defeat and delay her claim for realization of decretal amount. -3- 5. The suit was contested by respondent by filing written statement. They took objections of maintainability, non- joinder of necessary party, lack of cause of action. On merits execution of pronote was denied. It was pleaded that the document was signed as a witness and not as executant. The decree passed in Civil Suit No. 18/1 of 1990 is void and is not enforceable. Transfer of land by respondent No. 1 in favour of respondent No. 2 was not denied. The appellant filed replication and re- asserted her case. 6. On the pleadings of the parties, the following issues were framed by the trial Court:- 1 Whether the gift deed dated 26.6.89 executed by defendant No.1 in favour of Shri Dev Raj, defendant No. 2 is sham and fictitious transaction, as alleged ?....OPP 2 If issue No. 1 is proved in affirmative whether the said gift deed does not affect the rights of the plaintiff to recover the outstanding amount from the defendant No. 1 as alleged ?. …….OPP 3 Whether the decree dated 29.8.91 passed in Civil Suit No. 18/1 of 1990 is illegal, null and void, as alleged ? ……..OPD .4 Whether the plaintiff has cause of action ? ………OPP 5 Whether this Court has no jurisdiction to entertain and dispose off the present suit ? ……….OPD 6 Whether the suit has not been properly valued for the purpose of the present suit ? ……….OPD 7 Whether the suit is not maintainable in the present form, as alleged ? ……….OPD 8 Whether the suit is bad for non-joinder of necessary Parties ? ………..OPP 9 Whether the plaintiff has locus-standi to sue ? ……….OPP 10 Relief. -4- 7. The issues No. 1,2,4 and 9 were answered in affirmative and issues No. 3,5,6,7 and 8 in negative and the suit was decreed on 9.6.1997. In appeal the District Judge has reversed the judgment, decree dated 9.6.1997 and dismissed the suit. Hence, the appellant has come in second appeal which has been admitted on following substantial questions of law: 1. Whether the Ld. District Judge has acted illegally by holding that the appellant could execute the decree only against Smt. Bholi defendant No. 1 in earlier suit No. 18/1 of 90 though the decree dated 29.8.91 in that suit is against both the defendants i.e. Smt. Bholi and Ram Parkash; 2. Whether in the absence of filing of any appeal by Respondent No. 1 against the judgment and decree dated 29.08.91 the same became final and the Ld. District Judge could not held the same null and void; 3. Whether without filing a civil suit by Respondent No. 1 against the decree dated 29.08.91 the decree in question became final against him and the contrary view taken by the District Judge is illegal; 4. Whether the decree Ex. P-16 dated 29.08.91 has wrongly been considered by the Ld. District Judge to be an exparte decree though the same has been passed on merits; 5. Whether the Ld. District Judge is justified in assuming and presuming that the present suit was filed by the appellant to take revenge against the Respondent No. 1 in the absence of any allegations and legal evidence; 6. Whether the Respondent No. 1 was estopped to assail the validity of decree dated 29.08.91; 8. Heard and perused the record. Mr G.D. Verma, learned Senior Advocate appearing on behalf of the appellant has submitted that District Judge has unsettled the judgment, decree dated 29.8. 1991 Exts. P- 15 and P-16 whereby the suit filed by the appellant against Smt. Bholi and Ram Parkash alias Parkash Sharma (respondent No. 1) for Rs 15278/- was decreed. The judgment, decree Exts. P-15 and P-16 had attained finality. The respondent No. 1 is estopped from challenging the validity of judgment and decree in the present litigation. The learned Senior Advocate -5- has submitted that in the facts and circumstances of the case the impugned judgment, decree are liable to be set aside. 9. Mr Dinesh Bhanot, learned counsel for respondents has submitted that the very basis of the suit of the appellant is defective. The gift deed Ex. P-12 was executed on 26.6.1989. The judgment and decree are dated 29.8.1991 much after the gift Ext-P-12 dated 26.6.1989, therefore, there is no question that on 26.6.1989 the appellant was the creditor of respondents on the basis of judgment and decree dated 29.8.1991. He has submitted that suit of the appellant is misconceived. 10. The substantial questions of law 1 to 6 can be conveniently considered and disposed of collectively, therefore, the aforesaid substantial questions of law are being considered collectively for disposal. 11. The appellant has made specific prayer in the plaint for declaration that the transfer of land by way of gift deed Ex. P-12 executed by respondent No. 1 in favour of respondent No. 2 had been made with an intent to defeat and delay the appellant creditor in realization of debt i.e. the decretal amount vide decree dated 29.8.1991 in Civil Suit No. 18/1 of 1990, the gift deed dated 26.6.1989 in favour of respondent No. 2 is wrong, illegal, void, fictitious, invalid and as such is inoperative on the rights of appellant to proceed against suit land for attachment and sale to realize the above mentioned debt and decretal amount against respondent No. 1. The prayer made in the suit is absolutely clear that appellant claimed herself to be the creditor of respondent No. 1 on the basis of decree dated 29.8.1991. The gift deed Ex. P-12 is dated 26.6.1989. In these circumstances it cannot be said that gift deed Ex. P-12 executed by respondent No. 1 in favour of -6- respondent No. 2 was to defeat the execution of decree dated 29.8.1991, Ext. P-16. 12. There is substance in the submission of Mr G.D. Verma Senior Advocate that District Judge has erred in unsettling the judgment, decree Exts. P-15 and P-16 which had attained finality. The respondent No. 1 in the present litigation is bound by judgment and decree Exts. P-15 and P-16 in which appellant was plaintiff. The District Judge has erred in observing in para 17 of the impugned judgment in the context of Exts. P-15 and P-16 that the writing/ pronote so taken from respondent No. 1 was without consideration, as nothing was received by respondent No. 1. In paragraph 19 of the impugned judgment the District Judge has observed, no doubt decree Ex. P-15 was not challenged by way of appeal by respondent No. 1 nor filed an application to set aside the same. But respondent No. 1 has questioned the legality on the ground that no consideration of pronote had passed between him and the appellant and the pronote was without consideration. As such on the basis of pronote no decree could have been passed against respondent No. 1. The decree Ex. P-16 against respondent No. 1, for that matter may be null and void. These observations of learned District Judge are totally wrong and illegal. In making these observations the District Judge has exceeded the jurisdiction. The judgment, decree Exts. P-15 and P-16 had attained finality and binding on respondent No. 1. In judgment, decree Exts P-15 and P-16 appellant was plaintiff and respondent No. 1 was one of the defendants. In these circumstances the findings of the District Judge that decree Ext. P-16 against respondent No. 1 may be null and void is set aside. However, ultimate dismissal of the suit by District Judge is upheld. The aforesaid substantial questions of law 1 to 6 are accordingly decided. -7- 13. No other point was urged. 14. In view of the observations made above, the appeal is dismissed with no order as to costs. (Kuldip Singh) Judge. July 7,2009. (KC)