IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 86 of 2007 1. Farooque Ahmad S/o late Shakoor Ahmad 2. Gulsher S/o late Shakoor Ahmad Through General Power of Attorney holder Abdul Majid s/o late Salaru R/o Salempur Mahdood, Thana Ranipur, Tehsil and District, Haridwar. ...…………. Revisionists Versus 1. State of Uttarakhand. 2. The Sessions Judge, Haridwar. 3. Jamil Ahmad S/o Maqdoom Baksh R/o Village Salempur Mahdood Thana Ranipur, District Haridwar. ...…………. Respondents Mr. S.K. Shandilya, Advocate for the revisionists. Mr. M.A. Khan, Brief Holder for the State. Hon’ble Prafulla C. Pant, J. This revision is directed against the order dated 20th of November 2004, passed by Civil Judge (Junior Division), Haridwar, in Criminal Misc. Case No. 34 of 2002, Farooque Ahmad Vs. Jamil Ahmad, whereby an application moved under Section 340 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is dismissed by said Court. In this revision the judgment and order 2 dated 7th of February 2007, passed by Addl. Sessions Judge / IV F.T.C., Haridwar, in Criminal Appeal No. 70 of 2004 is also challenged, whereby said appellate court has dismissed the appeal, and affirmed the order passed by the trial court. 2) Heard learned counsel for the parties. 3) Brief facts of the case are that a Suit No. 153 of 1996, was instituted by the revisionists against respondent No. 3 Jamil Ahmad, which was decreed ex- parte on 13.10.1997. Execution Case No. 02 of 1998, was filed by the decree holder, and the decree appears to have been executed. The respondent No. 3, alleging that he came to know of the proceedings only on 19.12.2001, moved an application on 20.12.2001, under Order 9 Rule 13 of the Code of Civil Procedure, 1908, for setting aside of the ex-parte decree. Said case was registered as Criminal Misc. Case No. 76 of 2001, and after hearing the parties, the same was dismissed. On this the plaintiffs / revisionists moved Application 4-C before the trial court for initiating proceedings against the defendant (present respondent No. 3) under Section 340 of Cr.P.C. Said application was registered as Misc. Case No. 34 of 2002, and dismissed by the trial court vide order dated 20th of November 2004. Aggrieved by said order, the plaintiffs filed Criminal Appeal No. 70 of 2004, which was also dismissed vide impugned order dated 07.02.2007. Hence, this revision. 3 4) Admittedly, the Suit No. 153 of 1996 was filed against respondent No. 3 and some other persons by the plaintiffs (present revisionists), which was decreed ex- parte on 29.09.1997. It is also not disputed that the decree was executed in the proceedings initiated in the form of an Execution Case No. 02 of 1998. It is also admitted to the parties that application moved under Order 9 Rule 13 of the Code of Civil Procedure, was moved by the defendant No. 4 (present respondent No. 3) for setting aside the ex-parte decree, but the same was dismissed. The only ground on which the present proceedings are initiated is that the affidavit filed by the defendant No. 4 (present respondent No. 3) was false and filed to get the ex-parte decree set aside. Undoubtedly, said affidavit was considered by the trial court, but the trial court did not believe the ground taken in the affidavit by the defendant that he had no knowledge of the proceedings of the suit. But, there is no finding given by the trial court while rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure that the affidavit filed by the defendant No. 4 (present respondent No. 3) was false. Not believing the ground mentioned in the affidavit is different from holding that a particular fact averred by the party is false. It is not called for in each and every case to draw proceedings under Section 340 of Cr.P.C., but only when the court feels it necessary in the interest of justice to hold an enquiry as to the offence mentioned in Section 195(1)(b) of Cr.P.C., the proceedings are drawn. The trial court, in its wisdom, 4 has not thought it just and proper to proceed against the defendant No. 4 (present respondent No. 3) under Section 340 of Cr.P.C., as there is no categorical finding that the affidavit was false. 5) In the above circumstances, this Court does not find any error of law committed by the trial court or by the appellate court. Therefore, the revision is dismissed. (Prafulla C. Pant, J.) Dt. May 13, 2010. H. Negi 5