HARDATT SHARMA Vs. JAIKISHEN SHAMLAL AND SONS
HIGH COURT OF JAMMU AND KASHMIR
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I.K.Kotwal, J. -
(1.) This judgment will govern the disposal of Civil Misc. Appeal No. 90 of 1981 and Civil Misc. Petition No. 152 of 1982, moved on behalf of the State of Jammu and Kashmir for being impleaded as a party-respondent to the aforesaid appeal.
(2.) The appeal has a chequered history. The appellant, Hardatt Sharma, in a suit brought by him on 22-10-1979, obtained a consent decree on 27-10-1979, i.e. only five days thereafter, from the court of Sub-Judge (C.J.M.), Jammu, against respondents 1 to 3, namely, Messrs. Jaikishen Shamlal and Sons, a partnership firm and its two partners Jai Kishen and Sham Lal. The decree was to the effect that all the timber in compartments Nos. 16 and 18A in Batote range of Ramban Forest Division, whether standing, felled or sawn, including saw bands installed therein, were his exclusive property and that respondents 1 to 3 could not transfer, or agree to transfer the aforesaid property to any person, nor could they remove the same from there and nor could they operate the aforesaid forest compartments. Execution of this decree was taken out by him against the aforesaid three respondents in the court of Sub-Judge (C.J.M.) Jammu the court that had passed the decree by making an application to it on 12-12-1979 that their property, including the sawn timber lying in their depot at Canal Road, Jammu, be attached and sold, as they had failed to obey the decree. On this, notices were issued to them. In the meantime, three persons, namely, P. L. Dua, Ravinder Dua, and Smt. Usha Gupta on 17-12-1979, made an application to the Executing Court, seeking time to file objections to the aforesaid execution application, as the decree sought to be executed had, according to them, been obtained by fraud. This prayer was granted by the court. They filed their objections on 26-12-1979, attacking the decree mainly on the ground that it was a product of fraud and collusion between the appellant and respondents Jaikishen and Sham Lal, alleging further that they too were the partners in the firm M/s. Jaikishen Shamlal and Sons along with these respondents, by virtue of a deed of partnership executed between them on 22-7-1978 and had invested lacs of rupees in exploiting the forest pursuant to the said partnership.
(3.) On 31-12-1979, the decree-holder made yet another application purporting to be one Under Section 151, Civil P. Code for attachment of 1900 scants lying in the depot of the judgment-debtors which, according to him, he had extracted from the aforesaid forest comprising compartments Nos. 16 and 18A and which the judgment-debtors had brought to their depot against the clear mandate of the decree under execution. The executing court, even though the District Judge at Jammu had by his order dated 31-12-1979 stayed all further proceedings in the execution application on an appeal preferred against the aforesaid decree by P. L. Dua and two others yet passed an order on 1-1-1979, attaching 1900 scants from the depot subject, however, to objections by the judgment-debtors. This order was, however, vacated by it on 5-2-1979 at the instance of P. L. Dua and others; the acquiescence in it of Jai Kishen and Sham Lal not notwithstanding.;
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