Shiv Kumar Sharma, J. - (1.) - Instant revision impugns the order dated January 15, 1997 of the learned District Judge, Balotra whereby the application under Order 7 Rule 11 CPC read with Section 11 of the Money Lender Act was dismissed.
(2.) Brief resume of the facts is that the plaintiff non-petitioner No. 1 Gheesulal (in short the plaintiff) instituted a suit for recovery of Rs. 1,19,700/-, against the defendant petitioner Binjraj (in short the defendant) and his surety Mahendra Kumar in the court of District Judge. Balotra. According to the plaint the cause of action arose to the plaintiff on August 23, 1994 by virtue of compromising the execution petition and on October 7, 1995 when according to compromise deed, the money was not deposited and on24.11.1994 when as per the compromise the remaining salt was not allowed to be lifted and thereafter on 9th Nov. 1995 when notice was given. The defendant No. 1 moved an application under Order 7 Rule 11 CPC read with Section 11 of the Money Lender Act, before the learned trial court on the ground that the civil suit was not maintainable and no cause of action arose to the plaintiff' in view of the provisions contained in Section 47 and Order 21 Rule 2 CPC. The learned trial court dismissed the application observing that the question as to whether compromise was legal or not, is the bone of contention between the parties and it can be decided after framing the issues. Thus, the application under Order 7 Rule 11 CPC was ordered to be dismissed.
(3.) Mr. S.D. Vyas, learned counsel appearing for the defendant No. 1 made scathing criticism of the impugned order and canvassed that a bare perusal of the plaint shows that it relates to the execution of the previous decree. As transactions of the previous decree have been made the basis of the suit, the suit is not maintainable as it is. barred under Section 47 read with Order 2 Rule 2 CPC. Mr. Vyas, learned counsel also contended that suit is also barred by the provisions of res judicata. In view of explanation VII of Section 11 CPC, the application under Order 7 Rule 11 CPC ought to have been allowed. Reliance was placed on Motilal Banker v. Mahmood Hasan Khan, M.P. Sreevastava v. Mrs. Veena and Smt.Chelna &Ors. v. Nirbhay Singh.;