Jasbir Kaur vs Shri Vishnu Dutt and Others

Vinod K. Sharma, J.

C.M. No. 3976-C of 2009

This is an application u/s 5 of the Limitation Act for condoning the delay of 27 days in filing the appeal.

It is has been averred in the application that delay has occurred on the part of the counsel for the appellant.

It is settled law that party should not be allowed to suffer for the fault on the part of the counsel.

Consequently, the C.M. is allowed and the delay of 27 days in filing the appeal is condoned.

R.S.A. No. 1338 of 2009

This regular second appeal is directed against the judgment and decree dated 25.11.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant to challenge the judgment and decree dated 17.8.1994 passed in civil suit No. 241 of 1994 titled Jasbir Kaur v. Vishnu Dutt, stands dismissed.

The suit was filed by the plaintiff through her attorney, which was decreed with the consent of the parties. The plaintff challenged the said decree on the plea that the factum of exchange per se was bad in law, as the property said to have been handed over to her was, in fact, her own property, so there was hardly any question of exchange.

The learned Courts below have recorded a concurrent finding of fact holding that the plaintiff has failed to prove the fraud or misrepresentation. The learned lower appellate Court also held that the suit was barred by limitation having been filed after three years of passing of decree, specially when plaintiff/appellant got the said decree by filing suit through attorney.

The learned Counsel for the appellant contends that this appeal raises the following substantial questions of law:

Whether the transaction in which both the properties belong to one person can be defined as exchange as per Section 118 of the Transfer of property Act?

Whether there can be any valid exchange in which in return one party is not getting anything but in fact loosing the ownership of the property?

Whether any transfer of property value of which is more than Rs. 100/- does not require any registration and any such like transaction without registration would have any binding effect?

Whether the judgment and decree dated 17.8.1994 is not null and void since the alleged exchange cannot be termed as exchange as per Section 118 of the Transfer of Property Act?

Learned Counsel for the appellant contends that after coming to know about the passing of judgment and decree and the sanctioning of mutation, present suit was filed to challenge the judgment and decree, which was prima facie null and void as the alleged exchange could not be termed to be exchange, as no benefit accrued to her under the exchange, whereas one shop was lost in favour of the defendant/respondent.

It is also the contention of the learned Counsel for the appellant that the suit could not be said to be time barred, as it was filed within limitation from the date of knowledge.

In support of the contentions, the learned Counsel for the appellant placed reliance on the judgment of this Court in Ram Dhari and Ors. v. Smt. Darbo and Ors. 1996(2) RRR 344 wherein this Court has been pleased to lay down that a consent decree, is as good as the decree suffered after a keen contest and can be only avoided on the ground of fraud, misrepresentation, coercion and in case of person of unsound mind or next friend being negligent. However, where the consent decree is proved to be obtained on the basis of non-existent facts and by misrepresentation, such decree can be held to have been procured by fraud.

The learned Counsel for the appellant contends that the fact that the decree was obtained on non-existent reasons stands admitted by the defendant, thus, it was liable to be set aside on ground of fraud and misrepresentation.

The learned Counsel for the appellant contends that the substantial questions of law deserve to be decided in favour of the appellant.

However, on consideration of matter, I find no force in the contentions raised by the learned Counsel for the appellant. The decree was suffered by plaintiff/appellant herself, as the suit was filed by the plaintiff/appellant and not the defendant.

The contention of the learned Counsel for the appellant that the suit was filed within limitation from the date of knowledge is totally misconceived, and cannot be accepted as the plaintiff had filed the case through her attorney i.e. husband.

Furthermore, it is settled law that once the decree has been suffered, in the subsequent proceedings, the Court cannot go into the merits of the averments made in previous suit, which stood decreed, in view of the law laid down by this Court in Gurdev Kaur and Anr. v. Mehar Singh and Ors. 1990 (1) PLR 334.

No merit.

Dismissed.