A declaration to the ef­fect that a decree dated 2-12-1983 passed by Sub-Registrar (Munsiff), Jammu in Civil Suit No, 515 instituted on 30-11 -1983 is null and void without jurisdiction, inoperative and inexecutable and not binding on the plaintiff-appellant was sought. A civil suit was filed. This suit stands dismissed. Now this first appeal has been preferred. 2. The circumstances under which this suit came to be filed be noticed. 3. The appellant is in possession of a shop. This is situate at Shalamar Road Jammu. The description of this shop and the terms and conditions of the alleged ten­ancy are given in para 1 of the plaint. It is stated that the monthly rent was settled at Rs. 300/-. This tenancy is said to have been in the year 1971. This shop is owned by defendant-respondent No. 1. The appellant submits that he was carrying on business in this shop in partnership with other per­sons. The names of these partners are Rajinder Kumar, Partool Chand, Sita Devi and Shanti Devi. It is the case of the appel­lant that respondent No. 1 insisted upon getting a deed executed which should indi­cate that his wife Susheela Gupta is a part­ner with the plaintiff-appellant and other partners. This deed was executed. The pe­riod to which this deed pertains is said to be 1971. In this partnership deed it is al­leged that nothing was said as to the pay­ment of rent. This document as per the appellant-plaintiff was benami. The share of Smt. Susheela Gupta wife of Kuldeep Raj respondent No. 1 was indicated as 0.8 paise. It is the case of the appellant that the shop continued to be in his possession as a ten­ant. In the year 1973 a deed of dissolution of partnership is said to have been executed dissolving the partnership with the appel­lant and other partners including the wife of the defendant. This is dated 12-4-1973. This deed contains a recital that the part­nership stood dissolved with effect from 31-3-1973. Copies of this partnership deed as also the dissolution deed stand appended to the plaint as Annexures P/l and P/2. It is the further case of the appellant that by practising a fraud on him a document which was annexed as Annexure P/3 with the plaint was got executed on 31-3-1973. That deed has made to operate as a mortgage deed. It is the further case of the appellant that by practising a fraud on him a document which was annexed as Annexure P/3 with the plaint was got executed on 31-3-1973. That deed has made to operate as a mortgage deed. The mortgage deed is also said to be a sham transaction. It is suggested that there was absolute no need and no occasion for executing the mortgage deed for a meagre sum of Rupees five thousand when the value of the shop was more than rupees three lakhs. In para 8 of the plaint it is mentioned that there was no need for the defendant No. 1 for obtaining a petty amount of ru­pees five thousand from the plaintiff. It is stated that defendant No. 1 is a practising Advocate. He had sufficient income of his own. This aspect of the matter is being pro­jected with a view to show that so far as mortgage deed is concerned, this was a de­vice with a view to later on corner the plain­tiff-appellant. The meagre mortgage consid­eration mentioned for executing mortgage is projected as a factor to be taken note of with a view to establish that the whole trans­action was fraudulent. Further plea as pro­jected by the appellant in the plaint was that even after the execution of the mortgage deed, the defendant No. 1 continued to re­ceive rent but receipt was not being issued. Such is the stand taken in paragraph 9 of the plaint. It is alleged that with a view to give effect to the fraudulent intention re­ferred to in paragraphs 8 and 9 of the plaint, it is submitted that defendant No. 1 filed a suit being civil suit No. 515-Civil on 30-11-1983. This was for redemption of mortgage in respect of the said shop. Copy of the plaint in the said suit was appended with the plaint out of which the present appeal has arisen. This was marked as Annexure P/4. This suit was valued at Rs. 10/-. It is submitted that if the mortgage amount was Rs. 5000/- then it was supposed to be valued accordingly. In the plaint, as per the appellant, there was a recital that the total interest on the rent received by the defendant in terms of the mortgage deed up to 30-10-1983 came to Rs. 12,700/-. 10/-. It is submitted that if the mortgage amount was Rs. 5000/- then it was supposed to be valued accordingly. In the plaint, as per the appellant, there was a recital that the total interest on the rent received by the defendant in terms of the mortgage deed up to 30-10-1983 came to Rs. 12,700/-. It is submitted that defend­ant No. 1 who was a practising Advocate knew fully well that the Court of the Sub-Registrar Jammu had no pecuniary juris­diction nevertheless he filed a suit in that Court. It is sought to be urged that this was done by furnishing a meagre value for the purposes of Court-fees and jurisdiction at Rs. 10/-. It is further projected that this valuation of the suit and further matter fil­ing of the suit was kept a guarded secret from the appellant. This was so stated in paragraph 11 of the plaint. It is stated that no notice was served on the plaintiff before filing of the suit. It is also stated that after the suit was filed even the summons were not served on the plaintiff. The fact that in the summons issued by the Court in the civil suit it was indicated by the Process Server that the appellant was not available, is re­quired to be taken note of. The summons, it is stated were not accompanied by the copy of the plaint. The copy of the summons stands appended with the plaint is Annexure P/5. It is accordingly submitted that serv­ice of summons on the plaintiff appellant would be no service. The further case pro­jected is that defendant No. 1 by practising fraud on the appellant obtained his signa­tures on some blank papers and also on vakalatnamas of partners. A representation is said to have made that these papers were required for conducting and defending some litigation in taxation matters. It is the case of the plaintiff that these power of attornies were later on used fraudulently in the suit where decree was obtained. This aspect of the matter would be adverted to again. The further case of the appellant is that defend­ant No. 2 as a Practising Advocate is a close friend of respondent No. 4. Both are prac­tising at Jammu and both belong to the same social organisation. It is stated that they were once upon a time working in the Cham­ber of Senior Advocate. The further case of the appellant is that defend­ant No. 2 as a Practising Advocate is a close friend of respondent No. 4. Both are prac­tising at Jammu and both belong to the same social organisation. It is stated that they were once upon a time working in the Cham­ber of Senior Advocate. It is accordingly sub­mitted that respondent No. 1 used one of the power of attornies fraudulent in the Court of Sub-Registrar Jammu where de­fendant No. 2 was engaged as a counsel. A copy of the vakalatnama was placed on the record as Annexure P/6 with the plaint. The further case is that the appellant never en­gaged any counsel by the name of Rashpal Singh. This counsel was said to have been engaged by defendant No. 1, so that he could put in appearance on behalf of the appel­lant. The appellant submits that he had never engaged Rashpal Singh and/or de­fendant No. 2 to conduct his case. All this as per the appellant was a fraudulent trans­action with a view to obtain a consent de­cree. In para 4 of the plaint it is submitted that the vakalatnama which was earlier ob­tained for using in the taxation Courts was utilised. A compromise deed is also said to have been brought into existence. This was a forged and false document which was brought into existence contrary to law. This compromise was utilized and filed in the Court on 2-12-1983. This date was the sec­ond date fixed by the trial Court. This com­promise led to passing of the consent de­cree on 2-12-1983. It is submitted that this decree passed on 2-12-1983 was obtained by using documents which were fraudulently brought into existence. In a nutshell it is stated that respondent No. 1 had been ob­taining signatures of the appellant on some blank papers and sometimes of the partners. These were used in the civil suit. A counsel was engaged on behalf of the appellant. It is in this manner fraud was practised on the appellant. It is with a view to substantiate the plea of fraud some further reasoning has been introduced. This would become appar­ent from the perusal of paragraph 15 of the plaint. These were used in the civil suit. A counsel was engaged on behalf of the appellant. It is in this manner fraud was practised on the appellant. It is with a view to substantiate the plea of fraud some further reasoning has been introduced. This would become appar­ent from the perusal of paragraph 15 of the plaint. It is stated that the execution of the mortgage deed and later on filing of the civil suit was part of a set design and ultimate purpose has been achieved by practising fraud, misrepresentation and a consent de­cree has been obtained on the basis of the forged documents. It is further submitted that the trial Court did not comply with the provisions of 0. 34 of the C.P.C. It is sub­mitted that if a decree for redemption of mortgage was to be passed then provisions of 0. 34 of the C.P.C. were required to be complied with. This was not done. It is fur­ther stated that if mortgage money and the rent amount was to be adjusted then this could be done by resorting to the provisions of Restitution of Mortgaged Property Act of 1976 (hereinafter referred to as 1976 Act). It is also stated that in the face of the statutory provision i.e. Act of 1976, Civil Courts had no jurisdiction in the matter. Respond­ent No. 1 it is pleaded should have ap­proached the Tribunal under the Act of 1976. This having not been done, it is stated that the decree which is basically ex parte cannot be given effect to. It is stated that it is not only ex parte but it is also without jurisdiction as the Civil Court had no juris­diction in the matter. It is accordingly sub­mitted that this compromise decree would confer no right on defendant No. 1. The ba­sic argument thus urged is that the decree was obtained by practising fraud in the mat­ter as stated above and this is required to be declared null and void. 4. Both the defendants filed separate written statements. 5. Stand taken by respondent No. 1 be noticed. 6. Some preliminary objections were taken to the maintainability of the suit. It was stated that on account of the Bar cre­ated under Section 47 and Order 21 of the Code, the suit was not maintainable. It was also urged that the suit is barred by limita­tion. 5. Stand taken by respondent No. 1 be noticed. 6. Some preliminary objections were taken to the maintainability of the suit. It was stated that on account of the Bar cre­ated under Section 47 and Order 21 of the Code, the suit was not maintainable. It was also urged that the suit is barred by limita­tion. This is said to have been filed after six years from the date of passing of the de­cree. The further plea taken was that the appellant had approached the executing Court where an objection was taken that the decree sought to be executed against him, could not be executed. It was accordingly pleaded that the two remedies could not be simultaneously availed of by the plaintiff i.e. he could not resort to filing of a civil suit and also object to the execution proceed­ings. It was stated that the appellant was never inducted as a tenant in the shop. As per defendant No. 1 the correct position is that the shop in question along with it up­per storey had been leased out by him in favour of White Hotel. This was in the year 1971. The proprietor was Smt. Susheela Gupta W/o defendant No. 1. Later on Smt. Susheela Gupta joined the appellant and other partners in the business. The busi­ness was started in the shop under the name and style of Yog Raj Raj Kumar. This as per this defendant was done right from the be­ginning and not from a latter date as alleged by the appellant. The allegation that re­spondent No. 1 had introduced his wife as a partner and instead of getting the rent deed, partnership deed was executed, was denied. This was said to be a plea which is false and frivolous and also afterthought. It was spe­cifically pleaded that appellant was never in­ducted as a tenant by defendant No. 1. The plea of the appellant as taken in para 4 of the plaint that in fact a tenancy was created in his favour was specifically denied. It was further stated that partnership was dis­solved by executing a deed of dissolution. It is stated that after the partnership came to be dissolved the position of the appellant was that of a mortgage and not of a tenant. It was further stated that partnership was dis­solved by executing a deed of dissolution. It is stated that after the partnership came to be dissolved the position of the appellant was that of a mortgage and not of a tenant. The mortgage deed as per this defendant, is a genuine document; no fraud or misrepre­sentation of any kind whatsoever was ever perpetuated on the appellant. The allega­tions levelled in this regard were said to be without any basis. In para 8 of the written statement, respondent No. 1 has taken a plea that he was in need of a sum of Rs. 10.000/-. He contacted the appellant. The plaintiff took advantage of this need pro­jected by him. He was ready and willing to grant the loan but he wanted a collateral security in this regard. It was in this state of helplessness the defendant No. 1 is said to have obtained the loan and by way of col­lateral security mortgaged the shop with pos­session with the appellant. It was respond­ent No. 1 who had prevailed upon his wife to dissolve the partnership so that the loan could be secured. It is stated that even though the respondent was in need of Rs. 10,000/- the appellant was willing to give only Rs. 5.000/-. With a view to project that he was in financial difficulties, it is submit­ted that in those days he was not having much professional income. He required the money for carrying out repairs of the im­movable properties owned by him. It was in these circumstances, the property was mort­gaged. The plea that signature on blank papers and on power of attornies were ob­tained from the appellant is denied. So far as the valuation is concerned it is submit­ted that the same was properly affixed. It is also stated that the appellant was properly served. He had engaged a counsel. A com­promise decree was passed in the presence of his counsel. The appellant had full knowl­edge regarding this. The plea that he had not engaged respondent No. 2 or Rashpal Singh Advocate as Advocates and further mala fides attributed to him has also been denied. It is stated that no fraud was prac­tised on the appellant either by respondent No. 1 or by respondent No. 2 or by Rashpal Singh Advocate. It is stated that respond­ent No. 2 was specifically engaged by the plaintiff. It is stated that no fraud was prac­tised on the appellant either by respondent No. 1 or by respondent No. 2 or by Rashpal Singh Advocate. It is stated that respond­ent No. 2 was specifically engaged by the plaintiff. The plaintiff himself appeared in the witness-box when a compromise deed came to be filed. He remained in the Court on 2-12-1983. One Subash Gupta had rep­resented respondent No. 1. The compromise was entered into voluntarily and the decree on the basis of this compromise was prop­erly passed. 7. The defendant No. 2 also filed his writ­ten statement. As this defendant was not concerned with the assertions made in para­graphs 1 to 9 of the plaint he has not of­fered any comments with regard to these paragraphs. However with regard to the paragraphs concerning him i.e. paragraphs 11, 12, 13 and 14 he has denied the case as projected by the appellant. The respondent No. 2 submits that he has good relations with respondent No. 1 but this cannot be taken to mean that he would go to the ex­tent of entering into fraudulent transactions at the asking of respondent No. 1. The fact that they were once upon a time working in the Chambers of the some senior counsel for some time has not been denied. It is how­ever admitted that the appellant/plaintiff had full knowledge of the suit. He had en­gaged this defendant as a counsel to appear and defend them in the suit. The power of attorney was also given to him. The story as projected that the documents which were later on used as compromise deed i.e. power of attornies filed in the suit were got signed much earlier by respondent No. 1 and these were blank papers, is denied. This defend­ant accordingly submitted that the appel­lant came to him. He authorised him to en­ter into a compromise and no fraud was ever practised on the appellant. 8. The pleadings of the parties gave rise to the framing of issues. For facility of refer­ence these issues are reproduced below: 1. Whether the suit filed by the plaintiff is not maintainable under Section 47, Or­der 21 of the C.P.C.? OPD 2. Whether the suit of the plaintiff is barred by time? OPD 3. Whether the suit is not maintainable in this Court on account of execution pro­ceedings pending in the executing Court? OPD 4. Whether the suit filed by the plaintiff is not maintainable under Section 47, Or­der 21 of the C.P.C.? OPD 2. Whether the suit of the plaintiff is barred by time? OPD 3. Whether the suit is not maintainable in this Court on account of execution pro­ceedings pending in the executing Court? OPD 4. Whether the mortgage deed executed on 31st March, 1973 was void and having been got executed by fraud and misrepre­sentation? OPP 5. Whether the defendant No. 1 played fraud on the plaintiff and obtained his sig­natures on some blank papers and vakalatnama which was later on used for composition of the suit? OPP 6. Whether the compromise deed and the collusive decree passed by the Court of Sub-Registrar Jammu dated 2-11-1983 is null and void, without jurisdiction, inoperative, unexecutable and not binding on the plain­tiff? OPP 7. Relief? 9. After this evidence was led. The evi­dence which has come on the record be also examined in brief. 10. The appellant Yog Raj appeared in the witness-box. What is stated by him is more or less the same was projected by him in the plaint. When he appeared in the wit­ness-box, he stated that he was inducted as a tenant in the shop premises as de­scribed in para 1 of the plaint. The monthly rent of this was fixed at Rs. 300/-. It is stated that defendant No. 1 got a partnership deed executed from him. This was on the plea that this would help in saving income-tax .08% share is said to have been assigned to the wife of defendant No. 1. Respondent No. 1 used to charge rent. It is further stated by him that in the year 1973 the respondent No. 1 again approached him and got a mort­gage deed executed. In this, there was a re­cital that the mortgage is for a sum of Rs. 5000/-. It is stated that notwithstanding the execution of the mortgage deed the shop premises continued to be under his tenancy. For this rent was regularly paid. It was fur­ther stated by him that respondent No. 1 had obtained the signatures on several blank papers. Signatures were also obtained on blank power of attornies. These signatures were obtained on a representation that these papers are to be used for settlement of cases pending before the Property Tax Uuthorities. For this rent was regularly paid. It was fur­ther stated by him that respondent No. 1 had obtained the signatures on several blank papers. Signatures were also obtained on blank power of attornies. These signatures were obtained on a representation that these papers are to be used for settlement of cases pending before the Property Tax Uuthorities. In the Court it was further stated that he did incur some amount in connection with the litigation. He stated that he did not en­gage Mohan Lal Gupta in any case. He fur­ther stated that he did not know Rashpal Singh Advocate and that no power of attor­ney was executed in favour of Mohan Lal Gupta. This counsel was never authorized to appear in any Court. He further stated that he did not appear in the Court of Sub-Registrar which is said to have passed the compromise decree on 2-12-1983. He reit­erated that he had not entered into any com­promise and that his signatures were ob­tained by respondent No. 1 on blank papers and blank power of attornies. He stated that he came to know about this compromise decree in the month of October, 1989. The statement of this witness was recorded in January, 1990. The exact words used by him in this regard are that he came to acquire the knowledge last year. Whatever he has stated has been stated after he consulted his counsel and filed the suit in question. 11 . The appellant was cross-examined. 12. In cross-examination he stated that he is graduate. He further stated that one Ram Krishan Dogra Advocate had executed a partnership deed and also a dissolution deed. He-stated that he was not subject to assessment of any property tax. He was unable to indicate as to how many blank papers he had signed. He stated that he had signed blank papers in the year 1971 and also 1973. The power of attorney was said to be in Urdu and was of normal size. At that time he did not notice the name of any counsel having been recorded on the vakalatnama. This vakalatnama was not stamped. It was respondent No. 1 who had brought the power or attorney and he had signed the same in the house of respondent No. 1. The date on which this was done it is stated could not be recollected by him. This vakalatnama was not stamped. It was respondent No. 1 who had brought the power or attorney and he had signed the same in the house of respondent No. 1. The date on which this was done it is stated could not be recollected by him. This was said to have been signed in the evening. He had gone to his house also. It is stated that on that date, respondent No. 1 was alone in the house. Some blank papers were also got signed from him. He further stated that all these blank papers were signed by him in the evening only. The witness stated that he knew Mohan Lal Gupta. His sister is married to the Swtanter Mahajan. Mohan Lal Guptas brother is said to be married to Swtanter Lals sister. By this assertion some relationship is sought to be brought out be­tween the appellant and Mohan Lal Gupta. The marriages are said to have been solem­nized much earlier i.e. earlier to the appel­lant signing the documents in question. The appellant stated that he never attended the Court in connection with any criminal case. He identified his signatures on the compro­mise deed and also on his vakalatnama. These were dated 2-11-1983 and 24-11-1983. These were exhibited as Ex. PW D/l and Ex. PW D/2. With regard to signing of these blank papers he stated that he had lot mentioned this fact to anyone else. He had not made any complaint regarding non-issuance of receipts for the rent paid. This witness stated that the redemption money of Rs. 5000/- was deposited in the Court. the last lines in the cross-examination are to the effect that : "I do not remember the mode of payment of Rs. 5000/- but it is a fact that payment was made in the Court." 13. The respondent No. 1 submits that this amount of Rs. 5000/- referring to in the written statement is with regard to the payment which was made in the appellant when the mortgage deed was executed. 14. The other witness who appeared in the witness-box on behalf of the plaintiff is one D. K. Gupta. This witness has a shop adjacent to the shop in question. He stated that the appellant was inducted as tenant and he has been paying rent to respondent No. 1 in his presence. 14. The other witness who appeared in the witness-box on behalf of the plaintiff is one D. K. Gupta. This witness has a shop adjacent to the shop in question. He stated that the appellant was inducted as tenant and he has been paying rent to respondent No. 1 in his presence. Respondent No. 1 used to receive the same but would not issue any receipt. In cross-examination he admitted that he had filed a suit against respondent No. 1 in the Court of Sub-Judge (CJM) Jammu. This was filed for declaration to the effect that he is a tenant under defendant No. 1. Respondent No. 1 had also filed a suit against the brother of this witness. This suit is also with regard to the shop which is in possession of this witness. This witness re­iterated that appellant was paying rent to respondent No, 1 in his presence. First time this rent was paid about one and a half year ago. 15. Tara Chand is another witness, who has appeared in the witness-box. He stated-that the appellant is in possession of the shop as a tenant. He further stated that he was also a tenant in the adjacent shop be­longing to respondent No. 1. Respondent No. 1 has got executed a partnership deed from him in respect of the shop which was leased out to him. The partnership deed remained in force for several years and thereafter a mortgage deed was got executed from him in the year 1973. What is sought to be pro­jected from this statement is that such was the regular mode in which tenancy was be­ing created by respondent No. 1. This wit-ness stated that the firm of which this wit­ness was a partner is still carrying on its business. He could not state whether ap­pellant had paid rent to respondent No. 1. 16. On cross-examination this witness stated that respondent No. 1 had filed a suit against him. This suit is said to be pending in a Civil Court at Jammu. This suit is for possession filed on the basis of redemption of mortgage. This is being contested on the plea that he was never inducted into the shop as a mortgagee but was a tenant thereof. This witness stated that he has passed intermediate examination with sci­ence as one of the subjects. He stated that he does know Urdu. This suit is for possession filed on the basis of redemption of mortgage. This is being contested on the plea that he was never inducted into the shop as a mortgagee but was a tenant thereof. This witness stated that he has passed intermediate examination with sci­ence as one of the subjects. He stated that he does know Urdu. The amount of mort­gage is said to be Rs. 5000/-. This witness stated that he never enquired from the ap­pellant about the execution of a mortgage. He further stated that he never asked for issuance of rent receipts, because he was a partner. The defendant has been accepting rent from the appellant in his presence. With regard to the payment made otherwise in his presence this witness was unable to in­dicate the mode of payment. 17. Ashok Kumar, brother of the appel­lant is another witness. He had taken a shop on lease in the same year. When this shop was taken on lease, he had consulted this witness. This witness states that he had taken some premises on rent and used to consult the appellant in the matter of en­tering into such transaction. The respond­ent No. 1 used to come to the premises of the appellant and would collect rent from him. He used to be present on these occa­sions. This witness stated that respondent No. 1 would obtain signatures from the ap­pellant in his presence. It is stated that his brother had signed on some notice and also on blank papers at the asking of respond­ent No 1. The signatures were obtained on the pretext that these papers were required before the Property Tax Department. In cross-examination this witness stated that he had never signed the blank papers but he had seen appellant signing on blank pa­pers. These signatures must have been ob­tained on 20/25 papers in his presence during the last 18 years. On each occasion he would got signatures on 4/5 papers. The respondent No. 1 would represent that the signatures are required for settling property tax matters pending against respondent No. 1. Sometimes these signatures used to be obtained on blank papers but sometimes these were being obtained on written papers also. He submits that his brother had not engaged any counsel. 18. Ram Krishan Dogra was the Income Tax Advisor of his brother. Sometimes these signatures used to be obtained on blank papers but sometimes these were being obtained on written papers also. He submits that his brother had not engaged any counsel. 18. Ram Krishan Dogra was the Income Tax Advisor of his brother. This witness stated that defendant No. 1 has not con­tested any case on his behalf or on behalf of his brother before the Income Tax Authori­ties. One Telephone Inspector has also ap­peared in the witness-box. He has testified to the effect that telephone connection No. 5185 was installed in the premises. This was in the name of Yog Raj-Raj Kumar cloth merchants. This telephone connection was installed on 7-5-1995 and has continued to be in the name of aforesaid firm. Another telephone connection No. 4485 was installed in the name of said firm. This was so in­stalled on 18-3-1995. This witness was not cross-examined. 19. Sansar Chand, Revenue Clerk of the Electricity Department brought the relevant record with him. This witness was not also cross-examined. 20. M. L. Sharma, Labour Inspector of the Labour Deptt. was also examined. This witness has testified to the effect that there was a partnership concern carrying on busi­ness under the name and style of Yog Raj-Raj Kumar. 21. Raj Kumar is another witness, who has appeared on behalf of the appellant. He stated that he was a partner with the appel­lant. The partnership business was being carried on in the shop belonging to respond­ent No. 1. This shop was on rent. This part­nership between this witness continued from 1970 to 1982-83. The partnership business dealt with wholesale of cloth. The name of the firm was Yog Raj-Raj Kumar. The monthly rent of the tenanted premises was fixed at Rs. 3000/-The respondent No. 1 would personally come to receive the rent. They were having good relations. The re­spondent No. 1 would sometime get signa­tures of the appellant on blank papers and also on Court papers. These used to be writ­ten in English and Urdu also. 22. This witness was cross-examined. 23. On cross-examination, it was stated by him that the appellant would pay rent in the first half of the month. This witness was unable to recollect the exact date. Till he was partner in the firm, respondent No. 1 used to accept the rent in his presence. 22. This witness was cross-examined. 23. On cross-examination, it was stated by him that the appellant would pay rent in the first half of the month. This witness was unable to recollect the exact date. Till he was partner in the firm, respondent No. 1 used to accept the rent in his presence. First |time respondent No. 1 received rent in the month of November, 1982 or January, 1983. The respondent No. 1 would come to the shop every month and collect the rent. The shop was taken on rent somewhere in the year 1969 or 1970. As to whether any writ­ten agreement or lease deed was obtained or not, this witness was unable to recollect. As long as partnership continued with this witness, the respondent No. 1 would come and get signature of appellant on some pa­pers. This witness stated that he had never felt any urge to know as to why signatures of appellant are being obtained on blank pa­pers. The appellant is said to be distantly related to him the relationship being that of uncle and nephew. The partnership ac­counts used to be prepared by the accountant. This witness was not conversant with maintaining of accounts. He never checked the accounts during the subsistence of part­nership. The account books used to remain with the accountant. This witness was un­able to point out as to whether in any ac­count books prepared by the aforementioned firm, mention was being made of any rent being paid to respondent No. 1. 24. The oral evidence led by defendant No. 1 be now noticed. 25. The defendant No. 1 appeared in the witness-box. He stated that a valid decree was passed by the Munsiff (Sub-Registrar) Jammu. There was absolutely no attempt on his part to obtain any power of attorney by fraud or misrepresentation. He stated that Yog Raj appellant was pursuing the liti­gation of his own. He had engaged Mohan Lal Gupta, Advocate who was prosecuting the litigation on his behalf. Another coun­sel Subash Gupta was also engaged. In the suit a compromise was arrived at. On the basis of this compromise, a compromise decree was passed. This decree came to be passed in the suit titled Kuldip Raj v. Yog Raj file No. 515/Civil. This suit was filed on 3-11-1983. It was decided on 2-12-1983. The compromise deed was duly identified by this witness. In the suit a compromise was arrived at. On the basis of this compromise, a compromise decree was passed. This decree came to be passed in the suit titled Kuldip Raj v. Yog Raj file No. 515/Civil. This suit was filed on 3-11-1983. It was decided on 2-12-1983. The compromise deed was duly identified by this witness. The fact that the contents thereof were read over to Yog Raj and that he had argued the same without any coer­cion or without misrepresentation of any fact to him, was testified by this witness. He stated that appellant Yog Raj had signed the power of attornies himself and he had got them filed in the Court. He saw the compromise deed and stated that this is true copy of the original. The respondent No. 1 stated that he is a practising Advocate and had practised both on civil and criminal side. He stated that he had never practised on taxa­tion side. The allegations levelled in the plaint that this witness has by misrepretation and by practising fraud had obtained signatures on memo blank papers or documents was denied. He stated that he never obtained signatures on blank pa­pers and as a matter of fact he was not in a position which could enable him to obtain signatures on these documents in the man­ner suggested by the plaintiff-appellant. 26. This witness was cross-examined. 27. In cross-examination, he stated that in addition to the shop in question, he has another shop also in Raghunath Bazar. He stated that in the shop in dispute there were 5 to 6 partners. The wife of this witness. Yog Raj and also mother of Yog Raj were part­ners. The shop was under the tenancy of his wife. This partnership continued up to 31-3-1973. The tenancy also continued till that period. A deed creating tenancy was executed and this shop was also a part thereof. This was for a period of 11 months. The appellant had stated that he would give him some money on loan but he insisted that this witness should furnish a collat­eral security. The relationship of landlord and tenant between respondent No. 1 and his wife was brought to an end andshe va­cated the premises. At that point of time, the rent was Rs. 250/-. When the partner­ship came to an end Yog Raj came into pos­session as a mortgagee. The relationship of landlord and tenant between respondent No. 1 and his wife was brought to an end andshe va­cated the premises. At that point of time, the rent was Rs. 250/-. When the partner­ship came to an end Yog Raj came into pos­session as a mortgagee. After that Yog Raj continued to carry on the partnership busi­ness. The wife of respondent No. 1 was how­ever not partner. The business which was being carried on was that of wholesale of cloth. The witness stated that he had ob­tained possession of the shop from his wife on 31-3-1972. After obtaining possession, a mortgage deed was executed and the pos­session was also given to Yog Raj. This wit­ness stated that he has been practising since 1964. The total rental income from his prop­erty would be around five to six hundred. He was having nominal income from his le­gal practice. After 1976, the shop contin­ued to remain with Yog Raj on mortgage. When this witness made a request that he should be given possession and that he is ready and willing to get the mortgage re-deemed Yog Raj asked for some extra con­sideration. The plea taken was that he had spent some amount on repairs of the shop. There was difference of opinion as to the amount which was so spent. Thereafter, there was a change in law. This was to the effect that if any improvement had been made and if the mortgage had subsisted for a period often years, then nothing would be paid for any improvement made on which expenditure may have been incurred by the mortgage and that it would not be neces­sary to pay the mortgage money. According to the opinion of the witness Yog Raj could get the expenses incurred for making im­provement but he was unable to point out the law which was referred to by him in the earlier part of his statement. The witness also had a feeling that even in this matter there would be some difference and this may prolong his agony. This as per the witness was his personal opinion. The law which restricted the right of the mortgagee to not to claim expenses for improvement made or for mortgage money was said to be Restitu­tion of Mortgaged Properties Act. As to when this Act was enforced the witness stated that he was unable to recollect. This as per the witness was his personal opinion. The law which restricted the right of the mortgagee to not to claim expenses for improvement made or for mortgage money was said to be Restitu­tion of Mortgaged Properties Act. As to when this Act was enforced the witness stated that he was unable to recollect. Later on he stated that most probably this was enforced in 1976. He stated that he did not file the suit under the aforementioned Act as after 1981, the Act was not extended. It was precisely for this reason that a civil suit was filed. He had paid the Court-fees which he was re­quired to be paid in this regard. The plead­ings in the suit were taken note of. What­ever opinion was forward in the matter of paying Court-fees was adopted and Court-fees was paid accordingly. The witness also had an impression that in case the appel­lant had objected to the trial of suit by the Civil Court then there was possibility of the case being transferred to the Tribunal. This was on the ground that the Court of Munsiff (Sub-Registrar) would have no jurisdiction to hear the suit. The suggestion made to him that he had deliberately filed a suit in a wrong forum was denied by him. He stated that he had not given any notice before fil­ing of the suit. With regard to the terms of the agrement which was to be the basis of compromise decree the requisite negotia­tions took place in the Court premises. This talk started one day earlier to the compro­mise. As per this witness Yog Raj had con­sulted his counsel. After consulting his counsel, the compromise deed in question was prepared. The agreement was entered into voluntarily and it was an act of free vo­lition. This witness stated that firstly a talk took place in his house. Yog Raj is said to have come to his house. As the Court time was over, the witness was further cross-ex­amined on 13-9-1995. He stated that be­fore the compromise attained a final shape, Yog Raj had put in appearance i.e. on the date of hearing. This witness stated that he clearly recollects that Yog Rajs counsel was present. He was also himself present. As to whether he was himself present or not, the witness was unable to recollect. He stated that be­fore the compromise attained a final shape, Yog Raj had put in appearance i.e. on the date of hearing. This witness stated that he clearly recollects that Yog Rajs counsel was present. He was also himself present. As to whether he was himself present or not, the witness was unable to recollect. He was unable to recollect as to whether earlier to the date on which compromise was arrived at. Yog Raj was present in the Court or not. This witness was unable to recollect as to whether any process was issued for the ap­pearance of Yog Raj. However, he refreshed his memory by looking at the report of the process servers. This report was to the ef­fect that he had gone to the shop of Yog Raj and Yog Raj was not present there. This wit­ness, however, stated that he had not given any opinion regarding filing of the suit personally to Yog Raj. When the talk was on for getting back the possession, then Yog Raj had put a proposal that he should be al­lowed to retain the possession of the shop for a period of seven to eight years. Later on it was agreed that he could retain posses­sion for a period of five years. This condi­tion was accordingly incorporated in the compromise deed. Yog Raj had expressed his consent in this regard. This consent was given after due consultation with his coun­sel. The agreement in question was got typed by Yog Raj. This witness was, however present. This compromise deed was got typed from a typist in the Court premises. The statements of counsel for the parties were recorded in the Court. The statements of parties were not, however, recorded. The compromise deed was filed in the Court and the statements of the counsel were recorded on that basis. The counsel never asked the parties to make any statements. Copy of the plaint was made available to Yog Raj on the date when he had put in appearance. The witness stated that he did not have good relation with Yog Raj. Yog Raj had made some improvement but he never asked for the costs of this improvement in the pres­ence of any third person. The cost of improvement was not in fact demanded from this witness. These improvements were qualities flooring done. The witness stated that he did not have good relation with Yog Raj. Yog Raj had made some improvement but he never asked for the costs of this improvement in the pres­ence of any third person. The cost of improvement was not in fact demanded from this witness. These improvements were qualities flooring done. These repairs are said to have been carried out by Yog Raj. These improvements were not carried out with the consent of this witness. This wit­ness stated that he had never authorised Yog Raj to carry out the repairs or to change the flooring, nor had he seen such improve­ments being carried out. This witness stated that it was Yog Raj who was saying that he had carried on some repairs. The residen­tial house of this witness is at a distance of 200/300 yards from the shop. This is in a different street. It is at this place the wit­ness has been doing law practice since 1976. If this witness was to go from his house to the Court, then the shop does not normally fall in the way. The witness stated that for going to Court, he goes by road via Purani Mandi. This is because this distance from his house to the Court is shorter. So far as the rooms above the shop are concerned, there is a hotel. This is being run by the wife of this witness. This witness stated that he is not an attorney of his wife and that he does not interfere with her work. From his memory this witness, stated that he has never acted as an attorney holder for and behalf of his wife. A suggestion was made to this witness. This was to the effect that be­fore filing the suit in the Court of Munsiff (Sub-Registrar) he had been going to the shop of Yog Raj two or three times in a week. They were having cordial relation. The sug­gestion made to him that he had got signa­tures on a vakalatnama and some other papers indicating that these were required for settling some dispute regarding property tax and income-tax was denied by him. This witness stated that even the shop which is located in Raghunath Bazar is being run by his wife through their son Naveen Jandial. He stated that Choudhary Inder Dass Grover was never a tenant of the shop in question. This witness stated that even the shop which is located in Raghunath Bazar is being run by his wife through their son Naveen Jandial. He stated that Choudhary Inder Dass Grover was never a tenant of the shop in question. The possession of this shop was obtained by filing a civil suit and by executing the decree in question. As to what was the ground for seeking eviction, this witness was unable to recollect. He later on stated that probably he got it vacated on account of his personal necessity. He is definite that the premises was got vacated on the ground that this was personally required by him. One Ashok Kumar was said to be a tenant of first floor of the shop located in Raghunath Bazar. As to how much rent Ashok Kumar is paying was a factor which this witness was unable to recollect. For non-payment of rent a civil suit was filed in the year 1984 or 1985. In that suit also, Ashok Kumar had entered into a compromise and a period of six years was given to him to vacate the shop. This witness was asked as to after how many dates compromise was entered into between Ashok Kumar and the landlord. The witness was unable to give a satisfactory reply in this regard. Ashok Kumar is said to have filed a suit on the same pleas which have been taken in the present suit. The pleas taken by him were said to be false. It was stated that Ashok Kumar had appeared in the Court and the compromise decree was obtained. He had made a statement in the Court of his own free volition. Certified copy of the suit is on the file. This witness stated that a concern by the name of Medico Chem­ist is not a-tenant but a firm through Tara Chand is in possession of the shop. The shop was now in possession of Tara Chand. Medico Chemist has also filed a civil suit wherein a declaration is sought to the effect that he is a tenant under this witness and that he should not be forcibly evicted therefrom. The witness stated that he has an orchard at Talab Tillo. Some residents in the neighbourhood wanted to pass dirty water through it. Against them, some civil suits have been filed. In a building known as White Hotel Building, Dr. The witness stated that he has an orchard at Talab Tillo. Some residents in the neighbourhood wanted to pass dirty water through it. Against them, some civil suits have been filed. In a building known as White Hotel Building, Dr. Mohan Lal Mengi is running a clinic. Against him, a suit for eviction has been filed by the wife of the plaintiff. In that suit also compromise has been arrived at between Dr. M. L. Mengi and the wife of this witness. In that suit this witness was appearing on behalf of his wife. This witness has stated that he did get the power of attorney printed in Urdu. However, this power of attorney is not available with him now. As to what were the contents of power of attorney so written in Urdu this witness was unable to point out. The power of attorney which was there on the file of civil suit in which compromise decree was passed and which decree is subject matter of challenge was seen by this witness. The witness stated that this power of attorney was not got printed by him. This witness was also unable to point out as to whether the contents of two power of attornies are the same or not. The power of attorney which was so used in the suit was marked as Ex.PW/A. The power of attornies as per this witness which were got printed by him con­tained his name also. The mortgage deed which was executed by Yog Raj was written by Tara Chand. The draft thereof was writ­ten by a deed writer. This witness was un­able to recollect as to whether this deed was entered into on the same date when this shop was given on mortgage the witness stated that he was not having very good prac­tice. Even rental income was not sufficient. Even the house which was constructed by this witness was constructed in phases. For this money was required. The ground floor was constructed in second phase in the year 1972 or 1974. This consisted of two rooms and a verandah was constructed. In the ear­lier phase basement and one room was con­structed. The witness stated that he does not recollect as to whether he had got the building plan approved from the Municipal­ity. For this money was required. The ground floor was constructed in second phase in the year 1972 or 1974. This consisted of two rooms and a verandah was constructed. In the ear­lier phase basement and one room was con­structed. The witness stated that he does not recollect as to whether he had got the building plan approved from the Municipal­ity. When the witness was asked as to whether he had obtained loan from any other source, the witness stated that he had not obtained any loan from any quarter. A sug­gestion was made to him that the decree had been obtained by him through fraud but the same was denied. The suit in which a compromise decree was passed in the suit a suggestion was made this Yog Raj never appeared in the Court. This suggestion .was denied. The further suggestion made to him that no compromise deed was written was also denied. The other suggestion made to him that some blank papers were got signed and this included a vakalatnama also and that this was done by misrepresentation and practising fraud, was also denied. The suggestion that signatures on blank papers were obtained for entering into some arrangement with defendant No. 2 was also denied. This witness stated that he was known to Vishnu Saroop, Advocate who was present in the Court. The witness stated that he is not aware of any relationship between Yog Raj and Vishnu Saroop. This witness further stated that he has no knowledge whether Vishnu Saroop was practising in the year 1982. He however, stated that he had see this person carrying on his furniture business in his shop which is located in Mohalla Paharian. This witness stated that he does not carry on business in any shop. He had practised in the chamber of late Ram Nath Balgotra as his junior. Defendant No. 2 has also stated his practice in the chamber Ram Nath Balgotra. No further question was put. 28. Shri Subash Chander Gupta Advo­cate appeared in the witness-box. He stated that he was retained as an Advocate by Yog Raj in a suit filed under the title Kuldip Raj v. Yog Raj before the Court of Sub-Registrar Munsiff Jammu in which the parties entered into a compromise. This suit was filed in the Court of Sub-Registrar. It bears No. 515/ Civil of 1983. In this suit a compromise was arrived at. This suit was filed in the Court of Sub-Registrar. It bears No. 515/ Civil of 1983. In this suit a compromise was arrived at. The compromise deed dated 2-12-1983 is there on the file No. 515/civil filed in the Court of Munsiff (Sub-Registrar) which was decided on 2-12-1983. This wit­ness stated that he had seen the original file and testified to the effect that he had appeared on behalf of Kuldip Raj. His sig­natures appeared on the same. He also tes­tified to the effect that signatures of both the sides existed on the file. Shri Yog Raj was represented by Shri Mohan Lal Gupta, Advocate. His signatures also appeared on the compromise deed. This witness stated that the parties had entered into a compro­mise voluntarily. The contents of the com­promise deed were not dictated by him. The compromise deed was presented by this wit­ness and by Mohan Lal Gupta, Advocate. The fact that parties had compromised was duly testified by this witness and also by Mohan Lal Gupta. The statements of these witnesses were recorded. The parties were present. On the basis of these statements, the learned Sub-Judge had decreed the suit. At that time Yog Raj appellant was present in the Court. The statements made by the counsel were available on the file of the civil suit. This witness was not cross-examined 29. Shri Mohan Lal Gupta is another witness who appeared on behalf of the de-fendants. He stated that he had been practising since the year 1983. He stated that he knew Yog Raj who was present in the Court. He stated that he was retained and engaged as a counsel by Yog Raj in civil suit No. 515/civil filed on 3-11-1983. The decision in this case was given on 2-12-1983. This was a suit between Kuldip Raj Gupta and Yog Raj. They were present in the Court. This witness stated in express terms that he was retained as counsel by Yog Raj. The power of attornies were also present on the file. These were seen by this witness. He testified to the fact that these are correct. The witness testified to the effect that vakalatnama was signed by Yog Raj out of his free volition and it is not to be made as an issue in this case. The parties had com­promised the suit. This deed was signed by this witness. These were seen by this witness. He testified to the fact that these are correct. The witness testified to the effect that vakalatnama was signed by Yog Raj out of his free volition and it is not to be made as an issue in this case. The parties had com­promised the suit. This deed was signed by this witness. He testified to the effect that this does bear his signatures and also the signatures of defendant. The appellant had signed the compromise of his free will. It was on the basis of this compromise, a state­ment was made in the Court. The copy of vakalatnama which was present on the file of this litigation was testified to be a correct copy of the original power of attorney. This was marked as Ex. DW/ML. The compro­mise deed contained the signatures of this witness which was marked as Ex. DW-ML/ 1. This witness stated that he had heard the statement and accepted the same as cor­rect. The statement of this witness was exhibited as Ex. DW-ML/2. He stated that Yog raj had not brought the Court summons When he came to him. He however, came to the Court once and handed over the power of attorney. This was a day earlier to the arriving of settlement which became the basis of compromise in the Court. He had come to engage him. Yog Raj had stated that the suit is pending in the Court of Sub-Reg­istrar Jammu. He gave him power of attor­ney. At that time, there was no talk regard­ing entering into compromise. At that time, the power of attorney bore the signatures of Rashpal Singh. Whatever blank space was there, was filled in this witness. Thakur Rashpal Singh had already signed the vakalatnama. A rough draft of the compro­mise deed was brought by Yog Raj to this witness. This rough draft as per this wit­ness was most probably brought on the same date on which compromise was en­tered into. This witness stated that he had cautioned Yog Raj to think about the conse­quences of entering into a compromise and only thereafter he should enter into a com­promise. This witness was unable to recol­lect as to whether he had seen the copy of plaint with Yog Raj. This witness had also cautioned Yog Raj that by entering into this compromise, he is likely to lose possession of the shop. This witness was unable to recol­lect as to whether he had seen the copy of plaint with Yog Raj. This witness had also cautioned Yog Raj that by entering into this compromise, he is likely to lose possession of the shop. This witness was unable to rec­ollect as to whether he had read the plaint or not. At the time when compromise deed was filed in the Court Yog Raj is said to be present in the Court. The compromise deed was filed by the counsel for the other side. The Court was of the opinion that the state­ments of advocates are required to be recorded. On this, statements of the counsel were recorded. A question was put to this witness as to whether at that point of time he had read the plaint or not. This witness was unable to recollect. This witness was unable to point out as to what was the pe­cuniary jurisdiction of Sub-Registrar, who decided the case. The witness stated that he must have asked Yog Raj about the na­ture of the suit. Before giving statement in the Court, he had come to know regarding the nature of litigation. The suit was for possession by way of redemption. This be­came apparent on seeing the plaint. Yog Raj had come to him for filing the compromise, but had not come to ask for any other opin­ion. He had not charged any fees. This is because Yog Raj is related to him. No other question was put to him. 30. The documents which have been placed on file of the trial Court may also be serialized below : 1. The partnership deed between vari­ous partners of the firm to which wife of re­spondent No. 1 is also a party is Exp./l. This deed of partnership is dated 15-4-1971. 2. Dissolution deed dated 12-4-1973 whereby the fact that wife of respondent No. 1 ceased to be a partner has been placed on the record as Exp./2. 3. The mortgage deed by which the shop in question was mortgaged in favour of ap­pellant Yog Raj and wherein it is specifi­cally mentioned that possession is being handed over to him is dated 31-3-1973. This is marked as Ex PW/3. 31. The other documents which are part of the record are the plaint in suit No. 515 instituted on 20-11-1983 . The summons issued in the aforementioned suit. This is marked as Ex PW/3. 31. The other documents which are part of the record are the plaint in suit No. 515 instituted on 20-11-1983 . The summons issued in the aforementioned suit. The power of attorney which was filed by Yog Raj in the aforementioned suit which bears the sig­natures of appellant Yog Raj and two Advo­cates namely Rashpal Singh and Mohan Lal Gupta which is marked as Ex. PW/5. The compromise deed in the aforementioned suit which is dated 2-12-1983 is marked as Exp/ 7. Judgment and decree passed in the afore­mentioned suit is also on the record. 32. From the perusal of evidence which has come on the record it becomes appar­ent : (i) that the plaintiff-appellant admits that he was a signatory to the mortgage deed. (ii) that he had received consideration of sum of Rs. 5000/-. (iii) that he was inducted in the shop premises in pursuance of the compromise. (iv) that the plea taken by him that he was paying rent but receipts were not be­ing issued does not stand established be­cause in the books of account there is no entry that rent was being paid to respond­ent No. 1. This would have been the best piece of evidence. As per the statements of appellants witnesses the books of account were being prepared and this was being done by an Accountant. All that has been stated by these witnesses and by the ap­pellant is that rent was being paid, but re­ceipts were not being issued. As indicated above, best piece of evidence would have been some entry in the account books that is missing. Therefore, the story regarding payment of rent and non issuance of receipts is a story which has no legs to stand. (v) that the story of the respondents seek­ing signature of appellant on blank papers and on vakalatnamas has not been substan­tiated. The statement of the plaintiff-appel­lant is to the effect that these blank papers used to be got singed from him when he used to visit the houses of respondent in the evening. His witnesses who have appeared in the witness box have said to the con­trary. Their statements are that the docu­ments were being got signed in the shop in question. This was happening for a suffi­ciently long period. As to the number of blank papers which were got signed, there is inconsistency. His witnesses who have appeared in the witness box have said to the con­trary. Their statements are that the docu­ments were being got signed in the shop in question. This was happening for a suffi­ciently long period. As to the number of blank papers which were got signed, there is inconsistency. The story that blank pa­pers and vakalatnamas were got signed be­cause these were required for some prop­erty tax matter stands belied because the appellant was not having any litigation with regard to property tax matter and the state­ment of respondent No. 1 is categoric that he is practising only on civil and criminal side and has never conducted any litigation before the authorities making assessment of property tax. (vi) that the counsel who had appeard for the plaintiff-appellant namely Mohan Lal Gupta is related to the plaintiff. He has stated in categorical terms that a compro­mise deed was executed by the parties out of their free volition. The appellant was present in the Court. It was at his instruc­tions, the document in question was executed and was filed in the Court. (vii) that the Court proceedings indicated the presence of the parties. 33. The above conclusions have been recorded as these are relevant for the just decision to be given on all the issues. 34. Before examining the findings which stand recorded by the trial Court, it would be apt to clarify two legal issues. These are : i/ As to what value is to be attached to the observations made in the Court proceed­ings; and ii/ As to what are the parameters within which the plea of fraud and mis-represen­tation is to be founded and examined. 35. So far as the first point is concerned, the law is well settled. Proceedings as recorded in the Court are to be considered sacrosanct. If somebody choses to express a doubt in this regard, then the appropriate course is to go before the very Court which has recorded these proceedings. Once pro­ceedings are recorded and they attain final­ity then a different conclusion is not be ar­rived at. In this regard, it would be apt to refer to a recent decision of the Supreme Court of India in the case of D.P. Chadha v. Triyugi Narain Mishra (2001) 2 SCC 221 : (AIR 2001 SC 457). Once pro­ceedings are recorded and they attain final­ity then a different conclusion is not be ar­rived at. In this regard, it would be apt to refer to a recent decision of the Supreme Court of India in the case of D.P. Chadha v. Triyugi Narain Mishra (2001) 2 SCC 221 : (AIR 2001 SC 457). What was said in para­graphs 18 and 19 of the judgment is being reproduced below : "18. The record of the proceedings made by the Court is sacrosanct. The correctness thereof cannot be doubted merely for ask­ing. In State of Maharashtra v. Ramdas Shrinivas Nayak (AIR 1982 SC 1249), this Court has held (para 4) : The Judges record was conclusive. Nei­ther lawyer nor litigant may claim to con­tradict it, except before the Judge him­self, but nowhere else. The Court could not launch into inquiry as to what tran­spired in the High Court, their judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The prin­ciple is well settled that statements of facts as to what transpired at the hearing, re­corded in the judgment of the Court, are con­clusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly re­corded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the atten­tion of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there." 19. Again in Bhagwant Prasad v. Delhi State Mineral Development Corpn. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there." 19. Again in Bhagwant Prasad v. Delhi State Mineral Development Corpn. AIR 1990 SC 371, the Court has held (Para 5): "It is now settled law that the statement of facts recorded by a Court or quasi judi­cial tribunal in its proceedings as regards the matters which transpired during the hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum. It may be open to a party to bring such statement to the notice of the Court /tribunal and to have it deleted or amended. It is not, therefore, open to the parties or the counsel to say that the proceedings recorded by the tribunal are incorrect." 36. Thus, the argument that Court pro­ceeding be ignored and reliance should be placed on the statement of appellant is an argument, which cannot be accepted. 37. The second point that fraud was practised on the appellant and by making mis-representation, some signatures were obtained on blank papers and also on blank power of attorneys be examined. 38. In Corpus Juris Secundum, Vol. 37. at page 204, the term fraud is defined as under : "Fraud is a generic term which embraces all the multifarious means which human igenuity can devise and are resorted to by one individual to gain an advantage over another by false suggestions or by suppres­sion of the truth. In its general or generic sense, it comprises all acts, omissions, and concealments involving a breach of legal or equitable duty and resulting in damage to another, or the taking of undue or unconscientious advantage of another, and, conservely, fraud cannot exist without a breach of legal or equitbale duty, it not be­ing fraud for a person to do what he has a legal right to do, or what the law pronounces honest or requires him to do, and, likewise , it not being fraud for a person to fail to per­form acts which he is not bound to per­form. Fraud has also been defined as any cunning, deception, or artifice used to cir­cumvent, cheat, or deceive another." 39. At page 215 it is stated as under: "Comprehensively stated, the elements of actionable fraud consist of: (1) A presentation. (2) its falsity. Fraud has also been defined as any cunning, deception, or artifice used to cir­cumvent, cheat, or deceive another." 39. At page 215 it is stated as under: "Comprehensively stated, the elements of actionable fraud consist of: (1) A presentation. (2) its falsity. (3) Its materiality, (4) The speakers knowledge of its falsity or ignorance of its truth. (5) his intent that it should acted on by the person and in the manner reasonably contemplated. (6) The hearers ignorance of its falsity. (7) His reliance on its truth, (8) His right to rely thereon, (9) And his consequent and proximate injury." 40. In this regard, it would be apt to refer to the decision of the Supreme Court reported as Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280. While dealing with the question of fraud and requirement of proof, following observations were made (Para 25): "Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full par­ticulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence, general allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however, strong the lan­guage in which they are couched may be, and same applies to undue influence and coercion." 41. It is in the light of aforementioned parameters, the plea as projected in this appeal are being examined. 42. The basic submission made by the learned counsel for the plaintiff-appellant is that compromise decree dated 2-12-1983 passed by Sub Registrar (Munsiff) Jammu has been obtained fraudulently. The com­promise which is the basis of the said de­cree was also not entered into by the plain­tiff-appellant with the defendant-respond­ent No. 1. It is submitted that some blank papers and power of attornies were obtained from the appellant under the pretext that these were required for some proceedings pending before the Income-tax authorities and these were required to be used in the suit in question. In addition to this, it is sub­mitted that on account of the provisions container in J. and K. Restitution of Mort­gaged Properties Act 1976 the Sub Regis­trar had no competence to pass the decree in question. 43. Seven issues were framed in this case. In addition to this, it is sub­mitted that on account of the provisions container in J. and K. Restitution of Mort­gaged Properties Act 1976 the Sub Regis­trar had no competence to pass the decree in question. 43. Seven issues were framed in this case. These have already been noticed above. All the issues have been decided on merits. It has been held that the suit filed by the plaintiff is not maintainable in view of the provisions contained under Section 47 and Order 21 of the CPC. On issue No. 2 the finding recorded is that the suit as filed by the appellant was barred by limitation. On Issue No. 3 the finding returned has gone in favour of the defendant and it has been held that the suit is not maintainable as Execution proceedings were pending in the executing Court. So far as mortgage deed is concerned it has been held that this mort­gage deed is not void and was not got ex­ecuted by practising any fraud or misrep­resentation of the appellant-plaintiff. Issue No. 4 has again been decided against the plaintiff-appellant. On issue No. 5 the find­ing returned is that no fraud was perpetu­ated. Ultimately, it was held that the com­promise deed was actually submitted be­fore the Sub-Registrar, Jammu and the de­cree is not a collusive decree and is not re­quired to be declared null and void. In the ultimate analysis the suit was dismissed. 44. In my opinion it would be apt to deal with issues Nos. 4, 5 and 6 at the first in­stance. If findings on these issues are re­turned in favour of the respondent and against the plaintiff-appellant then discus­sion on the remaining issues would be of academic interest only. As such issue No. 4 which is to the effect that whether mortgage deed executed on 31-3-1973 was void hav­ing been got executed by fraud and misrep­resentation, be examined at the first stage. 45. The plaintiff-appellant in his state­ment has said in no uncertain terms that the mortgage in respect of the shop was duly executed and consideration for this mort­gage transaction was fixed at Rs.5000/-. This was paid to him at the time of registra­tion. When subjected to cross-examination, he admitted that he had gone to the Court of Sub-Registrar for getting the deed registered. This single factor is good enough to sustain the finding of the Court below on this issue. 46. This was paid to him at the time of registra­tion. When subjected to cross-examination, he admitted that he had gone to the Court of Sub-Registrar for getting the deed registered. This single factor is good enough to sustain the finding of the Court below on this issue. 46. Independently of the above, it be seen that the plaintiff tried to reiterate his plea by contending that the mortgage deed was merely a camouflage and in fact he was a tenant and that he had taken a plea that he was paying rent. In this regard his witnesses did state that rent was being paid by the plaintiff-appellant to respondent No. 1 but receipts were not being issued. To this ex­tent was the statement of the plaintiff-ap­pellant himself. His witness Tara Chand also adverted to the fact that rent was being paid but receipts were not being issued. This wit­ness stated that Yog Raj never insisted for the issuance of the receipt at all. Ashok Kumar is another witness. He has stated that respondent No. 1 used to come to the premises of the appellant and would collect the rent. This witness also stated that re­ceipts were not being issued. It be seen that the appellant was a member of a partner­ship concern. Partnership accounts were being maintained. This has been so stated by Raj Kumar witness. He was specifically asked a question. This was to the effect as to whether in the accounts maintained by the Firm, any entry existed with regard to the payment of rent. This witness stated that the account books used to remain with the Accountant and he was unable to tell as to whether any entry regarding payment of rent was being made in the books of ac­count. The best evidence on the subject would have been account books. These were not produced. Therefore, to say that the mortgage deed was only a camouflage for a rent deed, is an argument which cannot be accepted. As indicated above, execution of the mortgage is not disputed by the plain­tiff-appellant. He admits that this was ex­ecuted in April, 1973. He wants this deed to be declared null and void after 16 years. Even period of limitation for challenging its due execution has come to an end. There­fore it has necessarily to be held that the mortgage deed was executed. He admits that this was ex­ecuted in April, 1973. He wants this deed to be declared null and void after 16 years. Even period of limitation for challenging its due execution has come to an end. There­fore it has necessarily to be held that the mortgage deed was executed. This was to be held as a mortgage deed only. The plain­tiff-appellant admits its execution. He ap­peared before the Sub-Registrar. He admit­ted that he received consideration of Rs.5000/-. The plea taken by him that notwith­standing this fact, the respondent was obtaining rent is a plea which stands unsub­stantiated. The account books are silent on this. Therefore, the finding as returned by the trial Court on this issue is upheld. 47. Issue No. 5 be examined. 48. This issue is to the effect whether defendant No. 1 played any fraud on the plaintiff and obtained his signatures on some blank papers and some vakalatnamas which were later on used for entering into a compromise in the suit. The stand taken by the plaintiff-appellant is that his signatures were obtained by respondent No. 1 on sev­eral blank papers and also on vakalatnamas with a representation that these are required for settlement of some disputes which were said to be pending with property tax authori­ties. When cross-examined, the appellant admitted that he was never subjected to any property tax. The story regarding his signing of blank papers i.e. time and venue is not consistent. As per the appellant, these blank papers and vakalatnamas were signed in the house of respondent No. 2 when he had gone there alone. The time is said to be evening. It is stated that these blank papers were signed on different occasions in the evening only. He tried to support this plea of his by placing reliance on the testimony of Ashok Kumar and Rajinder Kumar, they were partners in the firm up to 1982-1983. These witnesses when cross-examined stated that the blank papers were signed by the plaintiff-appellant in the shop premises. About 20 to 25 blank papers were got signed in their presence. On different occasions, signatures were obtained. On an individual occasion, four or five papers used to be got signed . PW Rajinder Kumar stated that re­spondent No. 1 used to go to the shop for obtaining signatures. Some of these used to be blank, other used to be printed. On different occasions, signatures were obtained. On an individual occasion, four or five papers used to be got signed . PW Rajinder Kumar stated that re­spondent No. 1 used to go to the shop for obtaining signatures. Some of these used to be blank, other used to be printed. In cross-examination , he stated that respondent No. 1 used to visit this shop once or twice in a year. The statements of these two witnesses and that of the appellant differ with regard to the pleas whether the signatures were obtained on blank papers, these differ with regard to timing, these differ about number of papers which were got signed on each occasion. These self contradictory state­ments cannot be made the basis for return­ing a finding in favour of the appellant-plain­tiff. These statements are not only contra­dictory but they are at variance with the plea taken in para 11 of the plaint. On the other hand, evidence of the defendant is that he never practised on the taxation side. He stated in clear terms that he was practising on the civil and criminal side. Mohan Lal Gupta Advocate appeared in the witness box. He stated in categoric terms that the com­promise deed was drafted and singed in Court premises on 2-12-1983. According to this witness, the plaintiff appellant had en­gaged him as a counsel. As a matter of fact, Mr. M.L. Gupta, is related to the appellant. Therefore the story put forward that re­spondent No. 1 used to obtain signatures on blank papers on different occasions, has already been disbelieved. The necessary discussion would be found while dealing with the issue No. 4. This has been indi­cated again at page (sic). If this be the posi­tion then it can be said that this superstruc­ture is sought to be raised on a base with­out foundation. 49. So far as other factors are concerned, the evidence is again against the appellant. M.L. Gupta who was counsel for the plain­tiff-appellant in civil suit No. 515/ 1983 has stated that the compromise deed was vol­untary and a free act of the parties. He stated that it was appellant Yog Raj who had approached him with a power of attorney and wanted to engage him as a counsel, M.L. Gupta had identified his signatures and that of Yog Raj on the vakalatnama which was filed in the civil Court referred to above. He stated that it was appellant Yog Raj who had approached him with a power of attorney and wanted to engage him as a counsel, M.L. Gupta had identified his signatures and that of Yog Raj on the vakalatnama which was filed in the civil Court referred to above. He has stated in categoric terms that the compromise was executed by the plaintiff in the Court premises on 2-12-1983. The plaintiff was shown the plaint. The presence of the plaintiff in the Court room of Sub-Registrar on 2-12-1983 stands established when the record of the trial Court in the above suit is perused. The presence of the parties is taken note of by the trial Court. The counsel who was appearing had cat­egorically stated that the compromise deed was drafted, executed and signed on the same day in the Court premises. It, there­fore, stands established that the compro­mise in question was arrived at and the Court decree which was passed was not col­lusive. Finding on issue No. 6 which was returned in favour of the respondent by the trial Court is accordingly upheld. 50. As indicated above, if findings on issues Nos. 4, 5 and 6 as returned by the trial Court are sustained, further discussion on issues Nos. 1, 2 and 3 becomes academic in nature. However, as arguments were raised on these issues also, it would be apt to deal with these also. 51. Issue No. 1 is to the effect as to whether suit filed by the plaintiff is main­tainable under Section 47 and Order 21 of the CPC. The argument raised by respond­ent No. 1 is that all questions pertaining to execution, discharge or satisfaction of a decree are required to decided by an ex­ecuting Court and not by a separate suit. The object of this section is that the Court having parties before it, should decide all the questions relating to the execution etc. In these proceedings, only what is sought to be urged is that if a decree is to be de­clared as a void decree, having been passed by a Court without jurisdiction or a Court which is not in conformity with any manda­tory provision of law, or is barred by a statu­tory provision and for that reason it is not executable then objection regarding this can be taken under Section 47 of the CPC. In Hira Lal v. Kali Nath reported as AIR 1962 SC 199 the view expressed is that the va­lidity of decree can be challenged in execu­tion proceedings only on the ground that the Court which passes a decree was lacking jurisdiction. 52. On the basis of the above decision it is contended that as a remedy is avail­able to the plaintiff-appellant to raise this question in executing Court, therefore, a separate suit would be barred. Reliance is being placed on a decision of the Supreme Court reported as Chandrika Misir v. Bhaiyalal, AIR 1973 SC 2391. In the afore­mentioned case it has been observed that the Legislature has placed no restriction vis-a-vis matters which are to be dealt with under Section 47 of the CPC. This section would also apply to the validity of a decree which is a compromise decree and which aspect of the matter is being challenged. The bar created under Order 23, Rule 3(a) of the CPC would also step in and for this propo­sition reference is being made to a decision of the Supreme Court of India reported as Banwari Lal v. Smt. Chando Devi, AIR 1993 SC 1139. The Supreme Court of India was of the opinion that it is the Court which has passed the decree which is enjoined to decide the controversy where the parties have arrived at a compromise in a lawful manner. What is said in paragraph 7 is being reproduced below : "7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the con­troversy whether the parties have arrived at an adjustment in a lawful manner. The ex­planation made it clear that an agreement or a compromise which is void or viodable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule. Having introduced the pro­viso along with the explanation in Rule 3 in order to avoid multiplicity of suit and pro­longed litigation a specific bar was pre­scribed. Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying: - "3A. Having introduced the pro­viso along with the explanation in Rule 3 in order to avoid multiplicity of suit and pro­longed litigation a specific bar was pre­scribed. Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying: - "3A. bar to suit - No suit shall lie to set aside a decree on the ground that the com­promise on which the decree is based was not lawful." 53. Therefore, to say that in execution proceedings such a plea cannot be taken is an argument which cannot be accepted. Therefore, issue No. 1 which is inter connected with issue No. 3 is held to be rightly decided by the Court below. 54. So far as issue No. 2 is concerned once a finding is returned that the plain­tiff-appellant was present in the Court at the time when the compromise decree was passed, then as a natural corollary, knowl­edge of the decree would stand attributed to him. This decree was passed on 2-12-1983. The present suit out of this appeal has arisen was filed on 31-10-1999. This would be therefore, barred by limitation. 55. The argument raised by the learned counsel for the appellant that the suit was barred on account of the provisions con­tained in the provisions of J. and K. Resti­tution of Mortgaged Properties Act of 1976, be now examined. 56. The relevant provisions of the Act be noticed. 57. Section 16 of the 1976 Act deals with the jurisdiction of the Civil Court. The bar of jurisdiction is with regard to limited matters. This section provides as under: "Jurisdiction of Civil Courts barred: - No Civil Court shall have jurisdiction to enter­tain any claim to enforce any right under a mortgage declared extinguished under this Act or to question the validity of any pro­ceedings under this Act." 58. A perusal of the above statutory provisions would indicate that this section does not completely oust the jurisdiction of the civil Court. The civil Courts jurisdic­tion is barred only with regard to two mat­ters. These are: i/ Not to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or ii/ To question the validity of any pro­ceedings under this Act. 59. None of the conditions as mentioned in Section 16 are present in this case. The civil Courts jurisdic­tion is barred only with regard to two mat­ters. These are: i/ Not to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or ii/ To question the validity of any pro­ceedings under this Act. 59. None of the conditions as mentioned in Section 16 are present in this case. There­fore, the argument that on account of the provisions contained in J. and K. Mortgaged Property Act of 1976, the suit was barred and the Civil Court had no jurisdiction, is an argument which cannot be accepted. 60. Another argument with regard to non-compliance of Order 34 of the Code of Civil Procedure be also examined. 61. It is urged that as preliminary decree was not passed, therefore, the decree Which has been passed is in contravention of provisions of O. 34. This plea of the ap­pellant is again without any substance. This was a case where the parties had arrived at compromise. If this be the situation, then the strict compliance of Order 34 of the Code of Civil Procedure is not required. This broad proposition of law does not require support of judicial precedent. However, a decision which has been quoted by the counsel for respondents and which supports this conention is being referred to in this regard. This is reported as AIR 1982 Orissa 162, Prehlad Charan Pandey v. Sabswar Mahadev. In this situation, the argument based on the plea of non-compliance of Or­der 34 also loses significance. 62. In view of the above discussions, the findings as recorded by the trial Court on all the issues are sustained. This appeal as such is found to be without merit and is dismissed. 63. The counsel for the appellant, at this stage, has made a prayer that the op­eration of this judgment be stayed. 64. Allowing the prayer made by the counsel for the appellant, it is accordingly ordered that the operation of this judgment shall remain in abeyance for a period of six weeks from today. 65. This appeal as indicated above, is dismissed.