Orissa High Court
Sakuntala Mishra And Others vs Jagdeep Pratap Deo ... Opposite Party on 1 August, 2018
Equivalent citations: AIR 2019 (NOC) 456 (ORI.), AIRONLINE 2018 ORI 263
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
C.M.P. No.1440 of 2017
In the matter of application under Article 227 of the Constitution of
India.
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Sakuntala Mishra and Others .. ... Petitioners.
- Versus-
Jagdeep Pratap Deo ... Opposite Party.
Counsel for Petitioners : M/s. Upendra Kumar Samal, C. D. Sahoo, S.
P. Patra, S. Naik and M. R. Mohapatra.
Counsel for Opp.Party : M/s. Prafulla Kumar Rath, S. K. Pattnaik, A.
K. Rout, R. N. Parija, S. K. Behera, P. K. Sahoo
and A. Behera.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 25.07.2018 ; Date of judgment :01.08.2018
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S. N. Prasad, J. This writ petition is under Article 227 of the Constitution of
India invoking the supervisory jurisdiction of this court by assailing the
order DTD.30.3.2017 passed by the Civil Judge (Sr. Division) Sundargarh in
C.M.A. No.2 of 2017 and Revisional order dtd.31.10.2017 passed by the
District Judge, Sundargarh in Civil Revision No.2 of 2017 have been
assailed.
2. The brief fact of the case is that the opposite party being the
plaintiff had filed Title Suit No.3 of 1998 in the court of Civil Judge (Sr.
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Division), Sundargarh for declaration of right, title and interest over
schedule „A‟ land and for recovery of possession and permanent
injunction.
The plaintiff‟s case in brief is that the suit land appertaining to
Hal Khata No.507, Hal Plot No.3/4035, area Ac.0.140 decimal of Mouza Tal
Sankara, district Sundargarh was recorded in the name of Birender Sekhar
Deo and his brother Bharatendra Sekhar Deo. As per amicable settlement
in between the brothers, the suit land fell into the share of Bharatender
Sekhar Deo who sold the suit land to the plaintiff for a consideration of
Rs.27,000/- and executed two sale deeds dtd.08.10.1990 and 9.10.1990,
the possession was delivered to the plaintiff.
The defendants having no manner of title, right and interest over
the suit land, forcibly constructed a house, hence the plaintiff filed the suit.
The petitioners / defendants had appeared before the original trial court,
denied the averments made in the plaint and claim their right, title and
interest over the suit land by virtue of „Bramhator Dan‟, by virtue of which
they are in possession of the suit land since the year 1962 which has been
confirmed in a proceeding initiated U/s.144/145 of Cr.P.C. vide MCC
No.254/175 of 1987, that apart the vendor of the plaintiff had no salable
interest over the suit land.
The original trial court, after examining the witnesses on behalf
of the plaintiff vis-à-vis the defendants and after going through the various
exhibits marked on behalf of the parties, has decreed the suit vide judgment
dtd.26.3.2004 on contest by which the right, title and interest of the
plaintiff over the suit land has been declared and the defendants are
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permanently restrained from making any further construction over the suit
land and were directed to give possession of the suit land to the plaintiff
by demolishing the building over it.
Against the aforesaid judgment and decree passed in Title Suit
No.3 of 1998, the petitioners / defendants had preferred RFA No.26/32 of
2004 in the court of District Judge, Sundargarh and the 1 st Ad hoc
Additional District Judge, Sundargarh, vide judgment dtd.6.9.2005
dismissed the appeal.
The petitioners being the appellants had filed RSA No.551 of
2005 before this court but the same has also been dismissed vide judgment
dtd.4.3.2016 against which special leave petition was filed before Hon‟ble
Supreme Court which has also been dismissed.
The plaintiff / decree holder had filed execution case being
Execution Case No.10 of 2004 for executing the decree passed by the court
in Title Suit No.3 of 1998 wherein the petitioners have filed application
U/s.47 of CPC wherein the identity of the suit land has been disputed,
hence contended that the decree is not executable.
According to the petitioners / defendants, the suit land vide Hal
Khata No.507, Hal Plot No.3/4035, corresponding to Sabik Khata No.308
and Sabik Plot No.888, with the status "Sudargarh Nazul Basti" which is a
government land. A ceiling proceeding under the OLR Act was initiated
against Birendra Pratap Sekhar Deo and Bhartendrea Sekhar Deo vide
Ceiling Case No.23 of 1974 wherein the entire property of the royal family
has been referred in the ceiling unit, but Sabik Khata No.308 and Sabik Plot
No.888 was not retained by the royal family which will show that Plot
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No.888 remained as Government land, since the opposite party / plaintiff is
claiming his title over the Sabik Plot No.888 by virtue of a registered sale
deed, the same cannot be granted to him as his vendor, from whom he
derived his title, has no salable right, title and interest over the sui land.
A proceeding U/s.15(b) of the Orissa Survey and Settlement Act
was initiated before the Addl. Commissioner, Settlement and Consolidation,
Sambalpur vide R.P No.938 of 2016, on 4.10.2016, the Commissioner had
passed an order that the settlement recording of the plot no.3/4035
corresponding to Sabik Plot No.888 in the name of Ruling Chief and his
brother in Nazul status appears to be illegal. The same should have been
recorded in Anbadi Khata and Nazul Basti, that apart the judgment debtor
has also pleaded that the decree obtained by fraud and misrepresentation is
a nullity and is un-executable.
The executing court vide order dtd.30th March, 2017, after
hearing the argument from both the sides regarding the petition for stay of
Execution Case No.10 of 2004, has rejected the same holding therein that
the C.M.A. does not merit consideration and dismissed being devoid of
merit, rejected the application filed for stay of the further proceeding in
execution case filed U/s.47 of the CPC being devoid of merit and posted the
execution case on 24.4.2017 for hearing.
The petitioners / defendants have preferred revision before the
District Judge, Sundar under it revisional jurisdiction but the same has
also been dismissed vide order dtd.31.10.2007 against which this writ
petition has been filed invoking the supervisory jurisdiction of this court
conferred Under Article 227 of the Constitution of India.
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3. The ground taken by the learned counsel for the petitioners in
assailing the aforesaid orders is that the court below has not
appreciated the intent of fraud which has been raised by the petitioners
before it and since it goes to the root of the title and by suppressing the
material facts the decree has been obtained by the plaintiff / defendant,
hence the decree will be said to be nullity and as per the settled proportion
of law that if there is any fraud, the decree will be said to be nullity in the
eye of law, hence not executable.
He has referred to various exhibits like that of the deed of
release, the certified copy of the order passed by the Collector, District
Record Room, Collectorate, Sundargarh in copy application no.463 of 2016,
the order passed by the Additional Commissioner, Settlement and
Consolidation, Sambalpur, basis upon which it has been submitted that the
Plot No.888 does not exist under the Khata No.1 while in the deed of release
the reference of Plot No.888, Khata No.1 is there which is because of the
reason that the Sabik Plot No.888 is recorded as anabadi as per the nazul
khatian, hence since the right title has been decreed in favour of opposite
party / plaintiff on the basis of deed of release wherein there is reference of
Plot No.888, Khata No.1 but since plot No.888 is not coming under Khata
No.1, hence right title over the aforesaid plot cannot be declared in his
favour.
Their further case is that by virtue of living in possession of the
aforesaid suit property since the year 1962, they have made an application
for settlement before the Tahasildar, although the same has been rejected
but an appeal has been preferred before the Additional Commissioner,
Settlement and Consolidation and all these facts have been brought into the
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notice of executing court by filing application U/s.47 of CPC which ought to
have been taken into consideration by the executing court before
executing the decree passed by the original trial court. Since it has not
been done, the infirmity has been committed and further in the impugned
orders there is no discussion regarding part of fraud rather only on the
basis of decree having been confirmed under the 1st appellate / 2nd
appellate and under Article 136 of the constitution of India by the Hon‟ble
Supreme Court, the executing court, without assigning reason with respect
to the commission of fraud, has rejected the application filed U/s.47 of CPC
as such the same is non-speaking, hence the matter may be remitted before
the trial court for adjudication on merit afresh.
4. Per contra Mr. Prafulla Kumar Rath, learned counsel appearing
for opposite party / plaintiff has seriously objected the grounds, reasons
and contention raised by the learned counsel for the petitioners/
defendants by submitting that no fraud has been committed by the opposite
party / plaintiff by raising the legal issue regarding the scope of Section 47
of CPC vis-à-vis Article 227 of the constitution of India.
He submits that the petitioners have contested the suit all along
and filed relevant documents including the part of record of rights which
has been marked as Exhibits- S & T wherein the suit property in question
has been referred as Nazul Sundargarh, hence it cannot be said that the
nature of land which now the petitioners are saying that it is nazul, was not
within their knowledge. They have filed detail written statement, contested
the suit seriously but never raised this point rather it is the admission on
their part that Hal Khata No.507 of Mouza - Tal Sankara, stands recorded
in the name of Bharatendra Sekhar Deo and Birendra Sekhar Deo but in
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the said pata plot no.3/4035 measuring area Ac.0.140 decimal the
possession of the defendant has been entered in the remarks column as
he is in possession of the said land since the year 1962.
Their further case, as per the written statement, was that late
Bharatendra Sekhar Deo has no salable interest over the suit land because
the petitioners / defendants are in possession of the suit land since the year
1962 and their possession over the suit land has also been confirmed in a
proceeding bearing no.MCC no.254/175 of 1987 and knowing fully award of
the possession of the defendants, the plaintiff, behind their back
fauldulently managed to create a deed of sale in respect of the suit land.
Their further case is that they are Brahmin by caste and are
staying in Sundargarh since the year 1959-60. Late Bir Udit Pratap Sekhar
Deo, Ex-ruling chief of Gangpur State called them and for the peace of the
departed soul of late Maharaja Raghunath Sekhar Deo, gave the suit land to
the them as a „BRAHAMOTTOR DANA‟ and also gave delivery of possession
of the suit land by the registered sale deeds on 10.6.1962, since then they
are residing over the suit property and earning their livelihood by opening a
tea stall in the adjoining portion of the suit land by encroaching upon the
PWD department land.
He submits that it is the admitted case of the petitioners that the
land in question is recorded in the name of Bharatendra Sekhar Deo and
Birendra Sekhar Deo and basis upon which the decree has been passed by
the Trial court declaring right and title over the suit property in favour of
the opposite party by taking into consideration the sabik map vide Exhibit-K
and the part of the record of right as marked as Exhibits-S & T and when
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the petitioners lost in the first appellate stage, second appellate stage before
this court as also before the Hon‟ble Apex Court under its appellate
jurisdiction as conferred under Article 136 of the constitution of India
wherein the order has been passed by the Hon‟ble Apex Court in SLP (Civil)
No.16004 of 2016 on 26.7.2016, it is only after losing up to the level of
second appellate court, when he has assailed the order before Hon‟ble Apex
Court, he has made an application before the Deputy Collector, District
Record Room Collectorate, Sundargarh by filing application No.491 of 2016
seeking information regarding nature of the land and thereafter filed
application before the concerned Tahasildar for settlement of the land in
question and by virtue of order dtd.7.3.2017 the same was rejected against
which now the appeal is pending before the Additional Commissioner,
Consolidation.
He submits that in the proceeding before the Tahasildar he has
not been impleaded the opposite party / plaintiff and in his absence an
application has been filed which is now pending before the appellate
authority, which has been done consciously by the petitioners even knowing
the fact that in the suit he is party and decree has been passed in his
favour.
He submits that so far as the claim of the petitioners regarding
settlement of the land, the petitioners cannot get any relief by virtue of the
provision of schedule 5 appended to the Odisha Government Land
Settlement Rules, 1983 wherein as per the provision of section 1(b)(1) the
persons including his lawful predecessor in interest was in possession of
such land for a period of at least 3 years prior to the said date, i.e.
26.2.2009 and submits a valid application for such settlement within period
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of 6 months from the date of Odisha Government Land Settlement
(Amendment) Rules, 2010 and within such further period as may be
appended by a notification published in the official gazette from time
to time, but here in this case the application has been filed much after the
limitation period, as such his application filed before the competent
authority for settlement of the land cannot be said to be entertainable.
5. Heard the learned counsel for the parties and appreciated their
rival submissions.
This court, before coming to the factual matrix, thinks it proper
to consider the scope of Section 47 of Code of Civil Procedure.
Section 47 of CPC confers power upon the executing court to
determine a question if arising between the parties in the suit in which the
decree was passed or their representative relating to execution or discharge
or satisfaction of the decree, shall be determined by the executing court and
not by a separate suit.
This court has gone across various judgment pronounced by
Hon‟ble Apex Court dealing with Section 47. The relevant would be to refer
the judgment rendered in the case of Brakewel Automotive Components
(India) Vrs. P.R. Selvam Alagappan reported in (2017) 5 SCC 371 wherein
their lordships of Hon‟ble Apex Court, while dealing with the scope of
Section 47, have laid down the proposition at paragraphs 21 and 22 as is
being referred herein below:-
"21. As it is, Section 47 of the Code mandates determination by
an executing court, questions arising between the parties or their
representatives relating to the execution, discharge or satisfaction of
the decree and does not contemplate any adjudication beyond the
same. A decree of court of law being sacrosanct in nature, the
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execution thereof ought not to be thwarted on mere asking and on
untenable and purported grounds having no bearing on the validity or
the executability thereof.
22. Judicial precedents to the effect that the purview of
scrutiny under Section 47 of the Code qua a decree is limited to
objections to its executability on the ground of jurisdictional infirmity or
voidness are plethoric. This Court, amongst others in Vasudev
Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1)
SCR 66 in essence enunciated that only a decree which is a nullity can
be the subject matter of objection under Section 47 of the Code and not
one which is erroneous either in law or on facts. The following extract
from this decision seems apt:
"6. A Court executing a decree cannot go behind the decree
between the parties or their representatives; it must take the decree
according to its tenor, and cannot entertain any objection that the
decree was incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a decree even if it be
erroneous is still binding between the parties.
7.When a decree which is a nullity, for instance, where it is
passed without bringing the legal representatives on the record of a
person who was dead at the date of the decree, or against a ruling
prince without a certificate, is sought to be executed an objection in
that behalf may be raised in a proceeding for execution. Again,
when the decree is made by a Court which has no inherent
jurisdiction to make it, objection as to its validity may be raised in
an execution proceeding if the objection appears on the face of the
record: where the objection as to the jurisdiction of the Court to
pass the decree does not appear on the face of the record and
requires examination of the questions raised and decided at the
trial or which could have been but have not been raised, the
executing Court will have no jurisdiction to entertain an objection
as to the validity of the decree even on the ground of absence of
jurisdiction."
It is evident from the observation made by Hon‟ble Apex Court in
those paragraphs as referred herein above that the purview of scrutiny
under Section 47 of the Code qua a decree is limited to objections to its
executability on the ground of jurisdictional infirmity or voidness are
plethoric. A Court executing a decree cannot go behind the decree until it is
set aside by an appropriate proceeding in appeal or revision, a decree even if
it be erroneous is still binding between the parties. When a decree which is
a nullity, for instance, where it is passed without bringing the legal
representatives on the record of a person who was dead at the date of the
decree, or against a ruling prince without a certificate, is sought to be
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executed an objection in that behalf may be raised in a proceeding for
execution. Again, when the decree is made by a Court which has no
inherent jurisdiction to make it, objection as to its validity may be raised
in an execution proceeding if the objection appears on the face of the record
where the objection as to the jurisdiction of the Court to pass the decree
does not appear on the face of the record and requires examination of the
questions raised and decided at the trial or which could have been but have
not been raised, the executing Court will have no jurisdiction to entertain
an objection as to the validity of the decree even on the ground of absence of
jurisdiction.
At paragraph 23 of the said judgment it has been laid down by
taking aid of the judgment passed by Hon‟ble Apex Court in the case of
Dhurandhar Prasad Singh vs. Jai Prakash University and others,
reported in (2001) 6 SCC 534 laying therein that exercise of power under
Section 47 of the Code is microscopic and lies in a very narrow inspection
hole and an executing court can allow objection to the executability of the
decree if it is found that the same is void ab initio and is a nullity, apart
from the ground that it is not capable of execution under the law, either
because the same was passed in ignorance of such provision of law or the
law was promulgated making a decree unexecutable after its passing.
This court also intends to go through the scope of Article 227 of
the Constitution of India. Dealing with the scope of Article 227 of the
constitution of India, Hon‟ble Apex Court in the case Shalini Shyam Shetty
and Another Vrs. Rajendra Shankar Patii report in (2010) 8 SCC 329 has
been pleased to laid down therein regarding the scope of Article 227 which
relates to the supervisory powers of High Courts and by taking aid of the
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judgment rendered by Hon‟ble Full bench of Calcutta High Court in the case
of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee reported in
AIR 1951 Calcutta 193 wherein it has been laid down that Article 227 of
the Constitution of India does not vest the high Court with limit less power
which may be exercised at the court‟s discretion to remove the hardship of
particular decisions. The power of superintendence it confers is a power of a
known and well recognized character and should be exercised on those
judicial principles which give it its character. In general words, the high
court‟s power of superintendence is a power to keep the subordinate courts
within the bounds of the authority, to see that they do what their duty
requires and that they do it in a legal manner.
The power of superintendence is not to be exercised unless there
has been;
(a) an unwarranted assumption of jurisdiction, not vested in a court or
tribunal; or
(b) gross abuse of jurisdiction; or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or
tribunals.
Further in the aforesaid judgment Hon‟ble Apex Court has taken
aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs.
Phiroz N. Bhatena reported in (1991) 3 SCC 141 wherein it has been laid
down that in exercise of jurisdiction under Article 227, the high court can
set aside or reverse finding of an inferior court or tribunal only in a case
13
where there is no evidence or where no reasonable person could possibly
have come to the conclusion which the court or tribunal has come to.
Hon‟ble Apex Court has made it clear that except to this limited
extent the High Court has no jurisdiction to interfere with the finding of
facts.
Further in the judgment rendered in the case of Laxmikant
Revchand Bhojwani Vrs. Pratapsingh Mohansingh Pardeshi, reported in
(1995) 6 SCC 576 it has been laid down that the High Court under Article
227 cannot assume unlimited prerogative to correct all species of hardship
or wrong decisions. Its exercise must be restricted to grave dereliction of
duty and flagrant abuse of fundamental principles of law and justice.
It has been laid down at paragraph 47 of the aforesaid judgment
that the jurisdiction under Article 227 is not original nor is it appellate. This
jurisdiction of superintendence under Article 227 is for both administrative
and judicial superintendence. Therefore, the powers conferred under Article
226 and 227 are separate and distinct and operate in different fields.
Another distinction between these two jurisdictions is that under Article
226 the high court normal annuls or quashes an order or proceeding but in
exercise of its jurisdiction under Article 227, the high court, apart from
annulling the proceeding, can also substitute the impugned order by the
order which the inferior tribunal should have made.
It has further been laid down regarding the powers to be
exercised by the high court under Article 227 of the constitution of India.
The High Court, in exercise of its jurisdiction of superintendence, can
interfere in order only to keep the tribunals and courts subordinate to it
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within the bounds of its authority, in order to ensure that law is followed by
such tribunals and courts by exercising jurisdiction which is
vested with them and by not declining to exercise the jurisdiction which is
vested in them. Apart from that, high court can interfere in exercise of its
power of superintendence when there has been a patent perversity in the
orders of the tribunals and courts subordinate to it or where there has been
a gross and manifest failure of justice or the basic principles of natural
justice have been flouted.
In exercise of its power of superintendence high court cannot
interfere to correct mere errors of law or fact or just because another view
than the one taken by the Tribunals or courts subordinate to it, is a
possible view. In other words the jurisdiction has to be very sparingly
exercised.
This court within the framework of the provision of section 47 as
also Article 227 of the constitution of India, is now examining the factual
aspect which is involved in the instant writ petition.
6. The factual fact which is not in dispute in the case in hand as
per plaint and written statement filed by the petitioners / defendants is that
a suit was filed by the opposite party / plaintiff for declaration of right, title,
interest over the suit property which was recorded in the name of one
Birendra Sekhar Deo and his brother Bharatendra Sekhar Deo in respect of
Hal Khata No.507, extending an area of Ac.16.02 decimal. After amicable
partition between two brothers, the suit land as situated under Khata
No.507, bearing Plot No.3/4035, measuring and area of Ac.0.14 decimal has
fallen to the share of Bharatendra Sekhar Deo who had sold the suit
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property to the plaintiff by executing two registered sale deed on 08.10.1990
and 09.10.1990 for consideration of Rs.27,000/- and accordingly delivery
of possession of the suit land has been given in favour of the opposite
party / plaintiff.
The case of the petitioners / defendants is that they being
Brahmin by caste have been staying at Sundargarh since the year 1959-60.
Ex-ruling chief of Gangpur State namely late Bir Udit Pratap Sekhar Deo
had given the suit land to them as „Brahamottor Dana‟ on the death
anniversary of his grandfather, late Maharaja Raghunath Sekhar Deo. The
defendants were called for the purpose and were given the delivery of
possession of the suit land as per Vedic rites on 10.6.1962 which has been
given for the purpose of seeking blessing for the departed soul to rest
peacefully in the heavenly abode. They have constructed a kuchha house
over the suit land in the year 1962, later on opened a tea stall on the
Nayanjori land between the suit land and PWD road. They said to have been
paying fine for such encroachment of the said government land. The said
Bir Udit Pratp Sekhar Deo had promised to execute a document in support
of the said „Brahamottor Dana‟ in respect of the suit land in favour of the
defendants but due to his prolong illness and as per his treatment he
remained abroad from Sundargard, it did not ultimately materialized till his
death in the year 1967.
The defendants assert to be in possession of the suit land since
10.6.1962, the date when they entered into possession of the suit land
being duly delivered by Bir Udit Pratap Sekhar Deo by „Brahamottor Dana‟
accordingly in the record of hal settlement operation in the remarks column,
defendants position has been noted, ROR being published on 15.9.1978, in
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that very year a proceeding u/s.145 of the code of civil procedure
commenced in between the parties. In the said proceeding possession of
the defendants has been declared. The defendants‟ further claim
to have been leasing out portion of the suit land to different persons in the
year 1986 to meet the financial difficulties.
The decree has been passed in favour of the opposite party /
plaintiff declaring right, title, interest over the suit property which has been
assailed by the petitioners / defendants before the first appellate court but
not succeeded there, hence approached to the second appellate court, i.e.
before this court, but not succeeded, thereafter went to Hon‟ble Supreme
Court under its appellate jurisdiction but lost there also by the order passed
on 26.7.2016 in SLP (civil) No.16004 of 2016.
The petitioners although filed an execution case in the year 2004
being Execution Case No.10 of 2004 but the same has not proceeded due to
pendency of the appeal in different stages and after the order passed by the
Hon‟ble Supreme Court on 26.7.2016 an application was filed in the month
of February 2017 invoking the jurisdiction conferred U/s.47 of the code of
civil procedure on the ground that the very reference in the deed of release
about Plot No.888, Khata No.1, Sundargarh Nazul which was made on 23 rd
October, 1972 by one Sri Birendrasekhar Deo and Sri Martendrasekhar Deo
but on verification of Nazul Khatian of Nazul Basti, Sundargarh it is seen
that Plot No.888 does not exists under Khata No.1 and it has also been
communicated that the aforesaid land in question is recorded as Anabadi
which is a Government land and since the land in question is a Government
land, the deed of release will be said to be a fraudulent document and the
said deed of release is the basis of claiming title over the suit land by the
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opposite party / plaintiff, hence the entire decree since is based upon a
fraudulent document, will be said to be nullity in the eye of law and
according to the learned counsel for the petitioners, it is settled
position of law that if a decree has been obtained by commission of fraud,
the same will be said to be nullity in the eye of law and when this point has
been raised by him before the executing court under section 47 of CPC that
ought to have been taken into consideration but not taking it into
consideration will be said to be miscarriage of justice, as such the same is
to be set aside by this court in exercise of power conferred under Article 227
of the constitution of India in exercise of revisonal / supervisory
jurisdiction.
While on the other hand, learned counsel for the opposite party
/ defendant seriously refuted the aforesaid argument by submitted that the
ROR has been produced by the petitioners / defendants marked as
Exhibits- S, T and K wherein there is reference of Nazul Sundargarh, hence
it cannot be said that the petitioners were having no knowledge about the
same, rather their admitted case, as per the written statement, was that the
suit property under Khata No.507 stands recorded in the name of
Bharatendra Sekhar Deo and Birendra Sekhar Deo and the same has been
given to them as „Brahamottor Dana‟ and since then from the year 1962
they are in possession of the suit property, as such now they cannot take
altogether different point after losing in all the stages in the suit / appeal.
This court, after appreciating the rival contention, taking into
consideration the scope of section 47 vis-à-vis Article 227 of the constitution
of India is of the view that the petitioners are contesting the suit right from
the year 1998 and taken the specific plea regarding the suit property which
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according to them is recorded in the name of late Bir Udit Pratap Sekhar
Deo, who has given them the suit land as „Brahamottor Dana‟ and
since the year 1962, they are in possession of the suit land and on the
basis of the aforesaid fact they are claiming their title over the suit property
and this court, after taking into consideration this aspect of the matter, has
passed judgment declaring right, title interest over the suit land in favour of
the opposite party - plaintiff. The petitioners have lost up to the level of
Hon‟ble Supreme Court and it is only thereafter they have filed an
application before the Deputy Collector, Record Room, Sundargarh and got
information that Plot No.888, Khata No.1 situated in Sundargarh Nazul is
Anabadi, a government land, hence the vendor having no title over the suit
property has got no right to transfer it in favour of the opposite party /
plaintiff and to that effect they have filed an application U/s.47 of CPC for
stay of the execution proceeding as also to examine that aspect of the
matter but the executing court has refused to interfere by holding that the
application for stay is devoid of merit, the same has been confirmed under
the revisional jurisdiction by the learned District Judge, Sundargarh which
is before this court under Article 227 of the constitution of India.
As per the settled position of law regarding the jurisdiction of
high court under article 227 of the constitution of India as referred herein
above and taking into consideration the scope of section 47 of CPC, there is
no denial about the settled position of law that if a party has contested the
suit at length, filed written statement, not questioned the nature of land and
after losing it up to the level of Hon‟ble Supreme Court, he cannot be
allowed to turn around and put the things in the position from where the
trial has began.
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7. Learned counsel for the petitioners has emphatically argued that
there is intent of fraud and it is settled position of law that fraud vitiates
everything and since the judgment has been passed basing upon a
fraudulent document, the judgment will be said to be nullity in the eye of
law, hence the same ought to have been considered by the executing court
but now the question is that it is not the case of the petitioners that they
were not knowing about the nature of land, rather it is admitted case that
they were knowing about the nature of land and also claiming their title
over the suit property by virtue of the said deed of release which was
recorded in the name of the royal family from where the deed of release has
came into existence but after losing, they, on the basis of an information
received by them from Deputy Collector, Record Room, Sundargarh, they
are questioning their own admission made before the trial court in their
written statement, according to my considered view, the same cannot be
said to be permissible.
8. Further the petitioners want to take aid of one document, basis
upon which, they are now claiming for settlement of the suit property in
their favour and to that effect they have made application before the
Tahasildar but the same has also been rejected, however it has been
submitted on behalf of the petitioners that appeal is pending before the
Additional Commissioner, Consolidation but very surprisingly the
petitioners have not been impleaded opposite party - defendant in that
proceeding before the revenue authority and now want to take aid of that
document against opposite party - defendant which also cannot be said to
be permissible in view of settled position of law that if in a proceeding when
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the opposite party has not been arrayed as party, any order passed in the
proceeding, cannot be taken against him.
9. There is no dispute and denial about the fact that fraud vitiates
everything, but the question is that who has committed fraud. It is the
petitioners or the opposite party because both parties have given their trust
without questioning the title of the ruling chief over the suit property and
after losing it now the question of fraud is being raised by the petitioners
which is nothing but by way of a counter-blast since they have become
unsuccessful in getting title over the property in question.
Further even accepting the argument of the petitioners that
there is fraud but they have failed to point out that who has committed
fraud whether the opposite party - or his vendor or the ruling chief and it is
settled that the definition of fraud as per the provision of section 17 of the
Contract Act, it has very much defined therein that if there is active
concealment of the fact it will be said to be fraud, but the petitioners have
failed to bring anything on record that there is active concealment of any
material fact by the opposite party - defendant, rather their case all along is
that they have purchased the property from the vendor and vendor has got
his right by virtue of the deed of release and there there is fraud. But the
petitioners were very much conscious about the said deed of release but not
questioned even though claiming to be in possession since the year 1962 by
virtue of the very same document.
If according to the petitioners there was any intent of fraud it
ought to have been brought on record but they have chosen not to do so,
reason is very much clear that they were also claiming right over the suit
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property by declaration of right and title in their favour and after losing,
they are raising the issue of fraud alleged to have committed by the
opposite party / defendant.
10. The fact as has been raised by the petitioner in the application
filed U/s.47 of the Code of Civil Procedure regarding fraud, the same is
mixed question of fact and law and it is settled that for getting a finding on
mixed question of fact and law, the same needs to be adjudicated by leading
evidence in that regard but no such plea has ever been taken by the
petitioners -defendants in course of trial as also before the appellate courts
and when the matter has set at rest right up to the level of Hon‟ble Supreme
Court, a new plea of mixed question of fact and law has been raised before
the executing court in order for a de novo trial, which according to my
considered view is not the scope of the provision of section 47 and taking
into consideration the aforesaid aspect of the matter the executing court has
rejected the application on the ground that the issue has been set at rest
and this point has never been raised either before the trial court or before
the appellate courts, which cannot be said to be an improper order, rather it
will be said to be an order strictly in terms of the provision as contained in
section 47 of the Code of Civil Procedure as per the settled position of law as
discussed herein above.
This court further reiterates that since there is no infirmity in
the decision taken by the executing court in an application filed U/s.47 of
CPC, hence the same is not to be looked into by this court sitting under
Article 227 of the constitution of India as because the aforesaid order is not
coming under the fold of scrutiny as per the settled position of law as
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discussed herein above to be dealt with under the provision of Article 227 of
the constitution of India.
It is as has been settled the scope of section 47 of CPC is
concerned, as has been laid down by Hon‟ble Apex Court in the judgment
rendered in the case of Brakewel Automotive (supra) that a microscopic
view is to be given by the high court in entertaining application U/s.47 of
the CPC, meaning thereby the executing court has not been conferred with
the power to initiate a fresh trial rather if there is any miscarriage of justice
then only that power can be exercised, but according to my considered view
and as per the discussion made herein above at length, it cannot be said
that there is any miscarriage of justice meted out to the petitioners /
defendants.
11. In view of the discussion made herein above and taking into
consideration the scope of Section 47 of CPC as also Article 227 of the
constitution of India, according to my considered view the orders passed by
the executing court cannot be said to be suffer from jurisdictional error or
miscarriage of justice, as such needs no interference by this court under its
supervisory jurisdiction.
In view thereof the CMP fails and it is dismissed.
...................
S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 1st August, 2018 / Manas.