Orissa High Court
Savitri Alias Savitri Devi Bhawsinka ... vs Ms.Bharat Motors Cantonment Road ... on 30 August, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.1817 of 2016
In the matter of an application under Article 227 of the Constitution
of India.
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Savitri @Savitri Devi Bhawsinka and others ....Petitioners
Versus
M/s.Bharat Motors,
Cantonment Road, Cuttack and others ....Opposite parties
For Petitioners -- Mr.S.P.Mishra,
Sr.Advocate
Mr.L.K.Moharana,
Advocate
For Opposite parties -- Mr.M.K.Mishra,
Sr.Advocate
Mr.P.K.Das,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing :22.8.2017 & Date of Judgment:30.8.2017
Dr.A.K.Rath, J.This petition seeks to lacinate the order dated 24.11.2016 passed by the learned Civil Judge (Sr.Division) 1st Court, Cuttack in C.M.A. Case No.310 of 2016 arising out of Execution Case No.25 of 2016, whereby and whereunder, the learned executing court allowed the application of the J.Drs- opposite parties to adduce oral evidence in the application under Sec.47 C.P.C.
22. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it say that husband of petitioner no.1 as plaintiff instituted C.S.No.6789 of 2014 in the court of the learned Civil Judge (Sr.Division), Cuttack for eviction of the defendants, arrear house rent and damages. The defendants entered contest and filed written statement denying the assertions made in the plaint. Both the parties led evidence, oral and documentary, in support of their cases. The suit was decreed. The unsuccessful defendants challenged the said judgment and decree before the learned District Judge, Cuttack in R.F.A.No.10 of 2016, which was eventually dismissed. While the matter stood thus, D.Hrs levied Execution Case No.25 of 2016. The J.Drs filed an application under Sec.47 of C.P.C. stating, inter alia, that they were the tenants under the D.Hrs. The tenancy was created long back by means of a registered lease deed no.4565 dated 28.11.1946 for a period of 21 years. The lessee was authorized to construct house, show room, garage, workshop, out building and other rooms to run the business. At the time of lease, four dilapidated rooms were existing over the suit land. The J.Drs. invested huge amount and made substantial construction over the land. The D.Hrs suppressed the existence of the structure standing over the suit land. The D.Hrs were required to pay the price of the said structure to the J.Drs. The same amounts to practicing of fraud not only on the J.Drs, but also on the Court and as such the judgment is a nullity. Thereafter J.Drs. filed an application to permit them to adduce oral evidence to prove that fraud has been practiced. The D.Hrs filed objection to the same. By a laconic order dated 24.11.2016 the learned executing court came to hold that refusal to adduce oral evidence in establishing the plea of the J.Drs. amount to violation of principle 3 of natural justice. Held so, it permitted the J.Drs to adduce evidence and allowed the application.
3. Heard Mr.S.P.Mishra, learned Senior Advocate along with Mr.L.K.Moharana, learned Advocate for the petitioners and Mr.M.K.Mishra, learned Senior Advocate along with Mr.P.K.Das, learned Advocate for the opposite parties.
4. Mr.S.P.Mishra, learned Sr.Advocate for the petitioners argued with vehemence that the learned executing court cannot go behind the decree. The scope of application under Sec.47 C.P.C. is limited to the extent of execution, discharge and satisfaction of the decree. The impugned order amounts to retrial of the suit. Referring to paragraph-3 of the plaint, he submitted that the plaintiff has not suppressed any fact. The allegation of fraud is indefinite and vague. He relied on the decisions of the apex Court in the case of Breakwel Automotive Components (India) Private Limited Vrs. P.R.Selvam Alagappan, (2017) 5 SCC 371 and Punjab State Civil Supplies Corporation Ltd. and another Vrs. M/s.Atwal Rice and General Mills represented by its Partners (Civil Appeal No.8943 of 2017 disposed of on 11.7.2017).
5. Per contra, Mr.M.K.Mishra, learned Senior Advocate for the opposite parties submitted that the defendants made huge investment and constructed the structures over the suit land. The said fact was suppressed. Suppression of fact amounts to playing fraud on the court and as such the judgment is nullity. He further contended that this Court should refrain from rendering any findings in the application filed by the J.Drs under Sec.47 C.P.C., since the same is sub-judice. He relied on the decisions of the apex 4 Court as well as of this Court in the case of S.P.Chengalvaraya Naidu (dead) by L.Rs., Vrs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, Ram Chandra Singh Vrs. Savitri Devi and others , 2003 (4) CCC 194 (SC), M/s.Century Textiles Industries Ltd. Vrs. Deepak Jain and another, 2009(I) OLR (SC)-731, Sayed Yakoob Vrs. K.S.Radha Krishnan and others, AIR 1964 SC 477, Umesh Chandra Mishra Vrs. State Bank of India and another, 1986 (II) OLR-89, Surendranath Pandit and another Vrs. Harekrishna Pandit and others, 2005 (II) OLR-623 and Dibakar Patra Vrs. Jatadhari Mishra and others, 2005 (II) OlR-628.
6. The scope of Sec.47 CPC is well-known. In M/s Brakewel Automotive Components (India) Pvt. Ltd. v. P.R. Selvam Alagappan, AIR 2017 SC 1577, the apex Court held an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. It was further held that the purview of scrutiny under Sec. 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness. The exercise of power under Sec.47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty 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 inexecutable after its passing. None of the above 5 eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand.
7. In Punjab State Civil Supplies Corporation Ltd. and another (supra), taking a cue from the earlier decision in the case of Kiran Singh and others Vrs. Chaman Paswan and others, AIR, 1954 SC 340, the apex Court held that it is a well-settled principle of law that the executing court has to execute the decree as it is and it cannot go behind the decree. The executing court cannot hold any kind of factual inquiry which may have the effect of nullifying the decree itself but it can undertake limited inquiry regarding jurisdictional issues which goes to the root of the decree and has the effect of rendering the decree nullity. On scrutiny of the application filed by the J.Drs with a view to find out as to whether they or anyone out of them were legally sustainable, the apex Court held that having regard to the nature of objections, it is clear that such objections were not capable of being tried in execution proceedings to challenge the award. It is for the reason that they were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award. None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree, which was not permissible in law. An inquiry into the facts, which ought to have been done in a suit or in an appeal arising out of the suit or in an proceedings under Sec.34 of the Arbitration and Conciliation Act, cannot be held in execution proceedings in relation to such award/decree.
8. On the anvil of the decisions cited supra, the instant case may be examined. The plaintiff instituted the suit for eviction, 6 arrear house rent and damages. The suit was decreed. The defendants unsuccessfully challenged the same before the learned District Judge, Cuttack in R.F.A.No.10 of 2016, which was eventually dismissed. The D.Hrs levied Execution Case No.25 of 2016. The J.Drs. filed an application under Sec.47 C.P.C. stating therein that their predecessors had invested huge amount of money and constructed the structures over the same. The said fact was suppressed by the D.Hr. The submission of learned Senior Advocate for the J.Drs. that the D.Hrs. had obtained the decree by playing fraud on Court is difficult to fathom. By no stretch of imagination, it can be said that the original plaintiff had played fraud with the Court and obtained a decree. The grounds set out in the application for adduction of evidence do not constitute fraud. As held by the apex Court in the case of Punjab State Civil Supplies Corporation Ltd. and another (supra), the executing court cannot hold any kind of factual inquiry, which may have the effect of nullifying the decree itself, but the executing court can undertake limited inquiry regarding jurisdictional issues which goes to the root of the decree and has the effect rendering the nullity. None of the objections raised by the J.Drs were not in relation to jurisdiction of the court affecting the root of very passing of the decree. The learned executing court travelled beyond its jurisdiction in allowing the J.Drs to lead evidence. The order dated 24.11.2016 is a laconic one. Merely using the words "natural justice" is not suffice. This Court fails to understand as to how there will be infraction of principles of natural justice in the event the J.Drs are not allowed to adduce evidence. An inquiry into the facts, which ought to have done in a suit or an appeal arising out of the suit cannot be held in execution proceedings.
79. In S.P.Chengalvaraya Naidu (dead) by L.Rs, (supra), the apex Court held that judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or in the highest court has to be treated as a nullity by every court. It can be challenged in any court even in collateral proceedings. As held above, no fraud has been played on Court by the J.Dr. The judgment is distinguishable on facts.
10. In Sayed Yakoob (supra), the Constitution Bench of the apex Court had an occasion to deal with the limits of the jurisdiction of the High Court under Article 226 of the Constitution. The instant case is filed under Article 227 of the Constitution. Thus, the judgment is distinguishable on facts.
11. In Ram Chandra Singh (supra), the apex Court held that once a judgment and decree has been obtained by practicing fraud on the court, it is trite that the principles of resjudicate shall not apply. The same is also distinguishable on facts.
12. In M/s.Century Textiles Industries Ltd. (supra), the apex Court had an occasion to deal with the application under Sec. 47 of C.P.C. and that Sec.47 contemplates that all questions arising between the parties to the suit in which the decree was passed, or their representations, and relating to the execution, discharge or satisfaction of the decree, have got to be determined by the Court executing the decree and not by a separate suit. There is no quarrel over the said proposition of law.
13. In Umesh Chandra Mishra (supra), a Bench of this Court held that the executing court cannot go behind a decree 8 unless it is a nullity for inherent lack of jurisdiction or passed against dead person or obtained by fraud, but the same is not the case here.
14. The case of Surendranath Pandit (supra) is distinguishable on facts.
15. In the wake of aforesaid, the impugned order is quashed. The learned executing court shall decide the application filed by the J.Drs under Sec.47 C.P.C. within a period of two months from today keeping in view the enunciation of law laid down by the apex Court in the case of Breakwel Automotive Components (India) Private Limited (supra). The petition is allowed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 30th August, 2017/CRB