Bombay High Court
Hifzul Kabir S/O Hifzul Karim vs Shri. Sandip S/O Maroti Donge And Others on 4 January, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO.55 OF 2018
Hifzul Kabir s/o Hifzul Karim,
Aged about 74 years,
Occ: Business,
R/o New Add: Flat No.102,
Aarzoo Apartments,
Opp. Ayyappa Mandir,
Gorewada Ring Road, Nagpur.
Old Add: 8 Lokhande Layout,
Lumbini Nagar, Mankapur,
Nagpur. ....... APPLICANT
...V E R S U S...
1] Shri Sandip s/o Maroti Donge,
Aged about 34 years,
Occupation: Service,
Resident of Qrter No.15,
WCL Colony, Chandrapur.
2] Laxmiratan Builders Pvt. Ltd.,
A Company duly registered under
the Companies Act having its office
at 123, Shree Ratan Complex,
Near Agyaram Mandir, Ganeshpeth,
Nagpur - 440 016 through its
Managing Director, Shri Sagar Ratan.
3] Shri Sagar Ratan,
Aged Major,
Occupation: Business.
4] Smt. Rajni w/o Sagar Ratan,
Aged Major,
Occupation: Business.
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Both the respondents No.3 & 4 are the
Directors of Laxmiratan Builders Pvt. Ltd.,
Residents 123, Shree Ratan Complex,
Near Agyaram Mandir,
Ganeshpeth, Nagpur-440 016. ....... RESPONDENTS
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Shri Masood Shareef, Advocate for Applicant.
Shri Amit R. Prasad, Advocate/APP for Respondent 1.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 22.12.2018
DATE OF PRONOUNCING THE JUDGMENT : 04.01.2019
JUDGMENT:
1] Heard Shri Masood Shareef, the learned Counsel for the applicant and Shri Amit Prasad, the learned Counsel for respondent 1.
2] The applicant - is the defendant 1 in Special Civil Suit 440/2017 which is instituted by respondent 1 - plaintiff seeking decree of declaration, possession and permanent injunction.
The defendant 1 is aggrieved by the rejection of application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 ('Code') by the order impugned dated 16.03.2018 passed by the 6th Joint Civil Judge, Senior Division, Nagpur. The contention of the defendant 1 ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:35 ::: 3 cra55.18.J.odt is that the suit is barred by the provisions of law and is manifestly vexatious and merit-less, which contention is vehemently rebutted by the plaintiff.
3] Shri Masood Shareef, the learned counsel for the defendant 1 and Shri Amit Prasad, the learned counsel for plaintiff are in unison that while considering the application under Order VII, Rule 11, only the plaint averments holistically read and understood would be decisive and it would not be permissible to consider the pleadings in the written statement or any application which may be preferred by the defendant. This position of law is settled, and it would be apposite to consider the plaint averments to ascertain whether the averments taken at face value do not disclose cause of action or suggest that the suit is barred.
4] The plaintiff claims to be the owner of plot admeasuring 1500 sq.ft. forming part or portion of land assigned Khasra 120-1 situated at Mouza Dhaba, Tahsil and District Nagpur.
5] The plaintiff contends that Santoshrao Bhongade was ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:35 ::: 4 cra55.18.J.odt the original owner of land admeasuring 28.07 acres assigned Khasra 120-1 and pursuant to his death, his four sons namely Devrao, Vinayakrao, Anandrao and Vitthalrao inherited the said land.
The plaintiff then avers that Vinayakrao sold 1 acre land to one Niwara Co-operative Housing Society Limited by and under registered sale-deed dated 03.11.1990. The said society carved out a layout and sold plot 12 admeasuring 1500 sq.ft. to Smt. Rajni Gatfane vide sale-deed dated 12.04.2001. The Nagpur Improvement Trust regularized the said plot in the year 2009 and thereafter Smt. Rajni Gatfane sold the said plot 12 to Smt. Preeti Gariye vide registered sale-deed dated 24.08.2011 and from Smt. Preeti Gariye the plaintiff purchased the said plot 12 by and under registered sale-deed dated 12.11.2012.
The plaintiff then avers that in October 2015, he came to know that the defendant 1 has encroached upon 1 acre land (the reference is to 1 acre land sold by Vinyakrao to Niwara Co-operative Housing Society Limited) and a sign board is installed on land Khasra 120/1 declaring that land Khasra 120-1, 120-5, 120-6, 120-7, 131-1, 131-2 and 132-2-3 is owned by defendant 1 as per the judgment and decree of the High Court, ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:35 ::: 5 cra55.18.J.odt Nagpur Bench and the Supreme Court of India.
The plaintiff then avers that inquiries revealed that sale-deed dated 16.06.2015 qua the said land is executed in favour of defendant 1 in view of the order passed by the High Court in First Appeal 790/1991 which is confirmed by the Hon'ble Supreme Court of India in Civil Appeal 6637/1994.
The plaintiff then avers that neither the defendant 1 nor Shri Vinayakrao Bhongade and his brothers disclosed to the Trial Court, the High Court or the Supreme Court of India that Vinayakrao executed sale-deed dated 13.11.1990 in favour of Niwara Co-operative Housing Society Limited of 1 acre land out of Khasra 120/1. The plaintiff avers that in view of the suppression of the factum of execution of sale-deed of 1 acre by Vinayakrao in favour of Niwara Co-operative Housing Society Limited, the judgment and decree passed by the High Court in First Appeal 790/1991 is not binding on the plaintiff nor is binding the confirmatory judgment of the Hon'ble Supreme Court of India in Civil Appeal 6637/1994. The plaintiff claims a declaration that the judgment and decree of the High Court and the Hon'ble Supreme Court of India and the orders in execution proceedings and the sale-deed dated 16.06.2015 do not bind the plaintiff to the extent ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:35 ::: 6 cra55.18.J.odt of plot 12 admeasuring 1500 sq.ft. which is portion of Khasra 120/1. The plaintiff further seeks a declaration that the sale-deed dated 16.06.2015 is obtained by suppressing material facts and practicing fraud. The plaintiff further seeks decree of possession qua the suit plot admeasuring 1500 sq. ft.
In the suit plaint, the plaintiff has narrated the history of the litigation, which may now be noted. The plaintiff states that the original owner Santoshrao entered into an agreement of sale dated 10.02.1982 with 11 persons including the defendant 1 and pursuant to the said agreement executed two separate sale-deeds dated 24.05.1982 and 28.06.1982 of 5 acres each. The area admeasuring 10 acres covered by the two sale-deeds was renumbered Khasra 123/3 and 120/4 and the remaining area of 18.07 acres was assigned Khasra 120/1, 120/5, 120/7, 131/1, 131/2 and 131/2/3. The defendant 1 and 10 others instituted Special Civil Suit 263/1985 against Santoshrao Bhongade for specific performance of contract as regards the remaining land admeasuring 18.07 acres which suit was dismissed by the Trial Court. First Appeal 790/1991 challenging the judgment and decree of dismissal was allowed by this Court by judgment and decree dated 26.04.1993, which was confirmed by the Hon'ble ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:35 ::: 7 cra55.18.J.odt Supreme Court of India. The plaintiff then avers that the decree holders other than defendant 1 executed deed of assignment in favour of defendant 1. In view of the deed of assignment the defendant 1 initiated execution proceeding 156/1995 and the Executing Court directed the judgment debtor to execute and register the sale-deed in favour of defendant 1. The plaintiff then avers that pursuant to the order in the execution proceedings sale-
deed dated 16.06.2015 came to be executed in favour of defendant 1. In paragraphs 12 to 17 of the suit plaint the substratum of the averment is that since the factum of execution of sale-deed qua 1 acre out of land survey 120-1 by Vinayakrao in favour of Niwara Co-operative Housing Society Limited and the factum of the said society then executing sale-deed qua the said plot 12 in favour of Rajni Gatfane is suppressed from the High Court and the Hon'ble Supreme Court of India, neither the judgments of the High Court and the Supreme Court of India nor the sale-deed executed pursuant to the order in the execution proceedings binding on the plaintiff.
6] The learned counsel for the applicant Shri Masood Shareef would submit that even if the plaint averments are taken ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 8 cra55.18.J.odt at face value no cause of action is disclosed. Shri Shareef would further submit that purchasers of other plots carved out by Niwara Co-operative Housing Society Limited approached the Executing Court under section 47 of the Code ventilating similar grievance, and the objection to execution of the judgment and decree is rejected. Shri Shareef would then submit that even if it is assumed, arguendo that the plaint does disclose cause of action, separate civil suit is barred, in view of the provisions of section 47 and Order XXI, Rule 101 of the Code. Per contra, Shri Amit Prasad would submit that the plaint is founded on an assertion that the defendant 1 practiced fraud and it is always permissible to approach the Civil Court to seek a decree of declaration that the judgment, even the judgment of the Highest Court, is not binding, notwithstanding that such a plea could have been taken in an application under section 47 of the Code.
7] Several decisions are cited by Shri Masdood Shareef and Shri Amit Prasad to buttress the respective submission.
Shri Masood Shareef invites my attention to the decision in Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported in AIR 1998 SC 1754 and in particular to paragraph 10 ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 9 cra55.18.J.odt thereof in which the Hon'ble Supreme Court observes thus:
10. It is true that R. 99 of O. 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.
When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 10 cra55.18.J.odt obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
The submission is that the plaintiff, who claims to have been dispossessed in execution of the decree has the remedy to approach the Executing Court and a separate suit is clearly barred. Shri Masood Shareef then contends that the decision in N.S.S. Narayana Sharma and others v. M/s. Goldstone Exports (P) Ltd. and others reported in AIR 2002 SC 251 is on similar lines. Shri Masood Shareef then relies on the decision of the Supreme Court in Shreenath and another v. Rajesh and others ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 11 cra55.18.J.odt reported in AIR 1998 SC 1827 to submit that the only remedy available to the plaintiff is to approach the Executing Court.
The next decision cited is that of the Madras High Court in Vijayalakshi Leather Industries (P) Ltd. Chennai v. K. Narayanan and others reported AIR 2003 Madras 203 and the submission is that since the plaintiff 1 is claiming through the transferee of the judgment debtor is equally bound by decree. Shri Masood Shareef then relies on Ashan Devi and another v.
Phulwasi Devi and others reported in AIR 2004 SC 511 and in particular to paragraphs 25 to 28 thereof which read thus:
25. In interpreting the provisions of O. XXI R. 97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of.
Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The Legislature purposely amended provisions in O. XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram [1985 (1) SCC 61].
26. The High Court in the impugned judgment dated 23.4.2001 has construed the word "dispossessed" under O. XXI R. 99 of the Code to mean actual and physical dispossession.
The reasoning adopted is that if the expression ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 12 cra55.18.J.odt 'dispossessed' is thus not narrowly construed, 'anybody apprehensive of dispossession or anybody claiming right although not actually dispossessed can come within the purview of R. 99 and there would be flood-gate and a decree-holder who obtained a decree by due process of law would be frustrated in not getting the fruit of the decree'.
27. There is fallacy in the above reasoning. As has been held by this court in the case of Brahmdeo Chaudhary (1997 AIR SCW 685 (supra), a third party resisting or obstructing the execution of the decree can also seek adjudication of his rights under O. XXI R. 97 in the same way as the decree-holder. If that be so, it seems illogical that the third party which complains of actual dispossession because of the delivery of possession in execution to the decree-holder should not be allowed to claim adjudication of his rights through the executing court. An interpretation of the provision which promotes or fulfils the object of the amended provisions of the Code of curtailing litigation, has to be preferred to the one which frustrates it. The High Court also lost sight of the fact that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere physical absence of the third party at the time of execution of the decree was not a relevant fact to reject application under O. XXI R. 99 of the Code. From the trend and ratio of decisions of this Court surveyed above, if the objectors would have been present at or near the vacant land at the time of execution of a decree and had offered obstruction or resistance to the execution, they would have been entitled to seek adjudication of their rights and claims through the executing court under O. XXI R.
97. On the same legal position and reasoning even though the objectors were not in actual and physical possession of the vacant land, but as a result of delivery of possession of the land through Nazir to the decree-holder, lost their right and control over the land to put it to their use, they will have to be ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 13 cra55.18.J.odt treated to have been "dispossessed" within the meaning of O. XXI R. 99 of the Code.
Such interpretation would fulfil aim and object of the amended provisions of the Code by allowing adjudication of disputes of title between the decree-holder and the third party in the executing court itself without relegating them to an independent litigation.
28. In view of the discussion aforesaid, in our opinion, the executing court was well within law in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the objectors under O. XXI R. 99 of the Code and decided the other issues on merits of their claims arising between the decree-holder and the objectors.
Again, the submission is that the plaintiff 1 is claiming through the judgment debtor and to have been dispossessed in execution of the decree and therefore, has the remedy to approach the Executing Court. The next decision cited is Raj Narain Sarin (dead) through L.RS. and others v. Laxmi Devi and others reported in (2002) 10 SCC 501 and the submission is that if on meaningful reading of the plaint, it manifestly appears to be vexatious and merit-less, and a clear right to sue is not discernible, the Court ought not to be slow to exercise power under Order VII, Rule 11 of the Code since frivolous litigation shall have to be nipped in the bud. Shri Masood Shareef then refers to ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 14 cra55.18.J.odt Harnandrai Badridas v. Debidutt Bhagwati Prasad and others reported in (1973) 2 SCC 467 to buttress the submission that even if the execution proceeding is disposed of the plaintiff is entitled to approach the Executing Court in appropriate proceeding and he cannot be permitted to file a separate suit.
The next decision cited is Jitendra Narottamdas Sheth and others v. Indradeep Co-operative Housing Society Ltd and others reported in AIR 1993 Bombay 302 and the submission is that even the suit can be treated as execution application and transferred to the appropriate forum. Shri Shareef then relies on the Division Bench decision of the Calcutta High Court in Pioneer Spring & Steel Concern (P) Ltd. v. Delta International Ltd. and another reported in 2001 (1) Civil LJ 866. In the said case the suit was filed by the plaintiff contending that he was in lawful possession of the suit property. The case of the plaintiff was that the decree of possession qua the portion occupied by the plaintiff is invalid, null and void and is not binding and enforceable against the plaintiff. The learned Single Judge rejected the plaint holding that the questions raised in the suit could be exclusively dealt with only in execution proceeding in terms of section 47 of the Code.
The plaintiff contended before the Division Bench that since the ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 15 cra55.18.J.odt decree is challenged inter alia on the ground of fraud, the issue raised could be adjudicated only in a suit and not in an application filed under section 47 of the code. The Division Bench upheld the rejection of plaint by the learned Single Judge and observed thus:
7. We have given our thoughtful consideration to the aforesaid rival contentions. In our considered view the points raised by the appellant in the Suit are such which can appropriately and effectively be dealt with and adjudicated upon in execution proceedings by the executing Court in terms of section 47 read with Order 21 Rule 97 and other related provisions of CPC. We are of the view that the suit was not maintainable and the learned single Judge was right in rejecting the plaint. We are not going into the detailed analysis, consideration or examination of various points individually urged before us by the learned Advocates of the parties.
Including any aspect relating to alleged fraud in obtaining the decree, the applicability of the provisions of West Bengal premises Tenancy Act 1956 to the lease in question, or the terms contained in the Lease Deed executed on 10th July, 1967 between the predecessor-in-interest of respondent No. 1 and the predecessor-in-interest of respondent No. 2, particularly the clause relating to the earlier determination of that lease notwithstanding the fact that it was granted for a period of 21 years. We are also not going into any question relating to the fact as to whether the lease as executed had any provision for permitting the lessee to induct a sub-tenant with the previous permission of the landlord or that the appellant was actually inducted as a sub-tenant by respondent No, 2 with the previous permission in writing of respondent No. 1. We are leaving all these questions open because these are the very questions which may arise for ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 16 cra55.18.J.odt consideration, if they are relevant and material to the subject matter of controversy between the parties and if these questions, or anyone of them are applicable to the issues involved in the proceedings between the parties. We wish to make it absolutely clear that we are not entering into any debate or discussion about the merits of such questions nor are we expressing our views regarding the same. We even refrain from commenting whether the aforesaid questions are or would be relevant or applicable in the proceedings or not.
Shri Masood Shareef then relies on the following observations of the Hon'ble Supreme Court in Meghmala and others v. G. Narasimha Reddy and others reported in (2010) 8 SCC 383.
2. Judicial pronouncements unlike sand dunes are known for their stability/finality. However, in this case, in spite of the completion of several rounds of litigation upto the High Court, and one round of litigation before this Court, the respondents claim a right to abuse the process of the Court with the perception that whatever may be the orders of the High Court or this Court, inter se parties the dispute shall be protracted and will never come to an end.
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 17 cra55.18.J.odt fraud as the order so obtained is non est. Shri Masood Shareef would submit that the defendant 1 has, after protracted litigation spanning over three decades, been able to enjoy the fruits of the decree. The plaintiff is concededly claiming ownership through Niwara Co-operative Housing Society Limited and therefore, Shri Vinayakrao, who admittedly is a party to the litigation. The judgment and decree or the order in execution pursuant to which the sale-deed is executed is not assailed by the said society. The suit is clearly vexatious, is the submission.
Shri Masood Shareef then relies on the decision of the Hon'ble Apex Court in Harjas Rai Makhija (dead) through legal representatives v. Pushparani Jain and another reported in (2017) 2 SCC 797 and in particular paragraph 22 thereof which read thus:
22. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC.
However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 18 cra55.18.J.odt evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4-10-1999.
8] Shri Masood Shareef would submit that except for bald statement which appears in paragraph 13 of the suit plaint, the plaint makes no attempt to explain or particularize the fraud.
The edifice of the suit plaint is the assertion that the factum of execution of sale-deed qua 1 acre by Vinyakrao in favour of Niwara Co-operative Housing Society Limited was not disclosed to the High Court or the Hon'ble Supreme Court. Shri Shareef submit that even if this submission is taken at face value, no cause of action is demonstrated in as much as concededly the sale-deed executed by the judgment debtor in favour of the said society was during the pendency of the litigation and the fact that the judgment debtor made no discloser that he executed such sale-
deed during the pendency of the litigation would be of no relevance in view of the doctrine of lis pendens. Shri Masood Shareef submits that even if such a discloser had been made, it would have no relevance much less bearing on the adjudication.
::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 :::19 cra55.18.J.odt 9] Shri Amit Prasad would rely on the decision of a learned Single Judge of this Court Lalitabai v. Pundlik Dayaram Rangari (by L.Rs.) reported in AIR 2007 (2) Bombay R 386 to contend that notwithstanding that remedy under section 47 of the Code is available a separate suit would be maintainable.
Shri Amit Prasad would then invite my attention to the decision in Savitribai A. Salvi v. Suman Navgire and others reported in 2009(5) Mh.L.J. 387 to contend that the jurisdiction of the code under section 47 is narrow.
Shri Amit Prasad, would also rely on the decision of the Hon'ble Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University and others reported in 2001 SC 2552 and in particular 22 and 23 thereof which read thus:
22. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate Court is not only entitled but obliged under law to go into the questions of facts as well like trial court apart from questions of law. Powers of second appellate Court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 :::
20 cra55.18.J.odt 1976 with effect from 1-2-1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act, have been further narrowed down as now in such an appeal only substantial question of law can be considered. The powers of this Court under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this Court. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and much wider as there the court can go into correctness, legality or propriety of the order and regularity of proceeding of inferior court. It does not mean that in each and every case the revisional court is obliged to consider question of facts as well like a first appellate Court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case.
Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge.
Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.
23. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 21 cra55.18.J.odt of such a provision of law or the law was promulgated making a decree in executable after its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.
Careful reading of the decision in Dhurandhar Prasad Singh v. Jai Prakash University and others reported in 2001 SC 2552 would reveal that the Hon'ble Apex Court has held that while the power of the Court under section 47 is different and narrower then the appellate or the revisional or review power, the Executing Court can allow objection under section 47 to the executability of the decree if it is found that the same is void ab initio and nullity.
The next decision relied on by Shri Amit Prasad is Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 22 cra55.18.J.odt others reported in 1970(1) SCC 670 and in particularity paragraphs 6 and 7 thereof which read thus:
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 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.
In Jnanendra Mohan Bhaduri & Anr. v. Rabindra Nath Chakravarti, the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 23 cra55.18.J.odt without jurisdiction.
Shri Amit Prasad then brings several decisions to my notice, which are not discussed since the decisions are cited to buttress the submission that the defence cannot be looked into while considering application under Order VII, Rule 11, which is a settled legal position.
Shri Amit Prasad then relies on the decision of the Supreme Court in Indian Bank v. Satyam Fibres (India) Pvt.
Ltd. reported in (1996) 5 SCC 550 and in particular on paragraphs 20, 22 and 23.
20. By filing letter No.2775 of 26-8-1991 along with the Review Petition and contending that the other letter, namely, letter No.2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea before the Commission that its judgment dated 16-11-1993, which was based on letter No. 2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as letter No.2776 dated 26-8-1991 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the Authorities, be they Constitutional, Statutory or Administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as Fraud and Justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 24 cra55.18.J.odt that Fraud and deceit defend or excuse no man (Fraus et dolus nemini patrocinari debent).
22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See: Benoy Krishna Mukherjee vs. Mohanlal Goenka; Gajanand Sha vs. Dayanand Thakur; Krishna Kumar vs. Jawand Singh;
Devendra Nath Sarkar vs. Ram Rachpal Singh; Saiyed Muhammad Raza vs. Ram Saroop; Bankey Behari Lal vs. Abdul Rahman; Lekshmi Amma Chacki Amma vs. Mammen Mammen.) The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton vs. Sitaram Kumar) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd.Chaudhary vs. Debendra Pd. Singh; Tara Bai vs. V.S. Krishnaswamy Rao.) ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 25 cra55.18.J.odt The decision is an authority for the proposition that the judgment and decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law and such judgment and decree - by the first Court or the Highest Court has to be treated as a nullity by every Court, whether superior or inferior and can be assailed in any Court even in collateral proceedings.
10] Order VII, Rule 11 of the Code reads thus:
11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;
[(f) where the plaintiff fails to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 26 cra55.18.J.odt supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] Rule 11(a) entails rejection of plaint which does not disclose a cause of action while sub-rule (d) is attracted if the suit appears from the statement in the plaint to be barred by any law.
Elaborate submissions are advanced on the scope and ambit of sub-rule (d) and its applicability to the factual matrix.
Shri Masood Sharref contends that since the question raised in the suit is capable of determination and adjudication in an application under section 47 of the Code, a separate suit is barred, which submission is stoutly rebutted by Shri Amit Prasad. Shri Masood Shareef has also elaborately addressed this Court on the import and implication of Rule 101 of the Code and the submission is that since the plaintiff claims to have been dispossessed during execution, the question must necessarily be determined by the Court dealing with an application under Rule 97 or Rule 99 and not by a separate suit. However, Rule 102 provide that nothing in Rule 98 and 100 shall apply to resistance or obstructions in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 27 cra55.18.J.odt property after the institution of the suit in which the decree was passed or to the dispossession of any such person. The plaintiff is tracing his title to Vinayakrao, who even as per the plaint averment, sold 1 acre land in favour of Niwara Co-operative Housing Society Limited on 03.11.1990 during the pendency of Special Civil Suit 263/1983. The case of the plaintiff is that Niwara Co-operative Housing Society Limited carved out a layout and plot 12 was transferred in favour of Smt. Rajni Gatfane who sold the same to Preeti Gariye who in turn sold the plot to the plaintiff by registered sale-deed dated 12.11.2012. In view of this admitted position, and apart from the fact that Rule 101 presupposes that an application under Rule 97 or Rule 99 is preferred, the plaintiff could have secured no relief under Rule 98 or 100. The other submission that the question raised in the suit could have been determined in an application under section 47 of the Code and not by way of separate suit need not be subjected to any decisive observation since, for reasons spelt out hereinafter, I am inclined to hold that on a holistic reading of the suit plaint no cause of action is disclosed.
11] Order VI, Rule 4 of the Code of Civil Procedure reads ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 28 cra55.18.J.odt thus:
4. Particulars to be given where necessary.--
In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
12] The only averment touching fraud is found in paragraph 13 of the suit plaint which reads thus:
13. It is further submitted that the name of Niwara Co-operative Housing Society has been mutated in the property card of City Survey no.54 vide Ferfar no. 2298/2010. That thereafter, the name of Smt. Rajani Girishra Fatfane has also been mutated in the property card City Survey no. 54 vide Ferfar no. 2298 dated 27/04/2010. That thereafter the name of Preeti Rahul Gariye has also been mutated in the property card of City Survey no.54 vide Ferfar no. 5290. That also the name of the plaintiff is also mutated in the property card of City Survey no.54. Vide Ferfar no.
5291. It is further submitted that the property card of the aforesaid property is accessible to the general public and the defendant no.1 cannot say that he do not have any knowledge about mutation of names of the aforesaid erstwhile owners of the suit property including the name of the plaintiff in the property card. Thus from the above fact, it is clear that the defendant no.1 has deliberately suppressed the aforesaid material fact from the Court of Law and obtained Order of execution and registration of sale deed of aforesaid property by playing fraud upon the Court ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 29 cra55.18.J.odt of Law.
Concededly, Special Civil Suit 263/1985 instituted by the defendant 1 and others against Santosh Bhongade - the father of Vinayakrao was pending when Vinayakrao - one of the sons of Santosh, executed sale-deed of 1 acre of land in favour of Niwara Co-operative Housing Society Limited on 13.11.1990. The plaintiff contends that discloser of the factum of the execution of the sale-deed dated 13.11.1990 would have persuaded the High Court and the Hon'ble Supreme Court to take a different view and therefore, the factum of execution of the sale-deed of 1 acre of land in favour of Niwara Co-operative Housing Society Limited was suppressed. It is difficult to appreciate much less accept the said submission. It is conceded in the suit plaint that out of total land admeasuring 18.08 acres which was the subject-matter of Special Civil Suit 263/1983, during the pendency of the suit Vinayakrao sold 1 acre from Khasra 120/1 in favour of Niwara Co-operative Housing Society Limited. This transaction is clearly hit by the doctrine of lis pendens. The discloser or suppression of the transaction would have had no relevance or bearing to the adjudication. Since the suit plaint is constructed on the edifice of the submission that the suppression of the sale of 1 acre by ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 30 cra55.18.J.odt Vinayakrao to Niwara Co-operative Housing Society Limited during the pendency of the Special Civil Suit 263/1983 renders the judgment and decree of the High Court which is confirmed by the Hon'ble Supreme Court devoid of binding force qua the plot 12 admeasuring 1500 sq.ft. purchased by the plaintiff in the year 2012, the irresistible conclusion must be that the plaint does not disclose any cause of action. It is indeed the duty of every Court to read the plaint meaningfully and holistically and to nip the litigation in the bud by rejecting the plaint if it is discernible that the suit claim is manifestly frivolous or vexatious or if no cause of action is disclosed.
13] In my considered opinion, the suit plaint does not disclose any cause of action and is liable to rejected under Order VII, Rule 11(a) of the Code. Any observation made in this judgment shall not preclude the plaintiff from approaching the Executing Court under section 47 or under any other provision of the Code if any question which falls for determination under the said provision is raised and the observations in this judgment shall be construed to have been made only in the light and context of the plaint averments.
::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 ::: 31 cra55.18.J.odt 14] The order impugned is set aside. 15] The plaint in the Special Civil Suit 440/2017 is rejected. 16] Civil revision application is allowed. JUDGE NSN ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:36 :::