Allahabad High Court
Smt. Jaishree Devi And Another vs Ghanshyam Das And 2 Others on 21 August, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
'AFR'
RESERVED
Case :- CIVIL REVISION No. - 40 of 2017
Revisionist :- Smt. Jaishree Devi And Another
Opposite Party :- Ghanshyam Das And 2 Others
Counsel for Revisionist :- Anil Kumar Mehrotra
Counsel for Opposite Party :- Ashwani Kumar Sachan; Saurabh Sachan
Hon'ble Manoj Misra, J.
1. The present revision has been filed against the order dated 18.11.2016 passed by the Special Judge (SC/ST)/Additional District Judge, Gautam Budh Nagar rejecting Application No. 153-Ga filed by the revisionists to recall /set aside the order dated 16.09.1997 passed in Execution Case No. 24 of 1997 with a further prayer to substitute the revisionists in place of deceased-decree-holder (Raghuraj Singh).
2. The facts giving rise to the present revision are as follows:
One, Raghuraj Singh (hereinafter referred to as decree-holder) sought enhancement of compensation by way of a reference under Section 18 of the Land Acquisition Act, 1906, which came to be registered as LAR No. 137 of 1995, upon which, an award dated 31.05.1995 was passed thereby providing additional compensation of about Rs.75,000,00/- To execute the award, the decree-holder filed Execution Case No.740 of 1995 against the opposite parties 2 and 3. In this execution case, an application was moved by Ghanshyam Das (opposite party no.1) for substitution in place of decree-holder on the strength of an assignment deed dated 27.12.1995 (registered on 04.01.1996). Before the substitution application could be dealt with, the Execution Case No.740 of 1995 was dismissed for non-prosecution vide order dated 24.01.1997.
Thereafter, on 12.03.1997, a second Execution Case No. 24 of 1997 was filed by the decree-holder. In this second execution case, the opposite party no.1 again filed an application for substitution in place of the decree-holder on the strength of the aforesaid assignment deed. On this substitution application, on 16.09.1997, in the presence of counsel for the parties including counsel for the decree-holder, on the basis of no objection given by the decree-holder to allow the substitution application, by placing reliance on a decision of the Apex Court in the case of U.P. Jal Nigam, Lucknow v. Kalra Property (Pvt. Ltd.) : AIR 1996 SC 1170, the substitution application was allowed and the execution application was amended accordingly by substituting Ghanshyam Das (opposite party no.1) in place of Raghuraj Singh the original decree-holder.
Soon thereafter, on 12.10.1997, Raghuraj Singh, the original decree-holder, was murdered where upon a criminal case bearing Case Crime No. 187 of 1997 at P.S. Anoop Shahr, District Bulandshar was registered in which Pankaj Singh, son of late Raghuraj Singh, was made an accused. It appears that Pankaj Singh was tried and acquitted. In the meantime, on 27.05.2000, Pankaj Singh moved an application in the pending execution proceeding to strike off the name of Ghanshyam Das (the opposite party no.1) and to substitute his own name in place of his late father Raghuraj Singh. The said application came to be rejected by order dated 28.11.2008. Against the order dated 28.11.2008, Civil Revision (Defective) No. 52 of 2009 was filed before this Court by Pankaj Singh, which came to be dismissed vide judgment and order dated 24.05.2010.
While dismissing the revision preferred by Pankaj Singh, this Court had observed as follows: "As per oral and documentary evidence brought on record the execution deed of transfer is admitted to the revisionist. At the instance of his father-Raghuraj Singh on filing of written application and affidavit, the executing court has replaced Raghuraj Singh and substituted Ghanshyam Das as decree-holder vide order dated 16.07.1997. It is noteworthy that Raghuraj Singh was alive on this date. On 04.08.1997, he himself made an application supported with an affidavit before the executing court spelling out his intention that name of Ghanshyam Das be placed as an executor of the decree in his place. The executing court, after hearing the parties, taking statement of the decree-holder, passed a formal order on 16.09.1997. This order has remained unchallenged till date. The learned executing court has rightly held that the revisionist-Pankaj Singh was not entitled to be substituted as decree-holder"
Against the judgment and order of this Court a special leave to appeal petition was filed which was rejected by the Apex Court.
Upon dismissal of claim set up by Pankaj Singh, the revisionists, who are mother and sister respectively of Pankaj Singh, on 07.09.2011, filed application (paper no.153 Ga), purportedly, under Order 22 Rule 12 read with Section 151 C.P.C., to recall/ set aside the order dated 16.09.1997 and to substitute them in place of Raghuraj Singh for pursuing the execution proceeding of Execution Case No.24 of 1997.
In the application, it was claimed that the revisionist no.1 (Smt. Jaishree Devi) was widow of late Raghuraj Singh and the revisionist no.2 (Smt. Meenakshi Singh) was his daughter. It was alleged that Raghuraj Singh was not mentally and physically fit; that Ghanshyam Das (the opposite party no.1) got a fictitious/forged assignment deed prepared and by submitting forged consent of Raghuraj Singh, got himself substituted by playing fraud upon the Court and since the assignment deed had assigned a claim exceeding Rs.76,000,00/- for a paltry sum of Rs. 1,000,00/- the assignment deed was nothing but void. It was claimed that the revisionists had no knowledge of the entire transaction and as soon as they came to know about the same, they have applied for recall of the order dated 16.09.1997 and for substitution of their name in place of Raghuraj Singh.
An objection was filed refuting the allegations and by claiming that such an application was not maintainable because the order dated 16.09.1997 was passed with the consent of the decree-holder and such a belated challenge to the order was not legally sustainable.
By the impugned order dated 18.11.2016, the court below rejected the application 153 Ga by holding that since the deed of assignment was a registered document disclosing assignment of claim for consideration of Rs.1,000,00/-, paid by Bank Draft dated 31.12.1995, and the assignment was accepted by the decree-holder, upon which, the order dated 16.09.1997 was passed in the presence of counsel for the parties, and, thereafter, the assignee was substituted in place of the decree-holder, there remained no issue to be decided within the scope of Order 22 Rule 5 C.P.C. and as such the application was liable to be rejected.
3. Sri A. K. Mehrotra, learned counsel for the revisionist, has assailed the order passed by the court below on the ground that under Section 47 of the Code of Civil Procedure where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of the section, be determined by the Court. It has been submitted that the terms "representative of a party" used in sub-section (3) of section 47 of the Code has to be accorded wide interpretation and it includes an assignee /transferee of a party. Therefore, the question whether the opposite party no.1 (Ghanshyam Das) was assignee or not and whether the assignment deed dated 30.12.1995 was valid or not ought to have been decided in the execution proceeding itself as a civil suit and the objection ought not to have been discarded summarily as was done by the court below. In support of the above submission he has placed reliance on: (i) a decision of the Apex Court in the case of Gangabai Gopaldas Mohata v. Fulchand, (1997) 10 SCC 387; (ii) another decision of the apex court in the case of Jugal Kishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376; and (iii) a decision of the Jammu Kashmir High Court in the case of Misra Bibi v. Mohd. Hussain, AIR 2004 (J&K) 108= 2003 LawSuit (J&K) 322 (paragraph 11).
It was submitted by him that the court below has not at all addressed the challenge to the validity of the assignment deed which, on the face of the record, was fraudulent, inasmuch as compensation amount exceeding Rs.75,000,00/- was assigned for a paltry sum of Rs.1,000,00/- which was grossly inadequate. It was submitted that the assignment deed was in fact a forged document and as such void. Otherwise also, he claimed, evidences were on record to show that the assignment deed was obtained by playing fraud upon the decree-holder as regards its nature and, as such, it was void document and its cancellation was not required. According to him, the court below has failed to address vital aspects of the matter.
He went to the extent of submitting that the second execution application was not even filed by Raghuraj Singh (the decree holder) and, in fact, fraud was played upon court therefore the court had ample power to recall its earlier order dated 16.09.1997, which was obtained by fraud. In this regard he has placed reliance on judgments of the Apex Court in the case of: (a) S.P. Chengalvaraya Naidu v. Jagannath (dead) by LR (1994) 1 SCC 1; and (b) Chandra Shashi v. Anil Kumar Verma (1995)1 SCC 421.
Sri A.K. Mehrotra also pointed out that from the documents on record it was established that when, in the previous execution case no. 740 of 1995, the assignment deed was set up by the opposite party no.1 (Ghanshyam Das), Raghuraj Singh (the decree-holder) had filed his objection and had challenged the assignment deed. He submitted that though the said issue could not be decided in that proceeding because the said execution case was dismissed for non-prosecution but the said objection ought to have been considered to test the validity of assignment. It has been submitted that the aforesaid circumstance, coupled with the fact that fresh execution was allegedly filed by Raghuraj Singh and not by his assignee (the opposite party no.1), would go to show that the assignment deed was a fraudulent act and as such any substitution made on the basis of such fraudulent deed was liable to be recalled.
He further submitted that where an execution case is filed within limitation and the same remains pending, then on the death of the decree holder his heirs can seek for substitution at any time, as there is no limitation for the same. Therefore the prayer of the revisionists for substitution, even after 12 years of decree holder's death, was maintainable. In support of the above contention reliance has been placed on a decision of the apex court in the case of V. Uthirapathi v. Ashrab Ali, (1998) 3 SCC 148.
In the backdrop of the above submissions, Sri Mehrotra submitted that the execution court ought to have recalled the order dated 16.09.1997 and, thereafter, should have tested the validity of the assignment deed by entertaining the application of the revisionists as a suit and, thereafter, should have determined the issue as to who were the legal representative of the deceased decree holder in exercise of power under sub-section (3) of section 47 of the Code of Civil Procedure. He has submitted that since the court below has rejected the application summarily, without adjudicating the questions raised, the order passed by the court below is liable to be set aside and the matter needs to be remanded back for fresh consideration.
4. Per Contra, Sri A.K. Sachan as well as Sri Shashi Nandan, learned senior counsel, who had appeared on behalf of opposite party no.1, have submitted that the question of ascertaining the validity of the assignment deed in these proceedings did not arise because the decree-holder, on whose application the execution proceeding was filed, had himself accepted the deed of assignment and, on the basis of his no objection, in the presence of his counsel, the Court had passed the order of substitution, on the strength of the assignment deed. Therefore, once the decree-holder came to be substituted and the person who has been substituted is surviving, the question as to who would be the legal representative of a party would not arise for determination. It has also been submitted by them that this is a case where the application of the revisionists is nothing but gross abuse of the process of court because the revisionists are nobody else than the mother and sister of Pankaj Singh, who had applied for substitution in the execution proceeding, by claiming himself to be son of the decree-holder, and when he failed in his attempt right up to the apex court, his sister and mother were set up. It has been submitted that it is unbelievable that the mother and sister would not be aware of the pending proceeding in which their blood relative, namely, Pankaj Singh, had participated for years. They have submitted that the application of the revisionists was hit by principles of res judicata. It has been submitted that, under the circumstances, rejection of the application, filed by the revisionists, is legally justified and calls for no interference.
5. I have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record.
6. At this stage, it would be apposite to mention that the learned counsel for the opposite party no.1 had brought to the notice of the court various factual averments made in the counter affidavit to suggest that the revisionists 1 and 2 were not widow and daughter respectively of late Raghuraj Singh (decree holder) and that his wife, in fact, was one Reeta Singh with one daughter, namely, Alka Singh. It was also brought to the notice of the court that deceased Rahuraj Singh had instituted a Suit No.829 of 1997 to declare the alleged marriage between him and the revisionist no.1 void. However, correctness of these factual averments have been refuted by the revisionists. More over, since the court below has not gone into those factual disputes while deciding the application, this court does not consider it necessary to deal with those factual disputes.
7. Before dealing with the submissions of the learned counsel for the revisionists, it would be appropriate to first deal with the contention of the learned counsel for the opposite party no.1 that the application of the revisionists was hit by principle of res judicata because earlier a similar application filed by Pankaj Singh, who is the son of the revisionist no.1 and brother of the revisionist no.2, was rejected on merits.
8. Bar of res judicata would not be strictly applicable on the maintainability of the application of the revisionists because the revisionists were neither party to the earlier round of litigation nor they claim under Pankaj Singh. The revisionists have set up claim as heir and legal representative of deceased decree holder and they do not claim right through Pankaj Singh. Nothing has been shown that Pankaj Singh represented the interest of the revisionists in the previous round of litigation. Under the circumstances, it is held that the application of the revisionists was not hit by principle of res judicata.
9. The contention of the learned counsel for the revisionist that the court ought to have entertained the application of the revisionists as a suit challenging the validity of the assignment deed and ought to have tested its validity regardless of the substitution order dated 16.09.1997, in view of the provisions of sub-section (3) of section 47 of the Code of Civil Procedure, cannot be accepted in the facts of the case. Because adjudication under sub-section (3) of section 47 of the Code would arise where there is a dispute as to who would be representative of a party. Here the party was Raghuraj Singh (the decree holder), who was alive at the time when the opposite party no.1 applied for substitution on the strength of registered assignment deed. Rahuraj Singh raised no objection to the assignment deed set up by the opposite party. Whereupon, the court, in the presence of counsel for the parties, on 16.09.1997, passed an order of substitution of the opposite party no.1. As a consequence whereof, the opposite party no.1 stood substituted. Had there been any objection taken by the decree holder to the assignment deed, the Court could have determined the validity of the instrument in accordance with law keeping in mind the power vested in it by sub section (3) of section 47 of the Code. But in absence of any dispute being raised by the decree holder to the assignment deed no question arose for adjudication, therefore the judgments upon which reliance has been placed by the learned counsel for the revisionists that the validity of assignment deed could have been tested under sub section (3) of section 47 of the Code have no application here. More over, the revisionists claim through Raghuraj Singh therefore, if Raghuraj Singh accepts the assignment deed and an order is passed in pursuance thereof, the order not only binds Raghuraj Singh but the revisionists as well who claim under him. Under the circumstances, unless and until the order dated 16.09.1997 is set aside, the question of testing the validity of assignment deed, under sub-section (3) of section 47, does not arise.
10. Therefore, now, what is to be considered is whether sufficient ground has been laid by the revisionists for recall of the order dated 16.09.1997.
11. Before dealing with the issue as to whether a case for recall of the order dated 16.09.1997 was made out or not, it would be useful to examine the law as to when a court can recall its order. In Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, the apex court after considering a passage from Corpus Juris Secundum (Vol. XIX) under the chapter "Judgment --Opening and Vacating" (paras 265 to 284, at pp. 487-510), in paragraph 8 of the report, summarized the law relating to recall as follows:
"8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence."
12. In the instant case, it cannot be said that the executing court did not act within its jurisdiction while passing the order of substitution dated 16.09.1997 on the basis of a registered assignment deed, which is legally permissible and is acceptable under Order 21 Rule 16 CPC to enable assignee of a decree to pursue execution of a decree. Further, inadequacy of consideration does not affect the jurisdiction of a court to hold a transfer instrument valid, inasmuch as inadequacy of consideration, by itself, is not a ground to hold an instrument void though it may be taken into consideration by the court as to whether the consent was freely obtained from the party concerned (vide Explanation 2 to section 25 of the Indian Contract Act, 1872). But where a party, which is stated to have executed the assignment deed, itself does not oppose substitution on the basis of such assignment, and rather accepts the assignment, the question of consent not being free does not arise for consideration and as such it cannot be said that the substitution order suffered from any jurisdictional error warranting its recall. More over, the party affected by the order was duly represented by its counsel and, in fact, had given no objection for substitution, therefore it cannot be said that the substitution order was passed when the parties were not represented. Accordingly, on that ground also, recall of the substitution order is not warranted.
13. At this stage, it would be appropriate to deal with another limb of the argument advanced by learned counsel for the revisionists. It was submitted on behalf of the revisionists that if assignment had already taken place then institution of the subsequent execution application by the decree holder was a void act inasmuch as he had no surviving interest therefore the proceeding at his instance being a nullity, no substitution could have been allowed.
14. The above submission is worthy of rejection because in so far as the executing court is concerned, a decree holder is the person in whose favour the decree has been passed (vide section 2(3) CPC). Order 21 Rule 10 CPC provides that where the holder of a decree desires to execute it, he shall apply to the court which passed the decree. Order 21 Rule 16 CPC enables an assignee of a decree to apply for execution of a decree by providing that where the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court. The use of word "may" in Rule 16 as against "shall" in Rule 10 clearly signifies that Rule 16 is an enabling provision and it does not in any way affect the jurisdiction of the court to entertain an execution application at the instance of a decree holder even if he has assigned the decree. It is only when an assignment is brought to the notice of the court that the court has to consider the assignment. If it is disputed, it has to adjudicate upon its validity. If not, if the assignment is otherwise in order, to act accordingly. Therefore, if a decree holder puts a decree for execution even though he has assigned his interest in the decree, the court does not lose jurisdiction to deal with the execution application. Thus, filing of execution application by a decree holder, after assignment of his interest, would not render the proceeding void. The above view finds support from a Division Bench decision of this court in Umrao Singh v. Prahlad Singh, AIR 1935 Allahabad 1001, where a view was taken that a decree could be executed by the original decree holder even though he had parted with his rights under the decree in favour of third party. It was held that the court on its own cannot take notice of a private transaction between the decree holder and some third party, unless it is brought to its notice and recognized by it. The said view has been followed in the case of Kishore Joo v. Guman Behari Joo Deo, AIR 1978 Allahabad 1. Accordingly, it is held that the executing court did not lack jurisdiction to entertain the execution application at the instance of the decree holder even though he had assigned his interest under the decree. A fortiori, it did not lack jurisdiction to entertain the application moved by Ghanshyam Das (opposite party no.1) for substitution on the strength of assignment. Further, there is another aspect of the matter. Even if it is assumed that the execution application could not have been filed by the decree holder after assignment of his interest in the decree, as the application for substitution of the assignee was filed well within the period of limitation prescribed for filing an application for execution of the decree and, on that, substitution was directed within the prescribed period for filing of execution application, the defect, if any, got cured.
15. Now, what remains to be seen is whether the order of substitution was obtained by fraud upon court and therefore was liable to be recalled.
16. A perusal of the application (Paper No.153-Ga), which has been brought on record as Annexure 10 to the affidavit, would go to show that conflicting stand has been taken by the applicants in respect of deed of assignment. In paragraph 6 of the application, it is stated that the deed of assignment is forged and void. In paragraph 7, it is stated that Raghuraj Singh used to remain ill and was mentally weak and that Ghanshyam Das (opposite party no.1) being close to him, by exploiting his physical and mental weakness, got the assignment deed fraudulently prepared. In paragraph 8 of the application, it has been stated that in the earlier execution proceeding of execution case no. 740 of 1995, when substitution application was filed by setting up assignment deed, an objection was taken by Raghuraj Singh denying execution of assignment deed. However, the said execution application came to be dismissed for non-prosecution without any order on the objection. In paragraph 9, it has been stated that second execution case no. 24 of 1997 was got instituted by Ghanshyam Das through forged signatures of Raghuraj Singh. It has also been stated that forged signatures of Raghuraj Singh were also obtained for giving no objection to the substitution of Ghanshyam Das. In paragraph 14 it was stated that apart from the revisionists the other heirs of Raghuraj Singh are Pankaj and Alka. In paragraph 15 it has been stated that the revisionists had no knowledge of the execution proceeding though in the family there was discussion that somebody else wanted to collect compensation, upon which, they engaged counsel and got the records inspected on 7.09.2011, where upon, they came to know about the execution proceeding. It has been stated there that Pankaj never told them about the execution proceeding. At the end of the application, the revisionists have prayed that the order dated 16.09.1997 be recalled and that the applicants, namely, Smt. Jaishree Devi and Smt. Meenakshi Singh (the revisionists herein), be substituted in place of Raghuraj Singh.
17. A careful reading of the application would reveal that at one place the revisionists claim the assignment deed to be forged and at other place they claim it to have been obtained fraudulently by exploiting the mental and physical weakness of the decree holder. Similarly, on the one hand the revisionists claim that the second execution case was got instituted under forged signatures of Raghuraj Singh whereas on the other hand they themselves seek substitution in place of Raghuraj Singh thereby impliedly accepting its valid institution. Likewise, on the one hand they claim that they got knowledge of execution proceeding through talks in the family whereas on the other hand they deny that Pankaj Singh had disclosed to them about pendency of execution. Even though he was son of the revisionist no.1 and had contested the proceeding for more than a decade. Further, in respect of Raghuraj Singh's signature being forged on the execution application there is no specific averment that the signatures were seen personally and were found completely different from his admitted signatures found on such and such document. All this would go to show that the applicants are themselves not clear in their mind. If the execution application had been brought on forged signatures of Raghuraj Singh, then, by now, and even by the date when the revisionists had moved application, a fresh execution application for executing the decree had become barred by limitation as more than 12 years had already elapsed. Accordingly, to ensure that the revisionists do not lose their chance of making a claim for compensation, they have claimed for substitution. Such a conduct casts serious doubt on the bona fides of the revisionists. Further, if Raghuraj Singh had not filed execution application, then the judgment debtor could have raised objection that the execution application was not filed under the signatures of Raghuraj Singh but no such objection has been brought to the notice of the court. More over, in the court below neither any effort was made nor shown to have been made to get the signatures of Raghuraj Singh appearing on the execution application / assignment deed / no objection affidavit compared with those appearing in either previous execution application or any other admitted document to demonstrate that a fraud had been played upon the Court. Furthermore, there is no specific assertion as to how the counsel who had appeared on behalf of Raghuraj Singh as well as the judgment debtor were won over or manipulated to play fraud upon the court.
18. It is well settled in law that a presumption can be raised that judicial and official acts have been regularly performed (vide illustration (e) to section 114 of the Evidence Act, 1872). Therefore when a challenge is laid to the regularity of court proceeding, the party which lays the challenge must come up with a specific and consistent stand that inspires confidence. A self contradictory stand, as noticed herein above, taken by the revisionists to recall an order passed 14 years ago, does not inspire confidence of the court, particularly when it has come to the notice of the court that the son of the revisionist no.1, who is also brother of the revisionist no.2, had already played an unsuccessful innings towards the same end about a decade back. Under the circumstances, this Court is of the considered view that the revisionists were not able to make out a case for recall of the order dated 16.09.1997 on the ground that fraud was played upon the court. Consequently, the revision lacks merit and is dismissed. The interim order stands discharged.
Order Date :- 21.8.2017 Sunil Kr Tiwari