R.S.A. No. 1649 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1649 of 2008 (O&M) Date of decision: 21.05.2009 Jaswant Singh ....appellant versus Mohinder Kaur ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Jaideep Verma, Advocate, for the appellant. Mr. G.S. Verma, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 5210-C of 2008 Allowed as prayed for. R.S.A. No. 1649 & C.M. No. 5211-C of 2008 This regular second appeal is directed against the judgment and decree dated 7.1.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent for recovery of Rs.1,50,000/-, has been ordered to be partly decreed for an amount of Rs.48,435/- along with interest and costs of Rs.2000/-. Undisputed facts are, that the plaintiff/respondent filed a suit for recovery against the defendant/appellant, which was decreed. In execution of the decree, admittedly a sum of Rs.20,000/- was paid. R.S.A. No. 1649 of 2008 (O&M) -2- The case set up by the plaintiff was, that another sum of Rs.48,000/- was paid outside the Court against receipt duly signed by the defendant/appellant. The factum of decree having been satisfied was brought to the notice of the learned executing Court. However, the execution application was not got dismissed as satisfied, instead the defendant/appellant chose to get the property of plaintiff/respondent attached for recovery of the decretal amount. The attached property was ordered to be auctioned. The plaintiff/respondent filed objections against the auction of the land by invoking the provisions of Order 21 Rule 89 of the Code of Civil Procedure by deposit. In the application, reference was also made to the deposit made outside the learned Court, the learned executing Court did not consider this aspect of the matter. The plaintiff/respondent thereafter paid the total sale consideration along with interest. The plaintiff/respondent thereafter filed a suit for recovery of Rs.1,50,000/- by way of damages on the plea, that the excess amount received by the defendant/appellant was not counted for by playing a fraud, and further that due to auction of her land, she was defamed in public. The case set up by the plaintif/respondent throughout was, that the original receipt was kept by the defendant/appellant for producing it in the Court for getting the execution dismissed as having been satisfied, but he played fraud by not producing the receipt before the learned executing Court. It was the case of the plaintiff/respondent that original receipt was with the defendant/appellant, therefore, application for secondary evidence was moved, which was allowed and thereafter the receipt qua payment of Rs.48,000/- was duly proved. R.S.A. No. 1649 of 2008 (O&M) -3- The learned Courts below in view of the evidence have recorded a concurrent finding of fact, that the defendant/appellant had, in fact, received a sum of Rs.48,000/- outside the Court, which was not counted for in the execution proceedings. The Court did not decree the suit in totality for damages, but only decreed the suit for recovery of Rs.48,000/- with interest and costs. The learned counsel apearing on behalf of the appellant contends, that the appeal raises the following substantial question of law: "Whether the suit filed by the plaintiff/respondent was barred under the provisions of Section 47 of the Code of Civil Procedure?" In support of the substantial question of law, the learned counsel for the appellant contends, that reading of Section 47 of the Code of Civil Procedure would show that all questions arising between the parties to the suit in which decree was passed or their representatives and relating to execution, discharge or satisfaction of the decree are to be determined by the Court executing the decree and not by way of separate suit. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in Dhurandhar Prasad Singh Vs. Jai Parkash University, 2001(4) RCR (Civil) 280 and also the judgment of this Court in M/s Dashmesh Rice Mills and others Vs. M/s Govind Ram Anil Kumar, 2003(3) PLR 514. In both of these judgments it has been held that the questions arising between the parties regarding decree have to be determined under Section 47 of the Code of Civil Procedure and not in a separate suit. The contention of the learned counsel for the appellant is, that R.S.A. No. 1649 of 2008 (O&M) -4- the substantial question of law, therefore, deserves to be answered in favour of the appellant by holding that the suit filed was not competent. This contention of the learned counsel for the appellant cannot be accepted. The learned Courts below have held that the defendant had fraudulently not disclosed the receipt of Rs.48,000/- outside the Court on the promise that it will be presented before the learned executing Court to get the execution application dismissed as fully satisfied. It is settled law, that fraud vitiates every act and any benefit drawn by the person by fraud can be set right in subsequent or collateral proceedings by taking remedies available under the law. The learned lower appellate Court has rightly rejected the contention raised by observing as under: - "I find merit, in the argument advanced by learned counsel for the respondent, because she had filed the suit, for recovery of excess amount, secured by appellant, by deliberately, suppressing the factum of filing of application by him, for discharge of the decree, and receipt of part of amount, from her outside the court, before her land was put on auction and sold in execution proceedings. The provisions of Section 47 CPC, are attracted where matter pertains, to execution, discharge or satisfaction of decree, between the parties or their representatives. The receipt of excess amount, by playing fraud, or by suppressing the truth by the decree holder, from the court, cannot be said to have been received by decree holder, in execution, discharge or satisfaction of decree, from any strength of imagination. Such an interpretation of Section 47 would amount to unjust enrichment of the decree holder, who has secured the excess amount, from the judgment R.S.A. No. 1649 of 2008 (O&M) -5- debtor, by concealing the facts. It was duly of the decree holder, under Order 21 Rule 2 CPC to get, the payment received by him, ouside the Court, from the JD, certified, from the Court. It is established on record that he filed application, for consignment of execution application, before he got, the land of JD, attached and sold, in deceitful manner. Therefore, I express my inability to accede, to the submissions, made by the learned counsel for the appellant/defendant, that separate suit for recovery of excess amount, is barred by the provisions of Section 47 of the Act. Resultantly I have come to the conclusion, that trial Court, has rightly decided, that suit, filed by the plaintiff is not barred by the provisions of Section 47 CPC. Therefore, findings, returned by the trial Court, on this issue, are confirmed." The findings recorded by the learned lower appellate Court deserve to be upheld for the reason that dispute now raised was with regard to the certain action taken outside the Court and not in the execution proceedings, as contended to attract the provisions of Section 47 of the Code of Civil Procedure. For the reasons stated above, the substantial question of law raised in view of peculiar facts and circumstances of the case is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 21, 2009 R.S.