1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 241 OF 2010 IN WRIT PETITION NO.424 OF 2009 WITH CIVIL APPLICATION NO.12188 OF 2010 Smt. Sushilabai W/o Kisanrao Khatri, Age 65 years, Occup. Household, R/o Dalalwadi, Aurangabad at present r/a Arihant Nagar, C-3 Aurangabad, through her General Power of Attorney Dr. Sudam Asaram Kurhade, Age 47 years Occup.Medical Practitioner, R/o Plot No.7,Maharana Housing Co-Op.Soceity,CICO, N-7 Aurangabad. ...APPELLANT. VERSUS 1) City and Industrial Development Corporation of Maharashtra Through its Administrator, CIDCO,Aurangabad. 2) Special Land Acquisition Officer, Aurangabad. ...RESPONDENTS. ... Shri.V.D.Sapkal Advocate for Appellant. Shri A.S.Bajaj,Advocate for Respondent NO.1. Shri.V.D.Rakh, A.G.P. for Respondent No.2. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. RESERVERED ON: 19th OCTOBER, 2010. PRONOUNCED ON: 26th OCTOBER, 2010. 2 ORDER : [ PER : K.K.TATED, J.] 1. The appellant-Original respondent/Plaintiff by way this Letters Patent Appeal challenges validity and legality of Oral Judgment dated 12th July, 2010 passed by the learned Single Judge in Writ Petition No. 424 of 2009 on the ground that in Execution Petition under Order 21 Rule 101 of the Code of Civil Procedure, the Executing Court can not permit the respondent/Ori. Defendants to lead evidence and same is allowed by the learned Single Judge in the present case. FEW FACTS OF THE MATTER ARE AS UNDER: 2. The appellant-Original petitioner(Plaintiff) filed Regular Civil Suit No. 311 of 1986 in the Court of 2nd Joint Civil Judge (Junior Division), Aurangabad against respondents-Original defendants for declaration that the appellant is owner in possession of the land Survey No.197 to the extent of 20 Gunthas. The respondents-defendants though 3 filed their written statement but did not appear thereafter. Hence, the matter proceeded ex-parte and the claim of the plaintiff was decreed. 3. Feeling aggrieved, the respondents-original defendants preferred Appeal. As there was delay in filing the appeal, the respondents filed an application for condonation of delay; but it was rejected by the Appellate Court. Hence, the respondents preferred Second Appeal No.896 of 2008 before this Court and it was dismissed on 4th September, 2009. Feeling aggrieved, the respondents-Original defendants preferred Special Leave Petition No.34897 of 2008, which is pending before the Apex Court. 4. The respondents - Original defendants preferred an application being Exhibit No. 67 in Regular Darkhast No.155 of 2001 for following reliefs: [A] Application may please be allowed and, 4 [B] Applications Exh.15 and Exh.16 may please be dismissed with costs and, [C] Decree being nullity execution petition be closed and; [D] For having given false evidence in the suit as well in the present execution petition, criminal action u/sec. 209,210,193 and 196 of I.P.C. May please be initiated against the decree Holder as fraud is played on the court by the Decree Holder and oblige. 5. Thereafter, the respondents preferred an application dated 17th November, 2008 before the Executing Court in Regular Darkhast No.155 of 2001 for permitting the parties to lead oral and documentary evidence along with other reliefs. Both these applications below Exhibits 67 and 71 were rejected by the Executing Court, by common order dated 28th November,2008. 6. Being aggrieved by the order dated 28th 5 November, 2008 the respondents preferred Writ Petition NO.424 of 2009, in which impugned order dated 12th July, 2010 was passed. 7. The main contention raised by Mr.Sapkal, learned counsel appearing for the appellant -original plaintiff is that the application preferred by the respondents before the Executing Court for allowing them to lead evidence is not maintainable in law. 8. The learned Counsel appearing for the appellant further submits that if the respondents are allowed to lead evidence in support of their contention in Execution Petition it would amount to indirectly reopening the entire litigation, which came to be decided by Judgment and decree passed by the trial Court in Regular Civil Suit No.311 of 1986. 9. The learned Counsel further submits that the learned Single Judge failed to appreciate that all 6 objections raised in written statement by the respondents and against impugned decree, Special Leave Petition is pending in Apex Court and therefore, the learned Single Judge ought not to have allowed the application filed by respondents below Exh.71 seeking permission to lead evidence. He submits that alternate remedy is available to the respondents to file suit challenging the ex- parte decree by fraud, if they so alleged. In support of his contention he placed reliance on the Judgment in the matter of Lalitabai Vs. Pundlik V Dayaram Rangari reported in 2007 (Suppl.) Bombay Case Reporter, 620. In that case it is held that for determination of question whether decree obtained by fraud or that decree is nullity and is inexecutable is to be adjudicated in separate suit. On the basis of these submissions the learned Counsel appearing on behalf appellant submits that impugned order dated 12th July, 2010 passed by the learned Single Judge is liable to be set aside and quashed. 7 10. On the other hand, Mr.Bajaj, learned Counsel appearing for respondent No.1-Original defendants submits that they specifically made allegations and averments in their applications below Exh.67 and 71 in the Regular Darkhast No.155 of 2001 that the appellant obtained decree by playing fraud, misrepresentation and by suppressing true and correct facts. He submits that suit land was acquired by the respondents under Land Acquisition Act. The Special Land Acquisition Officer declared the award dated 22nd April,1975 and since then they are in possession of the suit property. These facts were not disclosed by the appellant in their Regular Civil Suit filed by him before the Trial Court. 11. The learned Counsel further submits that appellant obtained ex-parte decree by playing fraud and misrepresentation; therefore ex-parte decree passed by the trial Court is inexecutable. In support of his contention he placed reliance on the Judgment of the Apex Court in the matter of 8 S.P.Chengalvaraya Naidau (Dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. And others in Civil Appeal No. 994 of 1972 dated 27.10.1993. In that case it is held that the 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 by the highest Court-has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings. 12. The learned Counsel further placed reliance on another judgment of Apex Court in the matter of A.V.Papayya Sastry Vs. Govt. of A.P. And others reported in (2007) 4 Supreme Court Cases 221. In that case Court the Apex Court held that fraud vitiates all judicial acts whether in rem or in personam. Head Note B reads thus: “B. Fraud-Meaning- Vitiates all judicial acts whether in rem or in personam-Judgment, decree or order 9 obtained by fraud has to be treated as non est and nullity, whether by court of First instance or by the final court- It can be challenged in any court, at any time, in appeal, revision,writ or even in collateral proceedings- This is an exception to Art.141 of the Constitution and doctrine of merger-Constitution of India, Art.141.” 13. On the above submissions the learned counsel appearing for the respondents-original defendants submits that there is no substance in the present Letters Patent Appeal and same deserves to be dismissed at the stage of admission itself. 14. We have heard both the sides at length. The point arises in the present Letters Patent Appeal is, “Whether Executing Court can allow the parties to lead evidence, in the proceeding on the application under Order 21 Rule 101 of C.P.C.?” To consider this issue it is necessary to reproduce the Order 21 Rule 101 of the Code of 10 Civil Procedure. “ Order 21 ... Rule 101 Question to be determined- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions.]” 15. Bare reading of Order 21 Rule 101 of the Code of Civil Procedure, shows that Executing Court can decide all questions including question relating to right title and interest in the property arising between the parties to the proceeding. Under Rule 97 or Rule 99 for determining all 11 questions Executing Court can allow the parties to lead evidence. The Apex Court in the Matter of Ashan Devi and another Vs. Phulwasi Devi and Others reported in (2003)12 Supreme Court Cases 219 held that Executing Court can record evidence in Execution Application also. Para No.28 reads thus: “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 Order 21 Rule 99 of the Code and decided the other issues on merits of their claims arising between the decree-holder and the objectors.” 16. Therefore, it is crystal clear that the Executing Courts have power to allow the parties to lead evidence in the proceeding Under Order 21 Rule 101 of the Code of Civil Procedure. The provisions of amended Rule 101 are comprehensive 12 and mandatory. The Rule makes it clear that no separate suit is to be filed for determining questions relating to the right, title or interest in the property arising between the parties to a proceeding under Rule 99 but the Court dealing with the applications has the jurisdiction to decide all such questions. Therefore, the enquiry under this rule will be threated as if it is a trial in a suit and the procedure for the trial of the suit under the Code will be the procedure under Rule 101. The facts and the law are fully considered by the learned Single Judge in detail in the oral Judgment dated 12th July, 2010. Considering the applications filed by the respondents below Exh. 67 and 71, and the averments made in those applications about fraud committed by the appellant, we do not find any glaring mistake committed by the learned Single Judge in allowing the respondent’s Writ Petition. 17. The letters Patent Appeal is dismissed summarily with no order as to costs. 13 18. In the light of dismissal of Letters Patent Appeal, nothing survives for consideration in the Civil Application, the same is disposed of accordingly. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK