^. ?- HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No. 25/2007 APPLICANT RESPONDENTS Smt. Jugmati Versus Shabbir Hussain and others > O R D ER Post for^^-7-2009 Sd/- N. K. Agarwal Judge '•/ i 1 i r'^i !^ 'i^^'/ "^-.^1^^" HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No. 25/2007 APPLICANT : Smt. Jugmati aged about 57 years, W/o Ichchharam Satnami, R/o village Sewati, Tahsil Bilha, Distt. Bilaspur (CG) Versus RESPONDENTS 1 Shabbir Hussain, aged about 85 years, S/o Late Shri Rajjab Ali 2. Abbas Alli, aged about 54 years, S/o late Shri Rajjab Ali, occupation Trader, Medicine, R/o Juni Line, Tahsil ' and District Bilaspur (CG) 3. Hagm, aged about 61 years, S/o Basawan Satnami, 4. Chandrashekhar, aged about 43 years, S/o ^ late Tetkuram Satnami 5. Santosh, aged about 39 years son of late Tetkuram Satnami 6. Vijay, aged about 34 years, S/o late Tetkuram Satnami CIVIL REVISION UNDER SECTION 115 OF THE CODE OF CIVIL REVISION, 1908 (Single Bench: Hon'ble Mr. N.K. Asarwal, J.) Present : Shri Ravish Chandra Agrawal, Sr. Advocate with Shri Rajeev Shrivastava, Adv. for the applicant. Shri Ali Asgar, Adv. for the respondents No. 1 and 2. None for other respondents ORDER (2 C--7-2009) 1. Feeling aggrieved by the order dated 22-1-200t passed in Execution Case No. 51A/90 by the District Judge, Bilaspur on an application under Section 47 of C.P.C. filed by the applicant whereby the application has been dismissed, the instant revision has been preferred. 2. As per record, brief facts giving rise to this revision are as under:- i. The applicant Smt. Jugmati along with her two brothers Tetkoo and Hagru inherited the suit property bearing ;;. I ^ Khasra No. 647/1 area 1.35 hectare situated at village Tifra, Tehsil and Distt. Bilaspur as tenants-in-common having l/3rd share in the suit property. ii. On 27-1-87, the respondents No. 1 and 2 (hereinafter referred to as "decree holder) entered into an agreement of sale with Hagru and Tetku (applicant Jugmati was a consenting party as per agreement) with regard to suit land for a consideration of Rs. 3,30,000/- out of which Rs. 50,000/- was paid to Hagru and Tetku. iii. Upon refusal to execute the sale deed, a suit for specific performance was filed, which was registered as Civil Suit No.51A/90. 'y. Sommons on applicant was served through her brother, which was sent at village Sewati. v. Judgment debtors engaged late Bhagirathi Pradhan as counsel who filed Vakalatnama. Written statement was filed jointly, the suit was hotly contested and thereafter a decree for specific performance of contract was passed in favour ofthe decree holder on 13-12-95. vi. First Appeal as indigent person was filed before the High Court ofM.P. bearing M.C.C. No. 531/96. vii. On 15-1-96, execution proceedings in the suit was initiated by the decree holder and balance amount of consideration i.e. Rs. 2,80,000/- was deposited along with necessary stamps, required for registration. 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("N^ 1 ^.^•'^ holder did not get the sale deed executed within the time prescribed by the compromise and, only thereafter they have sold the said land to Paras Nath, Surendra Nath and Mahendra Nath and also handed over its possession. xii. The District Court vide order dated 20-2-2006 restored the executibn proceedings in execution case No. 51A/90 and also directed the parties to maintain status quo with regard to the suit land. xiii. Pursuant to the order dated 11-5-2006, summons in the execution case was served upon the applicant through newspaper publication in Dainik Bhaskar daily newspaper dated 18-5-2006. On 24-6-2006, the applicant was proceeded ex-parte. Thereafter the execution case was mainly contested by Paras Nath, Surendra Nath and Mahendra Nath. xiv. On 25-9-2006, Shri O.P. Agrawal, Advocate, appeared on behalf of the applicant (judgment debtor No. 2) filed an application under Section 47 of C.P.C. along with an application under Section 151, C.P.C. for examination of thumb impression of the applicant by handwriting expert stating that summons of suit was never served upon her; she did not sign power of attorney, Vakalatnama, written statement or any paper during the suit or execution proceedings; she did not file any appeal along with her brothers; did not withdraw the same; she was absolutely unknown about the proceedings; the said <"»' w decree has been passed against her by using her forged and fake thumb impression in the papers by her brothers in collusion with the decree holders. She being the owner of l/3rd share of the suit land, the decree passed is not binding upon her and is to the extent of her share, uoid ab initio. It was further stated that as no agreement'to sell has been executed by her along with her brothers in favour of the decree holder and therefore, the decree itself is illegal, void and bad. As per the application, the applicant was recently made aware about all the proceedings by her purchaser. XV. The trial Court on a close scrutiny of the material on record, dismissed the application. 3. Placing reliance upon the judgment of Supreme Court in the cases of Sabitri Dei and others -v- Sarat Chandra Rout and others reported in (1996) 3 SCC 301, Indian Bank -v- Satyam Fibres (India) Pvt. Ltd. reported in (1996) 5 SCC 550 Balwinder Kaur -v- Hardeep Kaur reported in (1997)11 SCC 701, Keshar Singh and others -v- Sadhu reported in (1996) 7 SCC 711, Pratap Rao Krishnarao Phalke -v- Krishi Upaj Mandi Samiti, Gwalior reported in 1998 (1) MPLJ 141, and S.P. Chengalvaraya Naidu (dead) by Irs. -v- Jagannath (dead) by Irs. And others, reported in (1994) 1 SCC 1, Shri Ravish Chaiidra Agrawal, learned Sr. Counsel appearing for the applicant, would submit that when a specific plea of fraud practiced upon her has t tii^,, 1 ^^m^: ^ \ ^. y / v %-^'./' ^-^.^.^ been raised which, if proved, vitiates everything and renders the proceedings as well as the decree as a nullity, therefore, learned trial Court ought to have passed the order only after conducting a detailed enquiry on the allegations of fraud. Having not done so, the learned trial Court committed serious jurisdictional illegality/error and the matter requires to be remitted back to the trial Court. Per contra, Shri Ali Asgar, learned counsel appearing for the respondents placing reliance upon the judgments in the cases of VcisUdev Dhanjibhai Modi Versus Rajabhai Abdul Rehman and Others reported in (1970) 1 SCC 670 and Surendra Singh and others -v- Lal Sheoraj Bahadursingh and another reported in 1975 MPLJ 57, would submit that the facts situation of the present case would reveal that the application has been filed by the applicant in collusion with the persons/purchasers in whose favour, the applicant along with other judgment debtor executed a sale deed. It is not a case where it can be said that the decree is passed by the Court having no jurisdiction to pass it and is patently illegal just on the face of it. The suit was hotly contested by the parties and after a long drawn litigation the decree has been passed. The applicant participated in all the proceedings through her counsel along with other judgment debtor and only after execution of sale deed in others favour, in order to support them, the •^...^^ •••y'"^^"y% •'9r ^,..,., ''^ -.. application was filed on a fake plea of fraud. In fact, they are trying to defraud the decree holders. The conduct of the applicant is unfair. Matter involves highly disputed questions of fact. In the facts situation of the case, if at all, any remedy is available to the applicant, is only by filing a duly constituted suit and not the application under Section 47 of the C.P.C. and, therefore, the trial Court has rightly dismissed the application. The core question involved in this case is whether in the facts situation of this case, allegations of fraud/ collusion/ forgery can be investigated in an application under Section 47 of the C.P.C. to arrive at a conclusion as to whether or not, the decree passed by the trial Court is a nullity ? It is no doubt true that fraud vitiates everything. Fraud conimitted before the court ainounts to abuse ofprocess of court. Once fraud is proved, it will deprive the person of all advantages or benefits obtained thereby, the delay in detection of or in taking action will raise no equities. "Fraud avoids all judicial acts, ecclesiastical or temporal" obseryed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a 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, wh^ther superior or inferior. It can be challenged -^ in any court even in collateral proceedings/' as observed by the Supreme court in S.P. Chengalvaraya Naidu*s (Supra) case. 8. The Suprerae Court in the case of Indian Bank^s (supra) case, in para 22 has observed as under:- (<22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order ifit is obtained by fraud on court. In the case offraud 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 ofthe 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." 9. Looking to the scheme of Section 47 of C.P.C. and the law laid down by the Supreme Court in several cases, the objection under Section 47, CPC can be entertained by the executing court when a decree is a nullity i.e. when a decree is obtained by fraud upon the court. 10. I have gone carefully through the facts situation of the present case. 11. In the cas.e in hand, the allegations put forth by the applicant in. nutshell are that the applicant's two brothers in collusion with the decree holder put her forged and-fake thumb impression upon the power of ^yK-%, '"v ^' ^ 9 ^ --sy attorney, Vakalatnama, pleadings and other papers, based on it, the decree in question has been passed against her. Therefore, she has been defrauded by the decree holder as well as the judgment debtor, which is a nullity in the eye of law. 12. A bare perusal of the record would reveal that all these allegations' put forth by her are highly disputed and complicated in nature. On one hand, the applicant denies the execution of power of attorney in her brothers' favour, whereas on the other hand, she executes a sale deed in the favour of subsequent purchasers by giving power of attorney to her brother Hagru. In execution case, despite publication of notice, she did not appear and thereafter she filed an application basing her knowledge through purchaser. She never bothered about her share in the suit land for a period of 18 years. The dispute which she had raised by way of the application, is in fact, with regard to her l/3rd share in the suit land. Therefore, looking to the facts and circumstances of the case, and looking to the conduct of the applicant, it cannot be said that any fraud has been committed upon the Court by the decree holder. At the most, fraud if any, can be said to be committed by her brothers upon her. For wbich, the applicant is not remediless and is always free to file a suit seeking appropriate relief. But the sarae cannot be investigated under Section 47 of the C.P.C. in the present facts situation of the case. 10 m:^ -. .^ For this, I place my reliance upon the dictum of Supreme Court in Indian Bank (supra) wherein the Supreme Court has observed that in 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. I am also in respectful agreement with the ratio laid down by the High Court of M.P. in case of Surendra Singh (Supra) wherein it has been held that where a party files a suit to set aside a decree on the ground of fraud or to have it adjudged void or unenforceable on certain grounds and seeks a temporary injunction restraining the execution of the decree, if party succeeds by placing before the court the strong prima facie evidence of fraud, the court can always grant temporary injunction to restrain execution of the decree. 13. For the foregoing reasons, I am of the opinion that the order passed does not call for any interference. The revision is liable to be and is hereby dismissed. Sd/- N. K. Agarwal Judge iD