HIGH COURTORCHHATTISGARH AT BU-ASPUR Writ Petitidn C227) No.3071 of 2010 PETITIONER: .:^^?^^3^?^^%^|||J^^^^|^^^^%?:^mt O)^ ,. RESPONDENTS: Decree Holder No.2 -Versus- 1. (legal heirs of deceased decree holder No.1) 2. 3. 4. 5. 6. 7. Judament-debtors 8. 9. Rakesh Kumar Yadav, son of Late Ramdev Yadav, aged about 40 years, resident of Kunkuri, Tehsil Kunkuri, District Jashpur (CG) (Ramdev Yadav, who was defendant No.2, expired and has not been made party although paityin civil suit) Basant Kumar Yadav, son of Shri Jagmohan Prasad Yadav, aged about 51 years, resident of Purani Basti, Kunkuri, Tehsil Kunkuri, District Jashpur (CG) Usha Devi, widow of LateAshok Yadav, aged about 44 years Kumari Sunaina Yadav, daughter of Late Ashok Yadav, aged about 19 years Lokesh Kumar Yadav, son of Late Ashok Yadav, aged about ISyears Kumari Sonam Yadav, daughter of Late Ashok Yadav, aged about 16years, Alok Yadav, son of Late Ashok Yadav, aged about 13 years Kumari Ritu Yadav, daughter of late Ashok Yadav, aged about 12 years. No.2 to 7 are legal heirs of deceased plaintiff/decree holder No.1 Ashok Kumar Yadav, son of Jagmohan Yadav and No.5 to 7 are minors through their natural guardian mother- respondent No.1. Respondents No.2 to 7 R/o Purani Basti Kunkuri, Tahsil Kunkuri, District Jashpur (CG) Ganesh Prasad Yadav, son of Shri Ramdev Yadav, aged about 53 years, caste Ahir, resident of Purani Basti, Kunkuri, Tehsil Kunkuri, District Jashpur (CG) State of Chhattisgarh, through the Coilector, Jashpur Nagar (since made party in the civil suit) ______ ^... ^•:CTi3to, ^;Si|^§| 10 •r0 Present: ; Shri Kshitij Sharma, counsel for the petitioner. Shri A.K. Yadav, counsel for respondents No.1 to 7. Shri Sumesh Bajaj, Gdvt. Advocate for the State/resppndent No.9. Sinale Bench: Hon'ble Shri Dhirendra Mishra, J. ORALORDER (30-6-2010) 1. Head on admission. 2. By the instant petition underArticle 227 of the Constitution of Indian, the petitioner has prayed for setting aside the order dated 15-6-2010 (Annexure- P/6) whereby in misc. civil appeal under Order 43 Rule 1 (d) of the CPC, the application of the petitioner/appellant for staying execution of the decree has been rejected. The petitioner has also prayed for setting aside the order dated 5-3-2010 whereby the petitioner's application under Order 9 Rule 13 CPC and under Section 5 of the Limitafion Act, application for condonation ofdelay in filing this application have been rejected and consequently, his application for setting aside ex-parte decreehas also been dismissed. 3, Shri Kshitij Sharma, learned counsel for the petitioner vehemently argued that ex-parte decree was passed in favour of Ashok Kumar, Basant Kumar Yadav, respondentNo.1, and their father Jagmohan Yadav. RespondentsNo.2 to 7 are legal heirs of Ashok YadaV, decree holder. The decree was obtained by them by playing fraud with the defendants. The decree so obtained was not sought to be executed for a considerable period. The petitioner was not a party to the earlier suit, as the same was filed against Ramdev Yadavand respondent No.8 Ganesh Prasad Yadav. Despite serious allegations in the application under Order 9 Rule 13 CPC that the decree was obtained by practicing fraud, his application for setting aside ex-parte decree was rejeeted on technical ground that it is barred by limitation, without affording any opportunity to lead evidence about fraud practiced by respondent decree holder. Any decree obtained by fraud is a nullity, as fraud vitiatesthe entire action and can be challenged in any proceeding, even in collateral proceedings. If the order is allowed to stay, in that case, decree of possession shall be executed and the petitioner shall be dispossessed from his dwelling house in execution offraudulent decree. He also submitted that subsequent to the filing of the petition, on 25-6- 2010, in execution proceedings of the aforesaid decree, execution has been stayed on the basis of undertaking that if the objector does not produce any interim order in the writ proceeding or ifthe order is passed against him, in that case, he would himself deposit the decretal amount and deliver the possession :''!-TI-5P ]'hia]iir.- No.1 to7 and opposes the of the suit property to the decree holder and the matter has been fixed for 5 July.2010. 4. Shri A.K. Yadav, Advocate, takes suo motu notice on behalf of respondents prayer of the petitioner for staying execution proceeding. 5. Heard learned counsel for the parties. 6. From perusal of application for setting aside ex-parte decree, condonation of delay in filing the above application and the order of Annexure-P/4, rejection of both the applications of the petitioner by learned Civil Judge.it is seen that ex- parte decree was passed on 15-1-1996, execution proceedings wereinitiated in the year 2006, the eariier application under Order 21 Rule 99 was filed by the petitioner on 14-8-2007, thereafter it was dismissed on 23-9-2008. During his life time, the original judgment debtors including father of the petitioner appeared in execution proceeding on 2-9-2006 through their advocates and even after the knowledge of ttie decree, he did not initiated any proceeding to get the decree set aside during his life time, as he diedonl 1-8-2008. The petitioner has himself filed a suit on 30 Augu'st, 2007 for declaration of the judgment and decree null and yoid in the Court of Additional District Judge and the same is pending. The trial Court, considering all these aspects and also considering that the original judgment debtor had at least knowledge of the decreeon 2-9-2006, and he did not take any step to get the decree set aside and the petitioner has himself admitted that he came to know about the decree for the first time on 10-8-2007, however, the application for setting aside the decree Was filed only on 16-10-1008, dismissed his application for condonation of delay and consequently, his application under Order 9 Rule 13 of the CPC and the misc. appeal preferred by the petitioner against theaforesaid order is pending before the trial Court. However, his application for staying execution ofthe decree has been rejected videorder dated 15-6-2010 and the matter has been posted for hearing on interim application on 8-7-2010. 7. Indisputably, original decree was passed against the fatherof the petitioner way back in the year 1996; in execution proceedings, the judgment debtor including the father of the petitioner caused their appearance on 2-9-2006 and they did not initiate any proceeding for setting aside ex-parte decree during their life time; the petitioner's application under Order 21 Rule 99 ofthe CPC in execution proceeding ha? been rejected;his civil suit for declaration of the judgment and decree in question is pending in the Court ofAdditional District Judge; miscellaneous appeal 'against the order of Annexure P/4 is pending adjudication; in these circumstances, 1 am of the opinion that the learned "^'-. Additional District Judge jurisdictional error in passing interference in exercise of Constitution of India. 4 has not committed any illegality, infirmity or the impugned order (Annexure P/6) warranting supervisory jurisdiction under Article 227 of the 8. The petition is accordingly dismissed at the admission stage itself. Bar/e .^s^ta ^teeos^