Smt. Jugmati v. Shabbir Hussain
Case at a glance
Held
The Court held that there is no evidence of fraud against the Court by the decree holder; any alleged fraud, if any, is directed at the applicant by her brothers. Consequently, the decree stands and the revision petition is dismissed.
Provisions considered
- Code of Civil Procedure, 1908 ss. 47, 151
Key paragraphs
- Para 1212. 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…
- Para 1313. 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
Summary
AI-generated summaryWritten by AI from the judgment text below. It is not part of the judgment and is not legal advice — read the original before relying on it.
Facts
The applicant, Smt. Jugmati, seeks to set aside a decree obtained against her regarding her one‑third share in suit land. She alleges that the decree was obtained through fraud by the respondents, who are her brothers and other relatives.
Issues
- Whether the decree was obtained by fraud and can be set aside under Section 115 of the Code of Civil Procedure.
- Whether the applicant has sufficient prima facie evidence of fraud to obtain a temporary injunction restraining execution of the decree.
Holding
The Court held that there is no evidence of fraud against the Court by the decree holder; any alleged fraud, if any, is directed at the applicant by her brothers. Consequently, the decree stands and the revision petition is dismissed.
Reasoning
The Court examined the record and found the applicant’s allegations disputed and complicated. It noted that the applicant herself executed a sale deed and a power of attorney in favour of her brother, and that she had not contested her share for 18 years. The Court therefore concluded that no fraud was committed against the Court and that the applicant could seek relief through a separate suit.
Practical significance
The decision underscores that a party must establish clear evidence of fraud against the Court to set aside a decree. Merely alleging that a decree was obtained through family‑related fraud is insufficient; the applicant must pursue a separate action for relief.
Judgment
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)
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.
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. On 3- 10-96, Shri Bhagirathi Pradhan, counsel judgment debtor filed an application under Section 151 9Qjo9p 9q^ <^noQ q§TH QL[^ ^JOjgq oo^id ^oo^ 98Tuiojdmoo jo^je ys^ pres QA-eq ^oq^ qoiqM UT ^doj o^jBdo^ 'ON 'OT'IAI 9^ ui s^Lreonddp-uou sqj, JIQ^ p9nj SOOS/09 •TX '-/000'65<8£ 'SH jo iiopmapisuoo B joj SOOS-9-9 uo LI^N ^Jpu9i.[B]/\[ pLre q^N BJpuajng 'vtVQ^ s^jBd jo jnoABj m paap 9{^s B pa^nosxa jnoA^j JpL[^ UT p90p QIBS §UpUD9X9 jo o^idsm jo^qop ^uomSpnf '90'Bid 9L[; ^oo^ osimojdmoo 3;idsop pLre jnoA-ej Jpq^ UT 99JOOp ^q^ Q^TdSQp ^Bq^ punoj§ ^q^ uo sSuipo^oojd uopnoox^ jo uopBJo^s9j joj ^qSnos prre redfeg in Lfey pire q^M mpu3L^t\[ 'q^B^ mpusjng 'q^N qs^j^j pLre n^aj, JO S9Ap^U9S9jdaj ^§9^ requnqg '^mg ' '9-I (p9ip Xpusnbssqns oqM) pvns ^fiA 'qso^Lreg 'J^q^ails^JpLreqQ 'pamSnp ^mg 'nj§BH ^surega SOOS/09 *°N *DT*W SB p9J9^ST§9J SBM qoiqM •o'd'o jo T;ST; uoi^osg japun uoi^ondd^ ws panj jspiOLi sajosp sqj, •^inoQ sq^ Xq pssop S^M 9SBO uopnosxs 9q^ UT §mp8aoojd pire -/OOS'S17 •s^ ye psnpA dure^s ppipnf-uou aq; ^o^q ^oo^ japjOL[ 99J39P 9L[^ 'pSddBJO pMBJpq^IM UO pas^q SOOS-b-GT U0 •UMBJpq^TM •x "XT s^ (psddy ^SJTJ) 9W 'SOOS-8-9T UQ 'l^sdd^ •O'O']A[ aq^ passimsip ^jnoQ qgiH ^SJTJ aq^ jo pMBJpq^iM joj uop^onddB ire pspj sjo^qsp ^uom§pnfsq^ 'SOOS-C-T UQ 'THA •s§UTp990ojdjaq^jnj psXB^s ^jnoQ §upno9X9 9^^ -^esdd^ ^sjy ui ^jnoQ qgiH sq^ ^q psssad japjo onb sn^^s sq^ jo M9TA UT sSmpaaoojd uopnoaxa jo ^e^s JQJ "O'd'O '—"—-^-^--- -'.-^€ '1---.,. ("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 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 newspaper 18-5-2006. On 24-6-2006, applicant was proceeded ex-parte. Thereafter 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.
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) 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, 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 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, •^...^^ •••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 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.
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 from the nature and the constitution ofthe tribunals or courts themselves so as to from legislation but 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. "
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.
I have gone carefully through the facts situation of the present case.
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 ^' ^ ^ --sy 9 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.
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. m:^ -. .^ 10 iD 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.
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
Questions this judgment answers
What did the Court decide in this case?
The Court held that there is no evidence of fraud against the Court by the decree holder; any alleged fraud, if any, is directed at the applicant by her brothers. Consequently, the decree stands and the revision petition is dismissed.
What was the main issue before the Court?
Whether the decree was obtained by fraud and can be set aside under Section 115 of the Code of Civil Procedure.
Which statutory provisions did this judgment involve?
Code of Civil Procedure, 1908 — ss. 47, 151.
Which court decided this case, and when?
Chhattisgarh High Court, on 28 Jul 2009. The bench was N K AGARWAL.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.