THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CIVIL REVISION PETITION No.2955 of 2019
ORDER:
This revision is filed challenging the order dated 26.08.2019 in I.A.No.1925 of 2018 in O.S.No.44 of 1998 passed by the I Additional Chief Judge, City Civil Court, Secunderabad, whereunder the application filed under Section 151 CPC to set aside the decree dated 07.11.2020 passed in O.S.No.44 of 1998 was dismissed.
2. The facts of the case, in brief, are as under:
(a) The petitioner is the defendant No.3 in the suit, O.S.No.44 of 1998, filed by the respondent No.1/plaintiff for specific performance of agreement dated 23.04.1997 (Ex.A1). The suit was initially filed against the sole defendant - B. Chandrasekhara Rao; after his death the defendant No.2 (respondent No.3 herein), defendant No.3 (petitioner herein) and defendant No.4 (respondent No.4 herein) were brought on record as his legal heirs; later defendant No.2 died and defendant No.4 also died, hence, respondent No.5 herein was brought on record as his legal heir; the suit was contested; plaintiff examined himself as P.W.1 and marked Exs.A1 to A4; D.W.1 (defendant No.4) was examined on behalf the defendants; the suit was decreed by judgment dated 07.11.2000. It needs to be noted that pursuant to decree dated 07.11.2000, the defendants have executed sale deed bearing document No.1154 of 2001 dated 30.05.2001 in favour of the plaintiff, wherein it was mentioned that the suit filed by the vendee was decreed on 07.11.2000.
(b) An application in I.A.No.1925 of 2018 was filed by the defendant No.3/petitioner herein, inter alia, contending that the suit was contested by an advocate appointed by the defendants No.1 to 4; 2 the advocate filed written statement on behalf of the defendant No.1 admitting the agreement of sale made in favour of the plaintiff but only feebly contended that the plaintiff was not ready to perform his part of the contract; the advocate also filed Vakalath on behalf of the defendants No.2 to 4 after demise of the defendant No.1 and adopted the written statement filed by the defendant No.1; as there was practically no defence in the suit, it was decreed by judgment dated 07.11.2000; though sale deed dated 30.05.2001 was executed in pursuance of the judgment and decree, the respondent No.1 never exercised ownership rights over the suit property nor has taken possession of the same; the judgment in the suit is obtained by fraud played on the Court by active connivance of the plaintiff and the defendant No.4, who are instrumental in creating the suit agreement and filing of the suit.
(c) It was further stated that the alleged agreement of sale is a rank forgery; the signatures of B. Chandrasekhar Rao, appearing in the agreement of sale were compared with admitted signatures on various documents; the handwriting expert of the Central Forensic Science Laboratory (CFSL) in Cr.No.174 of 2008 of the Osmania University Police Station, gave an opinion dated 16.11.2017 that the signatures of B. Chandrasekhar Rao appearing in the agreement of sale are not signed by him; the handwriting expert also gave an opinion that the signatures of B. Chandrasekhar Rao in the vakalath filed in the suit are not his signatures; the defendant No.4 was instrumental in creating forged agreement of sale with the forged signatures of B. Chandrasekhar Rao and also forged his signature in the vakalath; the defendant No.4 was suffering with Liver Cancer and he was not mentally and physically fit and was under the complete control of one Mr. K.V. Satyanarayana, who is the brother-in-law of 3 the petitioner and the defendant No.4; the said Satyanarayana was the classmate of the plaintiff.
(d) The defendant No.3 has not received summons from the Court and everything was stage managed as if summons was served and vakalath was served on the petitioner; the hand writing expert vide report dated 16.11.2017 opined that the signatures of the defendant No.3 found on the vakalath are forged and are not signed by him; Ms. A. Sharmila Mani, the niece of the defendant No.3, went to the house of the plaintiff at Eluru on 11.10.2019; in the meeting the plaintiff categorically admitted that he is not interested in the property as neither B. Chandrasekhar Rao nor the defendant No.3 or the defendant No.4 have ever taken money from him; the property was registered in his name as there was a threat from APSFC to auction the property in respect of a loan taken by B. Chandrasekhar Rao and he is ready and willing to re-register the property in favour of the defendant No.4; the proceedings of the said meeting were recorded in a pen camera by Ms. A. Sharmila Mani and it was revealed to the defendant No.3 in the year 2016; it was thus contended that the decree in O.S.No.44 of 1998 is liable to be set aside and consequently, the sale deed dated 30.05.2001 is liable to be declared as null and void and inoperative.
3. The Court below passed the impugned order observing that the petitioner has to prefer an appeal against the judgment, if he is aggrieved by the judgment. The judgment was passed on merits and there was no sufficient ground to hold that the decree was obtained by fraud and the Court has no jurisdiction to entertain the application.
4. An application in I.A.No.2 of 2020 has been filed by third parties seeking to implead themselves as the respondents No.6 to 8 in the 4 revision. The said application, being unopposed, was ordered on 29.07.2021.
5. Heard Mr. M. Govind Reddy, learned counsel for the petitioner and Mr. B. Anil, learned counsel for the respondents No.6 to 8.
6. Learned counsel for the petitioner contended that the application under Section 151 CPC is maintainable as it is settled law that fraud unravels every act. There is an unimpeachable evidence to show that the judgment dated 07.11.2000 in O.S.No.44 of 1998 is obtained by fraud. Thus, the Court below should have exercised inherent jurisdiction under Section 151 CPC, more so, in the light of the opinion of the handwriting expert that the signatures of the petitioner in the agreement of sale and vakalath are forged.
7. Per contra, the learned counsel for the respondents No.6 to 8 submitted that the respondents No.6 to 8 are bonafide purchasers of the suit property and are in possession of the same. The respondents Nos.1 to 5 have colluded with the petitioner and have remained ex parte and even before this Court, they are ex parte. The Court below has become functus officio after judgment is passed. The Court below has rightly held that if the petitioner is aggrieved by the judgment, the remedy available to him is to file an appeal and not filing an application under Section 151 CPC.
8. Having considered the submissions of the learned counsel appearing for the parties, this Court is of the opinion that the application filed under Section 151 CPC is not maintainable. It is not in dispute that the petitioner has executed the sale deed in terms of the decree in O.S.No.44 of 1998 dated 07.11.2000. As noted above, there is a clear mention in the sale deed that it is being executed in 5 pursuance of the decree dated 07.11.2000. The Court becomes functus officio after the judgment is passed. Except for correcting clerical/arithmetic errors under Section 152 CPC read with Section 153 CPC, the Court does not have any jurisdiction to entertain an application for reopening the suit and setting aside the judgment passed. However, the Court which passed the judgment has got review power under Section 114 read with Order XLVII Rule 1 CPC but the instant application is not a review application but an application filed under Section 151 CPC for setting aside the judgment on the ground of fraud. Thus, the Court below was right in holding the application in I.A.No.1925 of 2018 is not maintainable. There are no merits in the revision and the same is liable to be dismissed.
The civil revision petition is dismissed. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J August 6, 2021 DSK