Smt. Kusum Lata Bansal vs Sri Avadhesh Kumar Gupta & 2 Others
2017 Latest Caselaw 2185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							                   A.F.R.
 

 
Court No. - 2
 

 
Case :- CIVIL REVISION No. - 164 of 2017
 

 
Revisionist :- Smt. Kusum Lata Bansal
 
Opposite Party :- Sri Avadhesh Kumar Gupta & 2 Others
 
Counsel for Revisionist :- Sudeep Harkauli,Pawan Shukla
 
Counsel for Opposite Party :- Madhav Jain
 

 
Hon'ble Surya Prakash Kesarwani,J.

1- Heard Sri M.D. Singh Shekhar, learned Senior Advocate assisted by Sri Pawan Shukla, learned counsel for the judgement debtor and Sri Shashi Nandan, learned Senior Advocate assisted by Sri Madhav Jain for the opposite party/decree holder.

FACTS OF THE CASE

2- Briefly stated the facts of the preset case, are that a plot bearing No.C-42, Foundry Nagar, Chatta Ward, Agra, was leased by the Uttar Pradesh State Industrial Development Corporation, Agra ( hereinafter referred to as 'UPSIDC') to the opposite party/decree holder by a lease deed registered on 3.9.2004. Subsequently, the opposite party/decree holder let out in the year 2004 a building in the aforesaid premises consisting of a godown covered by a tin shed and four rooms (hereinafter referred to as the 'Disputed Property') to the revisionist/defendant/judgment debtor at a monthly rent of Rs.8,000/- besides taxes and electricity charges etc.

3- From time to time the rent was enhanced and lastly on 7.9.2011, as agreed, the rent was enhanced to Rs.12,500/- per month besides taxes and electricity charges etc.  It was further agreed between the parties that the disputed premises shall be vacated by 31.3.2012  and its possession shall be handed over to the opposite party-decree holder, failing which the judgment debtor shall pay damages @ Rs. 3,500/- per day.  The disputed property was not vacated and consequently, the opposite party/decree holder sent a legal notice dated 18.6.2012 demanding arrears of rent and also terminated the tenancy. Since, the notice was not complied with by the revisionist-judgment debtor and as such the opposite party-decree holder filed SCC Suit No.46 of 2012 in the Court of District Judge, Agra, which was decreed by judgment and decree dated 25.8.2013 passed by the Special Judge (SC/ST), Agra on the basis of compromise between the parties being Paper No.34-C.

4- Since, the revisionist-judgement debtor neither vacated the disputed property nor handed over the vacant possession to the opposite party-decree holder and as such the opposite party-decree holder filed an Execution Case No.483 of 2016 (Awadhesh Kumar Gupta v. Kusumlata Bansal ). In the said execution case the revisionist-judgment debtor filed an application under Section 47 C.P.C. being Paper No.40 which was registered as Misc. Case No.118 of 2017 and which has been dismissed by the impugned order dated 4.5.2017 passed by the Special Judge (SC/ST Act), Agra.

5- It is relevant to note here that in the said execution case the UPSIDC filed an application (Paper No.21-C) under Order 1 Rule 10 read with Order XXII Rule 10 C.P.C. on 3.2.2017, which was rejected as withdrawn by order dated 13.4.2017.

6- Before the court below, the revisionist-judgment-debtor took the stand that the opposite party-decree holder has not disclosed the fact regarding lease of the disputed property by UPSIDC and thus, a fraud was committed by suppression of material facts. The objection so raised was rejected by the impugned order dated 4.5.2017.

7- Aggrieved with the aforesaid order dated 4.5.2017, the revisionist-judgment debtor has filed the present revision. 

SUBMISSIONS

8- Sri M.D. Singh Shekhar, learned Senior Advocate submits as under:

I- The plaintiff-opposite party no.1 took on lease the plot No.C-41 and C-42, Foundry Nagar, Agra from UPSIDC. He had let this plot to the revisionist-defendant. Subsequently, he instituted a suit for eviction being SCC Case No.46 of 2012 in which, a compromise was entered between the parties and approved by the Court and accordingly, the decree was passed. Execution Case No.483 of 2016 was filed by the plaintiff-opposite party no.1 in which, the revisionist-defendant has filed an objection under Section 47 CPC dated 19.1.2017 which has been rejected by the impugned order dated 4.5.2017. The rejection of the aforesaid objection of the revisionist-defendant, is wholly illegal since the plaintiff-defendant has concealed material facts with respect to the ownership of the disputed property.

II- Since the SCC case was filed on concealment of material facts and thereby played fraud was played upon the revisionist-defendant by suppression of fact of ownership of the disputed plot which came to the knowledge of the revisionist-defendant for the first time in May, 2016 and therefore, the execution case was liable to be dismissed with cost and compromise decree was liable to be declared nullity and not be executed.

III- Since the objection to the aforesaid effect was taken by the revisionist in his objection under Section 47 CPC and therefore, the Execution Court was bound to decide these objections which have not been decided by the Execution Court by the impugned order dated 4.5.2017. Thus, the impugned order is wholly illegal. 

IV-The rejection of the objection of the revisionist by the Court below on the ground that the revisionist could have taken the objection at the earliest stage, is no ground to reject the objection.  

9- In support of his submissions, he relied upon the judgment of this Court in the case of Kishan Lal Barwa Vs. Sharda Saharan and another, 2015 (2) ADJ 297 (para 10 to 23).

10- Sri Shashi Nandan, learned Senior Advocate, learned counsel for the plaintiff-opposite party no.1 submits as under:

I- Undisputedly, the relationship between plaintiff-opposite party no.1 and the revisionist-defendant was of landlord and tenant and the SCC case was filed for eviction.

II- Once the landlord has admitted the revisionist as tenant, the revisionist tenant has no right to question the landlord tenant relationship.

III- There was no question of fraud. The allegation of fraud is wholly baseless and has no legs to stand.

IV- Lease of open land was granted by the UPSIDC to the plaintiff-opposite party no.1 on which, constructions were raised  by him which was let out by him to the revisionist for rent. The relationship of landlord and tenant so created, has not been questioned at any stage of proceedings rather the same is admitted.

V. The allegation of fraud is totally baseless, inasmuch as, neither there was any deceit by the opposite party-decree holder to the revisionist-judgment debtor/plaintiff or any injury was caused by him to the revisionist/judgment-debtor, who infact, took advantage of the tenancy for the purposes of his business. The conduct of the revisionist-opposite party is hit by approbate and reprobate and the provisions of Section 116 of the Evidence Act.

11- In support of his submissions, he relied upon the judgment of Hon'ble Supreme Court in the case of  Ashok BNimal Ghosh v. Beant Kaur, 2002 (Suppl.) JT 559 (Paragraph-6). He further submits that the estoppel contained in Section 116 of the Evidence Act, continues to operate so long as the tenant has not surrendered possession of the tenancy premises to his lessor or unless evicted by holder of title paramount.

DISCUSSION AND FINDINGS

12- With the consent of the learned counsel for the parties, the following questions are being framed for determination in this revision.

(a)  Whether under the facts and circumstances of the case there was landlord-tenant relationship between the revisionist- judgment debtor/defendant and the the opposite party decree holder/plaintiff ?

(b) Whether under the facts and circumstances of the case, the opposite party-decree holder/plaintiff concealed material facts from the revisionist- judgment debtor/defendant  amounting to fraud ?

(c) Whether under the facts and circumstances of the case the stand taken by the revisionist- judgment debtor/defendant is hit by principles of approbate and reprobate ?

(d) Whether the application of the revisionist- judgment debtor/defendant, under Section 47 C.P.C. was lawfully dismissed by the impugned order dated 4.5.2017 passed in Misc. Case No.118 of 2017 ?

Question(a)-Whether under the facts and circumstances of the case there was landlord-relationship between the revisionist- judgment debtor/defendant and the the opposite party decree holder/plaintiff ?

13- The opposite party-decree holder/plaintiff obtained a lease of Plot No.C-41 and C-42 measuring 4039 Sq. Mts. and 1244 Sq. Mts. respectively in UPSIDC Industrial Area, Foundry Nagar,Agra from the UPSIDC Ltd. for a term of 90 years. He raised the building in question over plot No.C-42, to carry on business. Subsequently, he let out the disputed property to the revisionist-Judgment-debtor/defendant on a monthly rent of Rs. 8,000/- which was lastly enhanced to Rs. 12,500/- on 7.9.2011. The revisionist-judgement debtor is also a businessman, who started running his business of printing in the disputed property. On account of default in payment of rent since 8.9.2011, the opposite party decree-holder/plaintiff issued a legal notice dated 18.9.2012 to the revisionist terminating the tenancy and demanded arrears of rent and damages. When the said suit was pending, the revisionist and the opposite party voluntarily entered into a compromise which was filed by them in the said suit. As per the decree the disputed property was to be vacated and the peaceful possession was to be handed over to the revisionist-judgment debtor decree holder/plaintiff by 13.11.2015, failing which in terms of the decree, the opposite party- decree holder shall be entitled to obtain possession through court. Thus, the suit No.46/2012 was decreed. Undisputedly, the revisionist-Judgment-debtor/defendant was admitted as tenant by the opposite party-decree holder/plaintiff landlord. The revisionist not only paid rent to the opposite party-decree holder but also when the aforesaid suit for eviction was filed by the opposite party then he voluntarily entered into a compromise with eyes wide open admitting the status of the opposite party as landlord and  and his status as tenant. Thus, the opposite party is landlord of the disputed property within the meaning of Section 3(j) of the Act of 1972 of which the revisionist-Judgment-debtor/defendant was a tenant within the meaning of Section 3(a) of the Act. The disputed property was let out by the opposite party to the revisionist is a building within the meaning of Section 3(i) of the Act. When the disputed property was not vacated by the revisionist in terms of the decree then the opposite party-decree holder filed an Execution Case No.483 of 2016 in the competent court in which the revisionist-Judgment-debtor/defendant filed an application under Section 47 C.P.C. objecting to the execution of the decree on the ground that the opposite party concealed true facts from the revisionist that he took the land of the dispute property on lease from UPSIDC. The UPSIDC also filed an objection under Order 1 Rule 10 read with Order XXII Rule 10 and Section 151 CP.C. which was dismissed.

14- From perusal of the aforesaid facts it is clear that there was a clear admission of landlord-tenant relationship by the revisionist from the very beginning and even subsequent to the decree in Original Suit No.46 of 2012. Thus, the opposite party decree-holder/plaintiff is the landlord of the disputed property of which the revisionist-Judgment-debtor/defendant was the tenant. Thus, it is undisputed that there existed relationship of landlord and tenant between the parties.

Question (b) Whether under the facts and circumstances of the case, the opposite party-decree holder/plaintiff concealed material facts from the revisionist- judgment debtor/defendant  amounting to fraud ?

15- Fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss it is a cheating intended to get an advantage.

16- "The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable  or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non- pecuniary loss. 'Fraud' is a conduct either by letter or words, which induces the other person or authority to take definite determinative stand  as a response to the conduct of the former either by words or letter. It is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is cheating intended to get an advantage.

17- A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. A mere concealment or non discloser without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained  by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point. Reference on the settled principles of law may be had to these judgments of Hon'ble Supreme Court in the case of Bhau Rao Dagdu Pralakar v. State of Maharashtra and others,2005(7) SCC 605 (Paragraph Nos. 9,10 and 11); and Harjas Rai Makhija (Dead) through Legal Representatives v. Pushpa Rani Jain and Another, (2017)2 SCC 797 (Paragaph 20).

18- The facts of the present case shows that the disputed building was raised by the Opposite party-decree holder/Plaintiff, which was let out by him to the revisionist judgement debtor/defendant on a monthly rent of Rs. 8,000/- which was enhanced from time to time and on 7.9.2011 it was enhanced to Rs.12,500/- besides taxes and electricity charges etc. The fact that the disputed building has been constructed over a plot in industrial area of UPSIDC Ltd. being plot no.C-42, was well known to the revisionist herein from the very beginning inasmuch as, the plot number is well shown by him in his registration certificate obtained from General Manager, District Industries, Centre, Agra, being permanent registration No.20/01/16218/PMT/SSI/01 dated 11.2.2002/12.9.2005, declaration under Section 4 of the Press and Registration of Books Act, 1967 given before the District Magistrate, Agra dated 12.5.2005 and the electricity connection application submitted in U.P. Power Corporation Ltd. Thus, the revisionist herein was well aware of the fact that the disputed building is standing on a plot of UPSIDC Ltd. situate in the Industrial area which was raised by the opposite party-decree-holder/plaintiff with intent to earn profit by doing business in the said disputed property. The revisionist herein took it on rent undisputedly admitting the opposite party herein as landlord. He paid rent to the landlord-opposite party herein by doing business and earned profit. He defaulted in payment of rent which caused action by the opposite party/landlord against him by filing a suit No.46 of 2012 for eviction and recovery of rent. In the said suit the revisionist herein/ tenant voluntarily filed a compromise along with the opposite party-landlord. In terms of compromise the suit was decreed. Thus, there was neither deceit by the opposite party decree-holder/landlord to the revisionist judgement debtor/defendant nor any loss was caused to him even if it is assumed for the sake of argument that the disputed building was raised by the opposite party-landlord over a leased plot. The compromise was voluntarily entered by the revisionist herein tenant with the opposite party-landlord with open eyes and the suit was decreed in terms of the compromise. The revisionist herein has been the beneficiary of the tenanted premises which he had obtained from the opposite party-landlord under a contract of tenancy and by running business in the disputed property he earned profit. Thus, the very allegation of fraud made by the revisionist herein in his application under Section 47 C.P.C. was clearly a thoughtful action to delay the execution of the decree by abuse of process of law. The allegation of fraud made by the revisionist herein was totally baseless.

Question-(c) Whether under the facts and circumstances of the case the stand taken by the revisionist- judgment debtor/defendant is hit by principles of approbate and reprobate ?

19- The facts of the present case as mentioned in the foregoing paragraphs leave no manner of doubt that the instrument of tenancy was accepted by the revisionist herein and based on that he used the disputed property to run his business and earned profits and lastly voluntarily with eyes wide open entered into a compromise in Suit No.46 of 2012 and accordingly the suit was decreed but subsequently, when the time in terms of compromise decree arrived for vacating the disputed property then in the execution proceedings he filed an application under Section 47 C.P.C. questioning the authority of the opposite party-landlord to let out the disputed property to him. The law does not permit such a person to approbate and reprobate. This, principle is based on the doctrine  of election which postulates that no party can accept and reject the same instrument and that " a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say that it is void for the purpose of securing some other advantage.

20- As per Halsbury's Laws of England (4th Edition) Vol. 16 (Paragraph 1508), after taking an advantage under an order a party may be precluded from saying that it is invalid and asking to set it aside.

21- Section 116 of the Indian Evidence Act, 1872, provides for estoppel of tenant to deny the title of the landlord to the immovable property as under :

116. Estoppel of tenant; and of licensee of person in possession-

"No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given."

22- In the case of Mt. Bilas Kunwar v. Desraj Ranjit Singh and others, A.I.R. 1915 Privy Council-96, Privy Council explained the provisions of Section 116 of the Indian Evidence Act, and held as under:

"Section 116 is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."

23- In the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others, (2001) 5 SCC 435 (Paragraph-12), Hon'ble Supreme Court referred to its earlier judgments in the case of Babu Ram alias Durga Prasad v. Indra Pal Singh, 1998(6) SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti, 1998(6) SCC 507 and Mumbai International Airport Private Limited v. Golden Chariot Airport and another, 2010 (10) SCC 422 and held that the doctrine of election is based on the rule of estoppel. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. However, taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings.

24- In the case of Cauvery Coffee Traders, Mangalore v. Hornor Resources (International Company Limited), (2011) 10 SCC 420 (Paragraph 34), Hon'ble Supreme Court referred to its decision in the case of  Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, CIT v. V. MR.P. Firm Muar AIR 1965 SC 1216, NTPC Ltd. v. Reshmi constructions, Builders & Contractors, (2004) 2 SCC 663, Ramesh Chandra Sankla v. Vikram Cement (2008)14 SCC 58 and Pradeep Oil Corpn. v. MCD (2011) 5 SCC 270 and held that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

25- In the case of V. Chandrasekaran and another v. Administrative Officer and others, (2012) 12 SCC 133, Hon'ble Supreme Court followed the law laid down in the case of Cauvery Coffee Traders, Mangalore (supra).

26- In the case of Rajasthan State Industrial Development and Investment Corporation and another v. Diamond & Gem Development Corporation Limited and another (2013) 5 SCC 470, Hon'ble Supeme Court again reiterated the law laid down in the case of Cauvery Coffee Traders, Mangalore (supra) and held in paragraph 23 as under :

"A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however reasonable, if the parties have not made it themselves. It is to be interpreted in such a way that  its terms may not be varied. The contract has to be interpreted without any outside aid. The terms of the contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely".

27- In the case of State of Punjab and others v. Dhanjit Singh Sandhu (2014) 15 SCC 144 (Paragraph Nos. 21, 22, 23, 24, 25 and 26) Hon'ble Supreme Court reiterated the law laid down in its earlier decisions in the case of CIT v. MR. P. Firm Muar, AIR 1965 SC 1216, Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329; R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 (Paragraph 10) ; P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 and held that defaulting allottees cannot be allowed to approbate and reprobate by first agreeing to abide by the terms and conditions of allotment and later seeking to deny their liability as per the agreed terms. The doctrine of "approbate and reprobate" is only a species of estoppel. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and he derived the benefit out of it, he cannot challenge it on any ground.

28- In the case of Bansraj Lalta Prasad Mishra v. Stanley Parker Jones, (2006) 3 SCC 91 (Paragraph Nos. 13,14, 15 and 16), Hon'ble Supreme Court considered the provisions of Section 116 of the Indian Evidence Act and held as under :

"13.The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.

14.The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.

15.Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time.

16.As laid down by the Privy Council in Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd. : (IA p.318)-

It [Section 116] deals with one cardinal and simple estoppel, and states it first as applicable between landlord and tenant and then as between licensor and lincensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation."

(Emphasis supplied by me)

29- The facts of the present case shows that firstly, the revisionist herein obtained the disputed property on rent from the opposite party-decree holder/plaintiff and when she faced a suit for eviction due to default in payment of rent then she voluntarily and with eyes wide open entered in compromise and allowed the suit to be decreed and thereby obtained time to vacate the premises. When the period to vacate the disputed property came to end, then she did not hand over its vacant possession to the decree holder. When the execution case was filed then she filed an application under Section 47 C.P.C. disputing the rights of the opposite party-decree holder/landlord to let the disputed building. Thus, this is a clear case of 'Approbate and Reprobate' and abuse of process of law.

Question-(d) Whether the application of the revisionist- judgment debtor/defendant, under Section 47 C.P.C. was lawfully dismissed by the impugned order dated 4.5.2017 passed in Misc. Case No.118 of 2017 ?

30- The facts of the present case as noted in the preceding paragraphs that the judgment and decree dated 25.8.2013 passed by the court of Special Judge (SC/ST Act ), Agra in S.C.C. Suit No.46 of 2012, has become final for two reasons, firstly, it was passed on the basis of the compromise between the parties and secondly, the said judgment and decree was not challenged by the revisionist-judgment debtor and he allowed it to become final. Detail discussion with respect to tenant-landlord relationship between the revisionist-judgment-debtor and the respondents-opposite parties-decree holder have already been made I this judgment and the court came to the conclusion that there existed tenant-landlord relationship. This court negated the contention of the revisionist-judgment debtor with respect to the allegation of fraud. The court found that time taken by the revisionist-judgement debtor/defendant-tenant is hit by principles of approbate and reprobate. After the decree attained finality, in the execution case No.483 of 2016 filed by the opposite party-decree holder/landlord, the revisionist- judgment-debtor filed an application under Section 47 C.P.C. Being Misc. Case No.118 of 2017, whereby he questioned the title of the decree holder with respect to the disputed property. The said miscellaneous case was dismissed by the court of Special Judge (SC/ST Act ), Agra by the impugned order dated 4.5.2017. Now, the question that arises for determination is as to whether on the facts of the present case, the application of the revisionist-judgement-debtor has been lawfully dismissed by the impugned order dated 4.5.2017.

31- Execution is the enforcement by the process of court of its order and decree vide Challamane Huchha Gowda v. M.R. Tirumala and another, (2004) 1 SCC 453 (paragraph 9). Section 47(1) of the Code permits that all question arising between the parties to the suit in which the decree was passed, or their representative, relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. Admitted facts of the present case are that the revisionist- judgment debtor is a tenant of the disputed building of which the opposite party -decree holder is the landlord. The suit itself was decreed in terms of compromise voluntarily and with eyes wise open filed by the revisionist-judgement debtor. He allowed the decree to become final, inasmuch as, it was accepted by him. The question as to title of the opposite party-decree holder with respect to the disputed property has been raised for the first time in execution proceedings by filing an objection under section 47 C.P.C. Which was rejected by the impugned order dated 4.5.2013. The objection filed by the revisionist-judgement debtor has been found by this court to be hit by principles of approbate and reprobate.The allegations of fraud made by the revisionist-judgement debtor has been held to be without substance by this court in this judgment. It is settled law that a execution court cannot go behind decree unless it is shown that it is passed by Court having inherent lack of jurisdiction or is by ab-initio which could make it nullity. In this regard. The executing court must take the decree as its stand, for the decree is binding and conclusive between the parties to the suit. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of Topanmal Chhotamal v. M/s Kundomal Gangaram and others, AIR 1960 SC 388, Deepa Bhargava and others v. Mahesh Bhargava and others, (2009) 2 SCC 294, J.& K. Bank Ltd. and others v. Jagdish C. Gupta, (2004)10 SCC 568 (Paragraph-2), Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas, (1993) 2 SCC 458, Sunder Dass v. Ram Prakash, (1977) 2 SCC 662, Oil and Natural Gas Corporation Limited v. Modern Construction and Company, (2014)1 SCC 648, State Bank of India v. M/s Indexport Registered and others, (1992)3 SCC 159, Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises, (1999) 1 SCC 558, C. Ganga Charan v. C.Narayanan and (2000)1 SCC 459.

32- The allegation of concealment of fact amounting to fraud with respect to the disputed property made by the revisionist-judgement debtor against the opposite party-decree-holder has already been held to be without substance by this Court, while deciding the question no.(b) above. The decree passed by the court below is not nullity in the facts and circumstances of the present case.

33- Undisputedly, the court which passed the decree was not lacking jurisdiction in passing the decree. The relationship of landlord-tenant between the opposite party decree holder and the revisionist-judgement debtor is also undisputed. The decree has become final, inasmuch as, it was not challenged by the revisionist-judgement debtor. Thus, the decree is not nullity.

34- In the case of Rajasthan Financial Corporation v. Man Industrial Corporation Ltd., (2003) 7 SCC 522 (Paragraph-18), Hon'ble Supreme Court considered the execution on a decree passed on the basis of a compromise-deed and held it to be executable.

35- In the case of Haryana Vidyut Prasaran Nigam Limited and another v. Gulshan Lal and others, (2009) 13 SCC 354 (Paragraphs-17 and 18) Hon'ble Supreme Court held that for the purpose of allowing an objection filed on behalf of a judgment-debtor under section 47 C.P.C., it was incumbent on him to show that the decree was ex facie nullity. For the said purpose, the court precluded from making an in-depth scrutiny as regards the entitlement of the plaintiff with reference to not only his claim made in the plaint but also the defence set up by the judgment-debtor. As the judgment of the trial court could not have been reopened, the correctness thereof could not have been put to question. It is also well known that an executing court cannot go behind the decree. If on a fair interpretation of the judgment, order and decree passed by a court having appropriate jurisdiction in that behalf, the relief sought for by the plaintiff appear to have been granted, there is no reason as to why the executing court shall deprive him from obtaining the fruits of the decree.

36- In the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, 19780(1) SCC 670, Hon'ble Supreme Court considered the maintainability of the objection to the decree under section 47 of the Code and held that a Court executing a decree cannot go behind the decree. It must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or in facts. Until it is set aside by an appropriate proceeding by appeal or revision, a decree even if it be erroneous, is still binding between the parties. When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the fact of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination on the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

37- In the case of Kanwar Singh Saini v. High Court of Delhi, (2012)4 SCC 307 (Paragraph-25), Hon'ble Supreme Court held as under :

"It is a settled legal proposition that the executing court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide State of Punjab v.Mohindeer Singh Randhawa, 1993 Supp(1) SCC 49)".

38- In the case of Brakewel Automotive Components (India) Private Limited v. P.R. Selvam Alagappan, (2017) 5 SCC 371 (Paragraph Nos. 20,21 and 23), Hon'ble Supreme Court considered the provisions of Section 47 of the Code and its nature and scope and held as under :

"20.It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non-est and is thus unexecutable. An erroneous decree cannot be equalled with one which is nullity. There are no intervening developments as well to render the decree unexecutable".

21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

23. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University, while dwelling on the scope of Section 47 of the code, it was rule that the powers of the court under section 47 C.P.C.are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab-initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view."

CONCLUSIONS

From the discussions made above, my conclusions are as under :

(i) There was landlord-tenant relationship between the opposite party-decree holder and the revisionist- judgement debtor.

(ii) Fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. The expression "fraud" involves two elements, deceit and injury to the person deceived. 'Fraud' is a conduct either by letter or words, which induces the other person or authority to take definite determinative stand as a response to the conduct of the former either by words or letter. It is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is cheating intended to get an advantage. A mere concealment or non discloser without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained  by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point.

(iii) Allegation of fraud made by the revisionist- judgment debtor in his application under Section 47 C.P.C. was clearly baseless and after thought to delay the execution of decree by abuse of process of law.

(iv) The instrument of tenancy was accepted by the revisionist herein and based on that he used the disputed property to run his business and earned profits and lastly voluntarily with eyes wide open entered into a compromise in Suit No.46 of 2012 and accordingly the suit was decreed but subsequently, when the time in terms of compromise decree arrived for vacating the disputed property then in the execution proceedings he filed an application under Section 47 C.P.C. questioning the authority of the opposite party-landlord to let out the disputed property to him. The law does not permit such a person to approbate and reprobate. This, principle is based on the doctrine  of election which postulates that no party can accept and reject the same instrument and that " a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say that it is void for the purpose of securing some other advantage.

(v) The revisionist cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

(vi) A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract.

(vii) Defaulting allottees cannot be allowed to approbate and reprobate by first agreeing to abide by the terms and conditions of allotment and later seeking to deny their liability as per the agreed terms. The doctrine of "approbate and reprobate" is only a species of estoppel. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and he derived the benefit out of it, he cannot challenge it on any ground.

(viii) The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time.

(ix) It is settled law that a execution court cannot go behind decree unless it is shown that it is passed by Court having inherent lack of jurisdiction or is by ab- initio which could make it nullity. In this regard. The executing court must take the decree as its stand, for the decree is binding and conclusive between the parties to the suit.

(x) A Court executing a decree cannot go behind the decree. It must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or in facts. Until it is set aside by an appropriate proceeding by appeal or revision, a decree even if it be erroneous, is still binding between the parties. When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the fact of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination on the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

(xi) Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. The powers of court under Section 47 C.P.C. are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree it it is found that the same is void ab-initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing, which I do not find in the present set of facts.

39- In view of the above discussions, I have no difficulty to hold that the application of the revisionist herein was lawfully rejected by the impugned order.

40- In view of the above, discussions, I do not find any merit in this revision. Consequently, the revision fails and is hereby dismissed with costs.

Order Date :- 11.7.2017

Ak/