Shri Tarachand Jain vs Smt. Saroj Gupta
2006 Latest Caselaw 1012 Del

JUDGMENT

Manju Goel, J.

1. This application under Section 151 CPC seeks recalling the collusive decree of 2.9.99 passed in CS(OS) 2121/1987. Before coming to the averments in the application, it is necessary to have a look at the proceedings in this case.

2. The applicant filed the S. No. 2121/87 against Saroj Bala with the following story. An agreement to sell was executed by the defendant in favor of the plaintiff in respect of 15/275, Vishwa Bhawan, Civil Lines, Kanpur (herein after referred to as the suit property ) on 30.9.82 for a consideration of Rs. 4.75 lacs after actual payment of earnest money of Rs. 25,000/-. But the defendant failed to obtain the pre-requisite permissions/sanctions from various authorities and failed to perform the agreement. Two supplementary agreements dated 22-9-83 and 30-3-84 were executed by the defendant in favor of the plaintiff whereby the time for execution was extended up to 30.9.87 with direction to the defendant to obtain necessary permissions and sanctions from the local authorities at Kanpur and clearance from the Income Tax Department at Delhi/Kanpur. This Court issued summons to the defendant and also passed an order of injunction dated 5-10-87 restraining the defendant from transferring her right, title and interest in the suit property. On 26-10-87, the defendant put in appearance through Mr. V.K. Mishra and subsequently filed his written statement and reply to the application for injunction. The dates for trial were given as 9th and 10th October, 97 and, thereafter, 6th and 8th February, 2000.

3. On 29-7-99, before the date fixed for trial, IA 7091/99 was filed by Geeta Devi and Sarla Devi for substitution as plaintiffs in place of Tara Chand Jain who had assigned his interest in the suit property in their favor by virtue of an agreement dated 28-7-99. On that day, the plaintiff was represented by Mr. Alakh Kumar, Advocate and the applicants by Mr. Kirti Uppal, Advocate. up to the earlier date, the plaintiff was being represented by one Mr. J.K. Jain. On certain dates the plaintiff was himself present in Court. The application was allowed on 29-7-99 and thus applicants were substituted in place of the plaintiff. Thereafter, an application under Order XXIII Rule 3 CPC was filed by Geeta Devi and Sarla Devi which was listed for disposal on 2.9.99. This application was allowed and the suit was disposed of in terms of the compromise.

4. The present application was filed in November, 2003 and was listed on 14-11-03. The applicant challenges the compromise decree on the following grounds:

i) The applicant/plaintiff could not have legally transferred or assigned or alienated the suit property in favor of any one because he had not become owner thereof.

ii) One Krishan Kumar Gupta purported attorney of Geeta Devi and Sarla Devi obtained consent of the applicant on agreement/assignment deed dated 28-7-99 in favor of Geeta Devi and Sarla Devi assuming that the plaintiff has such a right of assignment. The Assignment Deed was written on a two rupee non-judicial stamp paper.

iii) A sum of Rs. 50,000/- was paid through cheque dated 8-6-98 and a sum of Rs. 50,000/- was paid by draft dated 11-9-98 and a sum of Rs. 2 lacs by way of a draft dated 1-2-99.

iv) No devolution took place because Saroj Gupta was not a signatory to the said document and because the plaintiff did not have any right of assignment.

v) The application under Order XXII Rule 10 for substitution of Geeta Devi and Sarla Devi was bad.

vi) The plaintiff was misled by Krishan Kumar Gupta and the Advocate appointed for the plaintiff in place of Shri J.K. Jain, Advocate. Mr. Alakh Kumar could not have represented the plaintiff because he had not obtained no objection from the plaintiff's earlier advocate Shri J.K. Jain.

vii) The application under Order XXIII Rule 3 was bad because in this application the applicant was never imp leaded.

viii) The defendant/respondent Saroj Gupta could have transferred the title in favor of Geeta Devi and Sarla Devi only subject to plaintiff's right under the three agreements mentioned above.

ix) Geeta Devi and Sarla Devi were to pay the amount of Rs. 13.25 lacs to the plaintiff and on such payment being made plaintiff would have assigned the decree to Geeta Devi and Sarla Devi. The amount of Rs. 13.25 lacs paid through bank drafts were actually to be paid to the plaintiff/applicant instead of to Saroj Gupta.

x) The defendant as well as Geeta Devi and Sarla Devi colluded to obtain the compromise decree.

xi) The plaintiff came to know of the collusive decree when Geeta Devi and Sarla Devi took out execution of the ex parte decree in O.S. No. 282/2002 filed by them before the Civil Judge, Kanpur.

5. The application is vehemently opposed by Geeta Devi and Sarla Devi. In the first place, it is contended that the application is not maintainable as the applicant had already transferred/assigned all his rights in favor of Geeta Devi and Sarla Devi against due consideration and, therefore, he is estopped from claiming any right under the agreement or in the suit. Further it is submitted that the decree being challenged has already been executed and sale deed in favor of Sarla Devi and Geeta Devi has already been executed. It is further submitted by the answering respondents that on 3-3-2002 the applicant requested for accommodation for few months which was refused by Geeta Devi and Sarla Devi which has annoyed the applicant who threatened Geeta Devi and Sarla Devi with dire consequences. It is disclosed further that on the evening of 3-3-2002, the applicant Tara Chand Jain put a lock over the lock of the plaintiff's accommodation. A civil suit in the Court of Civil Judge, Kanpur was filed and direction to remove the lock was issued.

6. As is clear from the narration of the facts given above, the applicant's prayer for setting aside the decree are threefold. In the first place, he says that he could not have transferred the right and, therefore, despite that he having executed and assigned the deed in favor Saroj Gupta, there was actually no valid assignment and, therefore, substitution of Geeta Devi and Sarla Devi as plaintiffs in the suit and compromise decree obtained by them against Saroj Gupta is bad. Secondly, he claims that even if Saroj Gupta transfers the property to Geeta Devi and Sarla Devi that could be possible only subject to the agreements executed by the defendant in his favor. Thirdly, he says that he was misled into execution of the Assignment Deed.

7. So far as the first two grounds are concerned, there is absolutely no force in any of them. The applicant having himself executed the Assignment Deed is estopped from saying that he had no right to assign any deed. Nor is there any bar in law for a party under an agreement to sell, to assign his right under the agreement to any third party. The applicant has duly received consideration money for executing the assignment deed. Although, he actually paid Rs. 25,000/- to the defendant, he obtained Rs. 3 lacs from those to whom he assigned his rights. There is no force in his arguments that the sale deed could be executed by the defendant subject to his rights. Nor is there any strength in his submission that he should have received the actual consideration money for the property from Geeta Devi and Sarla Devi because he had right to receive any such money for the sale of the property.

8. Coming to the question of fact that he was misled into entering into the agreement with Geeta Devi and Sarla Devi, I find that enquiry in this regard cannot be gone into in an application under Section 151 CPC. It is pertinent to mention here that although the applicant says that he was misled into entering into this assignment deed, he does not give the details as to how Geeta Devi and Sarla Devi misled the applicant or committed any fraud on him. He does not deny that the agreement was executed by him but says that this was without his consent. The enquiry required for trying the claim of the applicant cannot be done within the scope of Section 151 CPC. The same can be subject-matter of an independent suit as is held by the Supreme Court in the case of Dadu Dayal Mahasabha v. Sukhdev Arya and Anr. Referring to an old judgment of Sadho Saran Rai and Ors. v. Anant Rai and Ors. AIR 1923 Patna 483 Supreme Court laid down the following law in respect of efficacy of Section 151 CPC in dealing with the situations as the one at hand.

Let us consider the cases in which consent decrees are challenged. If a party makes an application before the court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fraudulent representation made to it that the party had actually consented to it. However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent has been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit. It was succinctly summed up in the aforementioned case that the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated.

9. The counsel for the applicant relies upon a judgment of the Supreme Court in the case of M/s East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. in which it has been provided that a decree passed without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. It was held in that judgment that the defect of jurisdiction strikes at the very authority of the court to pass any decree.

10. It is not a case of the applicant that the decree was passed without jurisdiction. This ruling does not deal with the scope of an enquiry under Section 151 CPC. In the case of East India Corporation Ltd.(supra), whether a decree was nullity was considered in a Special Leave Petition against the impugned decree itself and the decree was set aside in the appeal by the Supreme Court. The question here is whether this decree can be set aside or recalled in proceedings under Section 151 CPC. This question is not answered in the Supreme Court's judgment referred to by the applicant. This Court could have recalled the decree if the applicant had not signed the assignment deed and the record itself would have shown absence of any agreement. What the applicant wants to establish is that the agreement was bad on account of absence of consent. This kind of enquiry is clearly not permissible under Section 151 of the Civil Procedure Code.

The application IA No. 10840/2003 is, therefore, dismissed with costs assessed at Rs. 10,000/-.