Didar Singh vs Harbans Kaur & Ors.
2014 Latest Caselaw 4998 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Reserved on: 04.02.2014
                                                   Date of Decision: 01.10.2014

+                            CM (M) No.662 of 2013

DIDAR SINGH                                                 ...... Petitioner
                        Through:   Mr. Sanjiv Bahl & Mr. Vikrant Arora, Advs.

                                      versus

HARBANS KAUR & ORS.                                          ..... Respondents
             Through:              Mr. Amandeep Singh, Adv. for R-1 & 7.
                                   Mr. Pratap Singh, Adv. for R-2 & 3.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

1. This petition impugns an order dated 15.4.2013 whereby the Executing Court, on the objection of the respondent, has framed the following issue:

"1.Whether or not the decree has been obtained by playing fraud? Onus to prove on the parties."

2. The petitioner's case is that the suit was decreed in his favour vide judgement and decree dated 31.5.2005 in Suit No.463/1996. It had attained finality since the appeal against the said order was dismissed by this Court. The respondents/objectors' claim was based upon the same documents, which had already been dealt with in the earlier proceedings; that the appeal against the judgement and decree dated 31.5.2005 was confirmed in appeal by the order of the Appellate

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Court on 21.5.2008; that the warrants of possession for plot/property No.144 in khasra No.13/23, Guru Nanak Nagar Post Office, Tilak Nagar, Delhi were resisted by the occupants, hence it could not be executed. The three suits filed by the occupants/respondent Nos.1 to 3 were dismissed on the ground that all questions had already been decided by the executing court and their separate objections/applications before the executing/Trial Court was also dismissed on 26.9.2011; the CM (Main) preferred by the respondents against the said order was subsequently withdrawn by them on 4.1.2012.

3. Mr. Sanjiv Bahl,the learned counsel for the petitioner, submitted that respondent No.2 preferred CM (M) No.904/2012; that the impugned order was passed despite being the matter pending before this Court, hence it ought not to have passed the impugned order and indeed went beyond the jurisdiction vested in it by law. He submits that after the judgement and decree had attained finality the executing court had no jurisdiction to frame the issue which it did, accordingly he submits that the impugned order suffers from material irregularity and ought to be set aside.

4. In response the learned counsel for the respondents submits that there is no error in the impugned order but it only seeks to determine whether the decree had been obtained by playing a fraud. In support of his contention learned counsel relied upon the judgement in United India Insurance Co. Ltd. V. Rajender Singh & Ors. 2000 (3) SCC 581 which held that "Fraud and justice never dwell together" (fraus et

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jus nunquam cohabitant). He further relied upon the judgement of the Supreme Court in S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. AIR 1994 SC 853 wherein it was held as under:

"Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Code about three centuries ago. It is the settled proposition of law that a judgment or decreed 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 higher Court ---- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."

The learned counsel also relied upon the judgement in Indian Bank v/s Satyam Fibres (India) (P) Ltd.

"Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order."

5. The learned counsel submits that fraud vitiates everything and it was manifest in the suppression of vital facts besides he contends that additionally the suit was barred under Section 11 as well as Order II Rule 2 CPC.

6. Evidently the Trial Court was of the view that Banta Singh had entered into an agreement to sell with the real owners, Molar and

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Kachheru, but he failed to perform his part of the contract, therefore the said agreement stood cancelled automatically. The suits filed by him against the sellers to claim his right, title and interest over the property could not succeed. Even the appeals filed by him were dismissed for want of physical possession. Indeed Banta Singh and his associates could not deliver possession of the property hence they were convicted under Sections 420 and 406 of the IPC. The Court was of the view that the allegation of decree having been obtained by fraud could not be decided on the basis of arguments, therefore, it would be appropriate to lead evidence. The Court had relied upon S.P. Chengalvaraya Naidu (supra) for taking the view that a decree can be challenged in any court even in collateral proceedings where it has been obtained by playing fraud upon the Court, since such judgement and decree would be a nullity and non est in the eyes of law.

7. This Court in a related petition CM(M) No.908/ 2012 has held that the judgment and decree having attained finality could not be looked into at this stage. The sale deed and the execution thereof in favour of Sh. Molar stood cancelled. If Sh. Molar had no right in the property in the first case, he could not have transferred the same to a subsequent purchaser. For a case to be made out under the Transfer of Property Act , the property and rights therein must legitimately exist.

8. Having considered the arguments of the learned counsel for the parties this Court is of the view that the judgement and decree had attained finality and the Trial Court ought not to have framed the

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issue.

9. In view of the aforesaid, the petition is allowed and the order dated 15.4.2013 is set aside.

OCTOBER 01, 2014                                   NAJMI WAZIRI, J.
b'nesh

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