Madras High Court
S.Gunasekaran vs Ganesan on 21 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP (NPD) No. 111 of 2017
And
C.M.P.No. 524 of 2017
S.Gunasekaran ... Petitioner/Respondent/Defendant
Vs
Ganesan ... Respondent/Petitioner/Plaintiff
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, against the fair and decreetal order dated 18.10.2016
made in R.E.A.No. 64 of 2014 in R.E.P.No. 41 of 2013 in O.S.No. 442 of
2004 on the file of the District Munsif Court, Dharmapuri.
***
For Petitioner : Mr. R. Karthikeyan
For Respondent : Mr. P.Mathivanan
ORDER
This Civil Revision Petition has been filed by the defendant in
O.S.No. 442 of 2004 pending on the file of the District Munsif Court,
Dharmapuri, who had suffered an exparte decree by Judgment dated
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04.03.2005. Very unfortunately, the present petitioner had not filed
written statement in the said suit and hence an exparte decree was passed.
Probably because Order 8 Rule 5 CPC had been pressed into service,
where if there is no specific denial, then it could be reasonably presumed
that the defendant has admitted to the averments in the plaint.
2. Even otherwise, the respondent herein/plaintiff having
obtained a decree in a suit which had been filed on the strength of a
promissory note is yet to realise the fruits of the decree. That decree was
obtained in the year 2005. Putting the decree to execution was not a
smooth affair. There were applications filed to set aside the ex-parte
decree. There were grounds raised which again questioned the
maintainability of the suit itself. A Revision Petition came to be filed
before this Court and orders in favour of the decree holder where passed.
Finally, the Executing Court had transmitted the decree to the Principal
District Munsif Court at Dharmapuri.
3. It is stated by the learned counsel for the petitioner herein that
the petitioner had taken a plea under Section 20 of the Code of Civil
Procedure. Whether a plea under Section 20 of CPC is taken or not if a
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suit was instituted in a wrong Court or rather a Court which has no
territorial jurisdiction, then, the proper approach would be to transfer the
suit to the Court of competent jurisdiction. The plaint would still be
maintainable but in a Court of competent jurisdiction.
4. It is also complained by the learned counsel for the revision
petitioner that originally an application had been filed to transmit the
decree to the Principal District Munsif Court at Dharmapuri and that said
application was withdrawn and later, another application had been filed
for similar relief and on the basis of that particular application, the decree
passed by the Sub Court, Mettur, had been transmitted to the Principal
District Munsif Court at Dharmapuri. After the transfer of the decree, an
Execution Petition had been filed at Dharmapuri wherein the petitioner
herein had filed R.E.A.No. 64 of 2014 in R.E.P.No. 41 of 2013. The said
R.E.A.No. 64 of 2014 was filed taking advantage of Section 47 of CPC.
5. The learned counsel for the revision petitioner relied on 1996
(4) SCC 178 [Urban Improvement Trust, Jodhpur Vs. Gokul Narain
and another]. That matter arose from Land Acquisition proceedings
wherein an application under Section 47 of CPC had been filed. In that
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particular case, it was found that the decree was a nullty and was non est.
It was specifically found that the payment of an additional amount was
independent of the compensation determined and was not part of the
component of the compensation for the value of the acquired land. The
Hon'ble Supreme Court had therefore interfered with the decree. The facts
of that case are distinguishable and the Judgment would not help the cause
of the petitioner herein.
6. The learned counsel for the petitioner also relied on 2007 (4)
SCC 221 [A.V.Papayya Sastry and Others Vs. Government of A.P., and
Others] wherein, the Hon'ble Supreme Court had held that any Judgment
or order impinged by fraud cannot be said to be a Judgment or order in
law.
7. In the instant case, the petitioner had not even pleaded fraud or
was fraud spoken to by the witness who adduced evidence in the
application filed under Section 47 CPC. The witness only spoke of facts
relating to Section 20 CPC with respect to Court where the suit was
instituted. The present petitioner had not even filed his written statement
and therefore, there cannot be any imputation of fraud raised at the time of
execution.
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8. In the instant case, an exparte decree was passed based on a
promissory note in which execution and the signature had been admitted
by the defendant/ petitioner herein.
9. The learned counsel for the petitioner then relied on 2011 (2)
CTC 88 (Mad), [P.S.G. Ganga Naidu 7 Sons Charities Vs. The Special
Commissioner and Commissioner -land Reforms/land Commissioner,
Ezhilagam, Chepauk, Chennai -5 and others]. That case related to
Section 123 of the Transfer of Property Act with respect to a gift and the
effect of non registration of a gift deed. The provision under Section 123
is very clear that any gift deed by which immovable property is given by a
Donar to a Donee, apart from acceptance by the Donee, the document
must be registered.
10. In this connection, reliable reference can also be made to
Section 17 of the Registration Act and also to Section 49 of the
Registration Act which both deal with the effect of non registration of a
document which is compulsorily registered.
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11. The facts in the present case are totally different and this
Judgment would not be of any help to the petitioner herein.
12. The learned counsel for the petitioner then relied on 2011 (2)
CTC 340 (SC), [Sarup Singh and another Vs. Union of India and
Another], which again related to Land Acquisition proceedings Act and
the issue was whether the claimants can seek benefit of the provisions
which came into effect by the Amendment Act. The Hon'ble Supreme
Court examined the applicability of the Amendment Act to the Land
Acquisition Act 1894 and with particular reference to Section 30(2) of the
Act.
13. It was stated that the Judgment of the High Court which granted
the said benefit under the Amendment Act cannot be made applicable to
the case of the appellants therein. It had been stated that even though an
Executing Court cannot can go beyond the decree, it can still be
challenged at any stage.
14. In the instant case, the suit was based on a promissory note,
which promissory note indicate that consideration had been passed and the
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present petitioner herein had appended his signature to the promissory
note undertaking to repay on demand to the loan received. The Judgment
cited by the counsel is not applicable to the facts of this particular case.
15. The learned counsel for the petitioner then relied on 2012 (1)
SCC 476 [Union of India and others Vs. Ramesh Gandhi], wherein the
Hon'ble Supreme Court was concerned with quashing of a FIR. It was
stated that the High Court, though a Court of Subordinate jurisdiction can
enter into a question whether the Judgment of a superior Court was
obtained by playing fraud on the Court since such a Judgment is nullity
and has to be treated as non est by every Court. It was stated that a First
Information Report had been filed pursuant to alleged conspiracy to secure
illegal and wrongful gain. The First Information Report was quashed on
the ground that supply of coal by a PSU coal company was made in terms
of a decision of the High Court directing supply of coal. That direction
was affirmed by the Hon'ble Supreme Court. It was stated that Courts can
examine the correctness of the contents of First Information Report at any
point of time.
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16. A First Information Report is an information given to a Station
House Officer, about the probable commission of offence. It is just an
information and that information, since it relates to an offence and if it
also relates to a cognizable offence, is entered into and registered in the
First Information Report register. Thereafter, investigation commences on
the basis of such information given. If that particular information is found
to be fraudulent naturally at any point of time, a Court can examine that
particular fact at any point of time.
17. In the instant case, a suit on the basis of a promissory note is
exercise of a civil right. The Judgment cited, unfortunately, will not
advance the case of the revision petitioner.
18. The learned counsel for the revision petitioner then relied on
2018 (1) MWN (Civil) 710 (Mad) [Rajesh Lakshmi Chand Vs.
E.Maheswari and Others]. That case was with respect to a suit for
specific performance which was decreed. The decree was sought to be
executed against all the members of a joint family. One of the members of
the joint family had filed a suit for partition against the other members and
had obtained an exparte preliminary decree. During the final decree
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proceedings, the property which was the subject matter of the specific
performance suit was allotted to the share of the plaintiff. The plaintiff
challenged the decree passed in the suit for specific performance as a
nullity. It was found that the members of the family had joined together
and one of them had instituted a suit against the other members of the
family and the defendants remained ex-parte. Therefore, it was held fraud
is evident.
19. In the instant case, the defendant remained exparte, voluntarily
and had not filed any written statement. He cannot claim to be a member
of a family of the plaintiff. If by this particular decree, a third party were
to complain that the plaintiff and the defendant had colluded between
themselves, then on the application of such third party, a decree can be
interfered with. But here the defendant himself pleads fraud without any
materials. This particular judgment will also be of no help to the learned
counsel for the petitioner herein.
20. It is urged by the learned counsel for the petitioner that the
respondent/plaintiff had committed an act of fraud in the sense that he had
not disclosed his source of money for lending to the petitioner herein. It is
also stated that the petitioner had actually transaction with yet another
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person, who had used the respondent/plaintiff as a puppet to institute the
suit. These are all issues which can be examined only if a written
statement had been filed and the parties had grazed the witness box on the
basis of the pleading and had subjected themselves for cross examination.
21. The learned counsel for the respondent has relied on a
Judgment reported in 2017 (8) SCC 837 [Vijay Singh Vs. Shanti Devi
and Anothers], wherein the Hon'ble Supreme Court examined the effect of
an exparte decree and the legality and binding effect of such an exparte
decree.
22. It was very specifically held that an exparte decree has the same
force, as a decree passed on contest. It was also held that it is legal and
binding on the parties.
23. In the instance case, even though the respondent has filed an
execution petition on the basis of the exparte decree, still since the
document under question, namely, promissory note had been examined as
a document during the course of trial, when it was marked as a document,
there cannot be any question of fraud being perpetrated as alleged by the
petitioner herein.
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24. The Executing Court, unfortunately cannot go beyond the
decree and cannot taken up a specious plea, when it had not been taken in
the suit. The Executing Court has to function within the four corners of a
decree. The learned Principal District Munsif, Dharmapuri, had also
opined the same and though six witnesses had been examined on behalf of
the revision petitioner herein, their evidence had been found to be
unconvincing.
25. I find no irregularity in the order under Revision and therefore,
it is upheld and this Civil Revision Petition stands dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
vsg 21/03/2022
Index: Yes/No
Speaking order / Non speaking order
To:
1. District Munsif Court, Dharmapuri.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis C.V.KARTHIKEYAN, J.
Vsg
CRP (NPD) No. 111 of 2017
And
C.M.P.No. 524 of 2017
21.03.2022
https://www.mhc.tn.gov.in/judis
