B. Sampath Kumar vs N.Arvind Kumar And 4 Others
2021 Latest Caselaw 2293 Tel

           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;

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

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

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

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