Shaik Rasool Bee And Another vs Kalpagiri Venkaiah And 23 Others
2022 Latest Caselaw 6802 Tel

Citation : 2022 Latest Caselaw 6802 Tel
Judgement Date : 14 December, 2022

Telangana High Court

Shaik Rasool Bee And Another vs Kalpagiri Venkaiah And 23 Others on 14 December, 2022

Bench: K.Surender

           HON'BLE SRI JUSTICE K.SURENDER

      CIVIL REVISION PETITION No.1770 OF 2022
ORDER:

1. The petitioners, who are defendants 1 and 2 in the

suit, filed I.A.No.74 of 2022 under Order VII Rule 11 (a) &

(d) r/w Section 151 CPC praying the Court to reject the

plaint of the plaintiffs/respondents.

2. Briefly, the facts of the case are that the plaintiffs filed

the suit; i) to declare the final decree/Award passed by the

Lok Adalat Bench, Suryapet in O.S.No.8 of 1998 in the

Court of Senior Civil Judge, Suryapet dated 25.03.2017 as

void and a result of fraud and collusion, not binding the

plaintiffs in the suit properties; ii) to pass decree for

perpetual injunction restraining the defendants(petitioners

herein), their family members from causing interference in

possession and enjoyment of the plaint schedule properties.

3. The petitioners who are defendants in the Suit filed

petition for rejecting the said Plaint mainly on the ground

that the very same Court where the suit was decreed has to

decide and adjudicate upon the claim of the plaintiffs that

fraud was played or not and separate suit cannot be

maintained before the Court. As per Section 47 of CPC any

question relating to execution and discharge have to be

decided by the Court executing the decree and not by way of

separate suit, for which reason, the suit is being hit under

Section 47 of CPC, has to be rejected. Several other grounds

on facts are also raised before the Court below.

4. For the sake of convenience, Order VII Rule 11 of CPC

is extracted hereunder:

"11. Rejection of plaint.- The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails comply with the provision of Rule 9."

5. The trial Court has relied upon the judgment of

Hon'ble Supreme Court in the case of S.P.Chengalvaraya

Naidu v. Jagannath (dead) by LRs and others [(1994) 1 SCC

1], wherein the Hon'ble Supreme Court held that decree

obtained by playing fraud on the ground would be a nullity

and non-est in the eyes of law. Further, such decree

proceedings can be challenged in any court even in

collateral proceedings. Basing on the dictum of the Hon'ble

Supreme Court, the trial Court found it appropriate to

dismiss the claim of the petitioners/defendants in the main

suit in rejecting the plaint.

6. Section 47 of CPC is extracted below-Section \

" Questions to be determined by the Court executing decree (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and 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. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. 2[Explanation 1.-- For the purposes of this section, a plaintiff whose

suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.-- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]"

7. The disputes which can be entertained under section

47 is confined to or in relation to execution, discharge or

satisfaction of the decree. A decree obtained by fraud does

not fall within any of the three contingencies mentioned in

section 47.

8. A reading of the plaint would reveal several instances

of cause of action and narrated by the lower Court in its

order, for which reason, prayer for rejection of the plaint

cannot be entertained. Written arguments are filed and

several factual grounds are raised by the petitioner, which

are not germane to the present adjudication.

9. For both the reasons of plaint making out a clear