Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 1014 (AP)

Israel v. G. Aruna Devi

2008-11-25

P.S.NARAYANA

body2008
JUDGMENT/DECREE/ORDER - Decree Setting aside of, on ground of fraud played on defendant - Proper remedy Civil Procedure Code 1908, Section 151 - Scope. Civil Procedure Code 1908 Section 151 - Scope - Petition under Section 151, to set aside decree on ground of fraud played on defendant, not maintainable - Serious factual controversies cannot be enquired into an application filed under Section 151 - Defendant may file separate suit for setting aside decree obtained by fraud - Present remedy sought is misconceived - Return of application by trial Court without numbering it, justified - CRP dismissed. In the elaborate affidavit filed in support of the application, several facts had been narrated and several allegations had been made as against one P. Anil Kumar, a builder, and also certain specific averments were made relating to taking of signatures on the alleged agreement of sale, on the written statement, vakalath which had been filed on behalf of the revision petitioner. The affidavit, in fact, is an elaborate affidavit running into 16 paras. As can be seen from the nature of averments made in the affidavit filed in support of the application, these are all factual controversies and these allegations relating to the fraud had been made, as against respondents-plaintiffs i.e., the parties and also one P. Anil Kumar who is said to be related to the 1st plaintiff i.e., the son of the 1st plaintiff. Certain submissions were made relating to the plea of limitation as well. [Para 6] In 2002 (5) ALD 502 (DB) the Division Bench of the High Court observed that if the' evidence on record discloses that one party has played fraud on the other party, in such event the only remedy leftover to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud, but if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 of the Code. It is no doubt true that when fraud had been played on Court and if the Court is satisfied, the Court always is empowered to recall such an order. It is no doubt true that when fraud had been played on Court and if the Court is satisfied, the Court always is empowered to recall such an order. However, as can be seen from the averments made in the written statement, it appears that since the execution of the agreement of sale was not put into controversy at all, the same had culminated into a decree. No doubt, now certain allegations are made under what circumstances the written statement was got filed, how the vakalat was obtained and certain other further facts. These serious factual controversies, in the considered opinion of this Court, definitely cannot be enquired into in an application filed under Section 151 of the Code. Even in this view of the matter, this Court is thoroughly satisfied that this remedy is a misconceived remedy. However, it is made clear that the observations if any made while returning this Interlocutory Application, may not come in the way of the petitioner, if the petitioner is advised to pursue his lawful remedies in accordance with law. Subject to the above observations, the civil revision petition shall stand dismissed. [Para 6] 2002 (5) ALD 502 (DB) - Followed. CASES CITED 1. A. V. Papayya Sastry and others v. Government of A.P. and others, 2007 (6) ALD 68 SC) = (2007) 4 SCC 22 [Para 6] 2. Anita v. R Rambilas, 2002 (5) ALD 502 (DB) [Para 6] 3. North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) by L.Rs., (2008) 8 SCC 511 [Para 6] ORDER :-Heard Sri Pratap Narayana Sanghi, the learned Counsel representing the petitioner and Sri M.S. Ramchandra Rao, the learned Counsel representing the respondents. 2. The present civil revision petition is filed as against an order made in I.A. (SR) No.1598/2008 in O.S. No.1540/1994 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad. The revision petitioner being aggrieved of the return of the application without numbering the said application filed under Section 151 of the Code of Civil Procedure praying for setting aside the decree in O.S. No.1540/94 dated 5.10.1994 having been obtained by the respondents plaintiffs by playing fraud on the defendant, had preferred the present C.R.P. 3. The revision petitioner being aggrieved of the return of the application without numbering the said application filed under Section 151 of the Code of Civil Procedure praying for setting aside the decree in O.S. No.1540/94 dated 5.10.1994 having been obtained by the respondents plaintiffs by playing fraud on the defendant, had preferred the present C.R.P. 3. Sri Pratap Narayana Sanghi, the learned Counsel representing the revision petitioner would maintain that the learned VI Junior Civil Judge, City Civil Court, Hyderabad totally erred in not registering the application and returning the application. The learned Counsel also explained the series of events and how these events would probablize the plea of fraud putforth by the revision petitioner. The learned Counsel also would maintain that in the light of the language of Section 151 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience), the application to set aside or to recall the decree of this nature which had been obtained by fraud definitely is maintainable. At any rate, fraud would vitiate everything and the decree is a nullity or non est in the eye of law and when that being so, the learned VI Junior Civil Judge, City Civil Court, Hyderabad instead of returning the application, could have numbered the application, inviting counter affidavit if any from the respondents and could have enquired into the allegations of fraud and could have made an order in accordance with law instead of returning the application without numbering the same. The Counsel also placed strong reliance on the material which had been produced before this Court and explained the improbabilities. While making submissions, the Counsel would maintain that even on a cursory glance of written statement, it is clear that no prudent man would have filed such written statement and apart from this aspect of the matter, when the decree was put into execution then having detected the fraud which had been played, the party approached the Court by narrating the facts in detail in support of the application. The Counsel also had taken this Court through the contents of the affidavit filed in support of the application and would maintain that in the light of the averments, made in the affidavit filed in support of the application, since serious allegations relating to fraud had been made, the application under Section 151 of the Code to be entertained and suitable directions to be issued to further proceed with the said enquiry in accordance with law after giving opportunity to the opposite parties. The Counsel also relied on certain decisions to substantiate his submissions. 4. Per contra, Sri MS. Ramchandra Rao, the learned Counsel representing the respondents had taken this Court through the reasons which had been recorded by the learned VI Junior Civil Judge, City Civil Court, Hyderabad and further the learned Counsel would contend that even if the averments made in the affidavit filed in support of the application to be taken as they are, since no counter-affidavit as such had been filed, since the same was returned at the un-numbered stage, at the best, it may be a case of fraud played against a party and not as against the Court and hence the remedy of filing an application under Section 151 of the Code is a misconceived remedy. The Counsel also would further submit that even otherwise several allegations were made as against one P. Anil Kumar, who is a non-party to the present litigation O.S. No. 1540/94. Even in this view of the matter, the remedy if any available to the revision petitioner may be elsewhere but not by filing an application under Section 151 of the Code. While further elaborating his submissions, the learned Counsel also demonstrated how all the events were within the knowledge of the revision petitioner and how with a mala fide intention the revision petitioner thought of this application and made an attempt to defeat the realization of the fruits of the decree. The Counsel would contend that this would go to show that this application is not a bona fide one. The Counsel also placed reliance on certain decisions. 5. Heard the Counsel. 6. The present C.R.P. had been preferred by the unsuccessful petitioner as against an order made in I.A.S.R. No.1598/ 2008 in O.S. No.1540/1994 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad. The Counsel also placed reliance on certain decisions. 5. Heard the Counsel. 6. The present C.R.P. had been preferred by the unsuccessful petitioner as against an order made in I.A.S.R. No.1598/ 2008 in O.S. No.1540/1994 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad. The learned VI Junior Civil Judge, City Civil Court, Hyderabad, after recording reasons came to the conclusion that the application is not liable to be numbered and accordingly returned the same. The said application was filed by the revision petitioner under Section 151 of the Code praying for setting aside of the decree in O.S. No.1540/94 dated 5.10.1994 as having been obtained by respondents-plaintiffs by playing fraud on the defendant - Revision Petitioner and for certain other suitable reliefs. In the elaborate affidavit filed in support of the application, several facts had been narrated and several allegations had been made as against one P. Anil Kumar, a builder, and also certain specific averments were made relating to taking of signatures on the alleged agreement of sale, on the written statement, vakalath which had been filed on behalf of the revision petitioner. The affidavit, in fact, is an elaborate affidavit running into 16 paras. As can be seen from the nature of averments made in the affidavit filed in support of the application, these are all factual controversies and these allegations relating to the fraud had been made, as against respondents-plaintiffs i.e., the parties and also one P. Anil Kumar who is said to be related to the 1st plaintiff i.e., the son of the 1st plaintiff. Certain submissions were made relating to the plea of limitation as well. The Counsel for the revision petitioner placed strong reliance on A. V. Papayya Sastry and others v. Government of A.P. and others, 2007 (6) ALD 68 (SC) = (2007) 4 SCC 221 and North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) by L.Rs., (2008) 8 SCC 511 . The learned Counsel representing respondents placed strong reliance on the decision of the Division Bench of this Court in Anita v. R. Rambilas, 2002 (5) ALD 502 (DB). The learned Counsel representing respondents placed strong reliance on the decision of the Division Bench of this Court in Anita v. R. Rambilas, 2002 (5) ALD 502 (DB). The Division Bench observed that if the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy leftover to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud, but if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 of the Code. It is no doubt true that when mud had been played on Court and if the Court is satisfied, the Court always is empowered to recall such an order. However, as can be seen from the averments made in the written statement, it appears that since the execution of the agreement of sale was not put into controversy at all, the same had culminated into a decree. No doubt, now certain allegations are made under what circumstances the written statement was got filed, how the vakalat was obtained and certain other further facts. These serious factual controversies, in the considered opinion of this Court, definitely cannot be enquired into in an application filed under Section 151 of the Code. Even in this view of the matter, this Court is thoroughly satisfied that this remedy is a misconceived remedy. However, it is made clear that the observations if any made while returning this Interlocutory Application, may not come in the way of the petitioner, if the petitioner is advised to pursue his lawful remedies in accordance with law. Subject to the above observations, the civil revision petition shall stand dismissed. No order as to costs.