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2012 DIGILAW 67 (RAJ)

Balveer Kaur v. Rajendra Singh

2012-01-04

DINESH MAHESHWARI

body2012
Hon'ble MAHESHWARI, J.—By way of this petition, the petitioner-judgment-debtor, who has moved an application under Section 47 of the Code of Civil Procedure raising objections against execution of the decree passed on compromise by the Court of Additional District Judge, Sri Karanpur in Civil Suit No. 5/1998, seeks to question the orders dated 20.10.2011 (Annex. 6 and Annex. 7) whereby the learned Executing Court has rejected the applications moved on her behalf, purportedly under Order VI Rule 17 and Order VII Rule 14 (3) of the Code of Civil Procedure (CPC). 2. The relevant background aspects of the matter are that Shri Angrej Singh (since deceased and represented by the respondents Nos. 1 to 4 herein) had filed the civil suit aforesaid, claiming his rights in the land in question situated at Chak 37 RB, Tehsil Padampur, while joining the petitioner Balveer Kaur as defendant No. 1. In this suit, one Shri Pritam Singh was appearing as the power of attorney holder of the petitioner-defendant No. 1; and a compromise was allegedly placed by the said power of attorney holder of the petitioner before the Trial Court on 03.11.2007. On the basis of such compromise, the decree came to be passed in favour of the plaintiff. This decree having been put to execution, the petitioner filed her objections under Section 47 CPC. Though a copy of such objection petition has not been placed on record, however, as per the averments taken in this petition, the petitioner has alleged that the decree was a nullity for having been obtained by fraud; and that the compromise purportedly operates in relinquishment of her rights and such relinquishment could have been made only through a registered instrument. There appears another ground taken in the objection petition that the decree was a nullity for having been passed without challenging the validity of the order of the Minister concerned. 3. It appears from the material placed on record that in the said application under Section 47 CPC, the Executing Court has taken evidence and has heard the parties and the matter has reached the stage of final disposal. At such a belated stage, the aforesaid two applications came to be moved on behalf of the petitioner. 3. It appears from the material placed on record that in the said application under Section 47 CPC, the Executing Court has taken evidence and has heard the parties and the matter has reached the stage of final disposal. At such a belated stage, the aforesaid two applications came to be moved on behalf of the petitioner. It was suggested by way of the application under Order VI Rule 17 CPC that the petitioner had already revoked the power of attorney earlier given in favour of Shri Pritam Singh but then, the said attorney colluded with the plaintiff and presented the compromise on whose basis the decree in question came to be passed. The petitioner submitted that ultimately, upon the call of his inner conscience and in order to relieve himself of the weight of his misdeeds, the said erstwhile power of attorney-holder Shri Pritam Singh addressed one letter dated 26.04.2008 to one Shri Raj Singh admitting his clandestine deal; and that similar kind of communication was also addressed by him to another of his close friend Shri Jogendra Singh on 30.04.2008. The petitioner alleged that in those letters, Shri Pritam Singh urged the addressees to make a request to one Shri Iqbal Singh not to help the petitioner; and that the said Shri Iqbal Singh handed over such letters and envelopments to her present power of attorney holder Shri Gurvender Singh Siddhu. With these submissions, the petitioner sought permission to take the pleading in relation to the said letters. By way of another application under Order VII Rule 14 (3) CPC, the petitioner sought permission to file the said letters dated 26.04.2008 and 30.04.2008 alongwith their envelopments. The applications were put to contention by the decree-holder with the submissions that there was nothing on record showing revocation of the power of attorney of Pritam Singh and that the letters in question had been prepared while taking advantage of the fact that Balveer Kaur (the petitioner) and Pritam Singh were residing in America. It was also submitted that hearing had already been completed in the matter and at the given stage, such applications could not be allowed. 4. The learned Executing Court has considered and rejected the aforesaid two application by its separate orders of the even date, i.e., 22.10.2011. 5. It was also submitted that hearing had already been completed in the matter and at the given stage, such applications could not be allowed. 4. The learned Executing Court has considered and rejected the aforesaid two application by its separate orders of the even date, i.e., 22.10.2011. 5. The learned Executing Court, after referring to the stand of the parties and the cited decisions, has rejected the application filed under Order VI Rule 17 CPC with the following observations:- ^^mijksä uthjsa flfoy okn esa ,d vfrfjä u;k vk/kkj ;k mÙkjorhZ ifjorZu ds vk/kkj ij la'kks/ku ls lEcfU/kr gSA ;g izdj.k flfoy okn u gksdj btjk; ls lEcfU/kr gSA btjk; ls lEcfU/kr izdj.k flfoy okn la[;k 5@98 dk fuLrkj.k fnukad 3-11-2007 o fnukad 12-11-2007 dks gks pqdk gSA izkFkhZ;k cyohj dkSj }kjk viuh ikWoj vkWQ vVksuhZ foMªk dj yh xbZ Fkh rFkk mlds ihNs ls izhreflag eq[kR;kjvke }kjk jkthukek dj fy;k x;k] btjk; esa ;g vkifÙk ugha yh tk ldrhA vr% bl Lrj ij vkns'k 6 fu;e 17 flfoy izfØ;k lafgrk dk izkFkZuk i= pyus ;ksX; ugha gSA** 6. The other application under Order VII Rule 14 (3) has also been rejected with the following observations:- ^^izkFkhZ;k }kjk nLrkost fjdkMZ ij ysus ds fy, izkFkZuk i= is'k fd;k x;k gSA blls lEcfU/kr ewy okn dk fuLrkj.k flfoy okn la[;k 5@98 fnukad 3-11-2007 o 12-11-2007 dks fMØh gks pqdk gSA bl btjk; ds izkFkZuk i= esa izLrqr vkns'k 6 fu;e 17 flfoy izfØ;k lafgrk dk izkFkZuk i= Hkh fnukad 22-10-2011 dks vLohdkj fd;k tk pqdk gS ,slh fLFkfr esa bu nLrkostkr dks fjdkMZ ij fy, tkus dk dksbZ vkSfpR; ugha gSA QyLo:i izkFkhZ;k dk izkFkZuk i= [kkfjt fd, tkus ;ksX; gSA** 7. Assailing the orders aforesaid, the learned counsel for the petitioner has strenuously argued that the learned Executing Court has proceeded with illegality and has rejected the applications on entirely irrelevant considerations while ignoring the relevant facts and the law applicable to the case including the decisions of the Hon'ble Supreme Court. The learned counsel has referred to paragraphs 15 & 16 in the decision of the Hon'ble Supreme Court in the case of Urban Improvement Trust, Jodhpur vs. Gokul Narain & Anr.: AIR 1996 SC 1819 = RLW 1996(2) SC 122 and submitted that the question of nullity of the decree could be raised at any stage. The learned counsel has referred to paragraphs 15 & 16 in the decision of the Hon'ble Supreme Court in the case of Urban Improvement Trust, Jodhpur vs. Gokul Narain & Anr.: AIR 1996 SC 1819 = RLW 1996(2) SC 122 and submitted that the question of nullity of the decree could be raised at any stage. The learned counsel submitted that the said decision in Gokul Narain's case was cited before the learned Executing Court but the same has not even been taken note of. The learned counsel further submitted that the observations as made by the learned Executing Court that the objections about the revocation of the power-of-attorney and fraud behind the decree could not be taken before it are contrary to the law declared by the Hon'ble Supreme Court; and the principles remain that the fraud vitiates the judicial acts and the judgment and decree obtained by fraud is to be treated as non-est and nullity and could be challenged in any Court at any time, as held by the Hon'ble Supreme Court in the case of A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors. : (2007) 4 SCC 221 . The learned counsel further submitted that the petitioner has bona fide made the prayer for amendment for the purpose of determination of real questions in controversy and for production of the documents, as came in possession later but having a direct bearing on the questions involved; and such a prayer ought to have been allowed. 8. After having given a thoughtful consideration to the submissions made on behalf of the petitioner and after having perused the material placed on record, this Court is unable to find any jurisdictional error in the impugned orders dated 22.10.2011 so as to call for interference in the supervisory jurisdiction under Article 227 of the Constitution of India. 9. The fact of the matter remains that the petitioner has moved an application under Section 47 of the Code of Civil Procedure. The application is said to be pending but therein, the parties have led their evidence and as per the observations in the orders impugned, even the final hearing was over. 9. The fact of the matter remains that the petitioner has moved an application under Section 47 of the Code of Civil Procedure. The application is said to be pending but therein, the parties have led their evidence and as per the observations in the orders impugned, even the final hearing was over. The attempt on the part of the petitioner to supplement the record by taking other pleadings and that too with reference to uncertain nature evidence, if not permitted at such a belated stage, the approach of the Executing Court cannot be said to be erroneous or suffering from any illegality. Although it would have been discreet on the part of the Executing Court that the observations as made in the concluding paragraphs were withheld and were not made before taking a final view of the matter on the application moved under Section 47 of the Code of Civil Procedure but such a shortcoming in the orders of the Executing Court does not take away the substance of the matter that the applications were made by the petitioner after the Executing Court had gone ahead with the application under Section 47 CPC and the evidence of the parties had been concluded. Apart that the petitioner has merely suggested such uncertain nature evidence, of some alleged letters written by Pritam Singh to his alleged friends or acquaintance in the year 2008, it is not shown as to why such letters, if at all of any bearing, were not produced at the relevant time. In the name of objection to the execution of the decree, the petitioner could not have asked for a roving inquiry into uncertain facts and that too at the belated stage. 10. The suggestion about nullity of the decree, if at all sought to be made, ought to have been put up at the very initial stage when the petitioner moved the application under Section 47 CPC. With reference to the decision of the Hon'ble Supreme Court in the case of A.V. Papayya Sastry (supra), the petitioner does not get a liberty that after inviting the Court to try its application under Section 47 CPC, at the late stage after evidence and hearing, she would like to suggest some other or more facts on the alleged ground of fraud that were not suggested earlier. It is a different matter of making allegations of fraud and it is a different matter that in the name of allegation of fraud, a person seeks permission to go on supplementing the pleadings and evidence. The Executing Court, if has not permitted such a course, its approach cannot be said to be violating any statutory requirement or leading to failure of justice. The decision in Gokul Narain (supra) has hardly any bearing on the facts of the present case. In fact, from the said decision, the principle does emerge that the expression 'nullity' has to be understood in the sense that the decree is ultra-vires the power of the Court passing the decree and not merely an avoidable decree. It not a case that the Court concerned that passed the impugned decree in the present case was lacking in jurisdiction in doing so. The case about fraud as sought to be suggested by the petitioner, as noticed, does not relate to the jurisdiction in the Court concerned. 11. A copy of the application under Section 47 CPC is not before the Court and, therefore, this Court would refrain from making any comment on its contents but if the aspect of fraud has been suggested therein, as indicated in paragraph 8 of this petition, consideration thereof shall be open for the Executing Court in accordance with law. However, for the purpose of such consideration, the Executing Court could not have permitted the petitioner to go on supplementing the record and to seek further inquiry on the basis of uncertain suggestions. 12. Thus, so far this writ petition is concerned, there appears no scope for interference. The petition fails and is, therefore, dismissed.