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2014 DIGILAW 222 (PAT)

Rekha Devi v. Binod Lal Tatak

2014-02-11

MUNGESHWAR SAHOO

body2014
ORDER 1. Heard the learned senior counsel, Mr. Rai Saurabh Nath, appearing on behalf of the petitioner and the learned counsel, Mr. Umakant Shukla, appearing on behalf of the respondent. 2. This civil revision application has been filed against the order dated 17.03.2011 passed by the learned Sub Judge IIIrd Gaya in Misc. Case No.5 of 2008/11 of 2009 arising out of execution case No.4 of 2007. 3. It appears that a partition suit was filed by the respondent being partition suit No.340 of 2005. The said suit was referred to the Lok Adalat for disposal. The said suit was disposed of on the basis of compromise and the Lok Adalat passed an Award on 19.11.2005. 4. The present petitioner filed partition suit No.360 of 2005 claiming 50 per cent share in the suit property and subsequently on amendment, the petitioner also challenged the Award passed by the Lok Adalat on the ground of fraud and without consent, the Award was passed by the Lok Adalat. The said partition suit No.360 of 2005 was decreed primarily holding that the Award was obtained by the respondent without getting the signature of the petitioner on the compromise application and it was obtained without the consent of the present petitioner, therefore, ultimately the Court below held that the Award passed by the Lok Adalat is a nullity. 5. After preliminary decree, a final decree was passed. The pleader Commissioner report was confirmed. On the basis of this final decree, the petitioner filed execution case No.4 of 2007. In the said execution case, an objection under Section 47 C.P.C. was filed by the respondent challenging the executability of the decree on the ground that the decree passed by the Court below is illegal. This objection under Section 47 of the C.P.C. has been registered as Misc. case No.5 of 2008/11 of 2009. By the impugned order dated 17.03.2011, the executing Court held that the Award passed by the Lok Adalat operates as res judicata and the Court has no jurisdiction to set aside the said order. Accordingly, the objection was allowed and the execution case was held to be not executable. 6. The learned senior counsel, Mr. By the impugned order dated 17.03.2011, the executing Court held that the Award passed by the Lok Adalat operates as res judicata and the Court has no jurisdiction to set aside the said order. Accordingly, the objection was allowed and the execution case was held to be not executable. 6. The learned senior counsel, Mr. Nath, appearing on behalf of the petitioner submitted that the petitioner filed the subsequent partition suit claiming half share in the property and in that partition suit challenged the Award on the ground of fraud and on the basis of the evidences produced by the petitioner, the Court below recorded the finding that the petitioner who are the plaintiffs in partition suit No.360 of 2005 have been able to prove that without their signature, the respondent obtained the Award from the Adalat. According to the learned counsel, the decree can always be challenged on the ground of fraud by filing separate suit but the executing Court considering the decision of the Hon’ble Supreme Court in the case of State of Punjab Vs. Jalour Singh A.I.R. 2008 SC 1209= 2008 (2) SCC 660 held that the Court below has no jurisdiction to set aside the Award because the suit is barred under Section 21 of the Legal Service Authority Act, 1987. The executing Court held that only remedy of the petitioner was to approach the High Court under Article 226 or 227 of the Constitution of India. Therefore, according to the learned counsel, the executing Court has approached the case in wrong angle and has wrongly held that the suit filed by the petitioner on the ground of fraud is not maintainable. 7. On the other hand, the learned counsel, Mr. Shukla, appearing on behalf of the opposite party submitted that in any view of the mater, the Award of the Lok Adalat cannot be challenged by filing a separate suit. The only remedy was to approach the High Court under Article 226 and/or Article 227 of the Constitution of India. The learned counsel strongly relied upon the decision referred to above AIR 2008 SC 1209 . 8. Section 21 sub Section 2 of the Legal Service Authority Act, 1987 provides that every Award made by a Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against the Award. 8. Section 21 sub Section 2 of the Legal Service Authority Act, 1987 provides that every Award made by a Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against the Award. It may be mentioned here that so far State of Bihar is concerned, no permanent Lok Adalat has been constituted under Section 22 of the Legal Service Authorities Act. The Lok Adalat which passed the Award in partition suit No.340 of 2005 is the Lok Adalat constituted under Section 19 of the Legal Service Authorities Act, 1987. 9. In the case of Interglobe Aviation Ltd. Vs. N. Satchidanand 2011 (7) SCC 463 , the Hon’ble Supreme Court has held that ‘it is needless to state that Legal Service Authority Act refers to two types of Lok Adalat. The first is a Lok Adalat constituted under Section 19 of the Act which has no adjudicatory functions or powers and which discharges purely conciliatory function. The second is a Permanent Lok Adalat established under Section 22-B(1) of the Legal Service Authority Act to exercise jurisdiction in respect of public unity services, having both conciliatory and adjudicatory functions. The expression “Permanent Lok Adalat” should refer only to Permanent Lok Adalats established under Section 22-B(1) of the Legal Service Authority Act and not Lok Adalats constituted under Section 19. However, in many States, when Lok Adalats are constituted under Section 19 of the Act for regular or continuous sittings, they are also called Permanent Lok Adalat even though they do not have adjudicatory functions.’ As stated above in the present case admittedly, the Lok Adalat which passed the Award earlier in partition suit No.340 of 2005 is a Lok Adalat constituted under Section 19 of the legal Service Authority Act. 10. 10. So far the decision relied upon by the learned counsel for the opposite party, i.e., State of Punjab (Supra), the Hon’ble Supreme Court at paragraph 12 has held that it is true that where an Award is made by the Lok Adalat in terms of settlement arrived at between the parties which is duly signed by the parties and annexed to the Award of the Lok Adalat, it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of civil Court and no appeal lies against it to any Court. In view of this decision of the Hon’ble Supreme Court the principle condition for execusability of the decree is that the compromise must be duly signed by the parties and annexed to the Award of the Lok Adalat. Here, according to the finding of the Court below in the Judgment and Decree passed in partition suit No.360 of 2005, the compromise application was filed without the signature of the present petitioner, therefore, the Award passed by the Lok Adalat was not based on the compromise duly signed by the parties. If the Award has been passed on the basis of the compromise duly signed by the parties then in that case only no appeal is maintainable and the only remedy of a party to the compromise is to approach the High Court under Article 226 or 227 of the Constitution of India. In the present case the fact is otherwise. On the basis of the evidences, there is clear finding that there is no signature of the petitioner and, therefore, the Court below held that the Award passed by the Lok Adalat is nullity. 11. A Division Bench decision of this Court in the case of Meena Choudhary Vs. Dr. Dilip Choudhary by terms of order dated 6.11.2009 passed in C.W.J.C. No.14426 of 2009 held that the petitioner will be entitled to invoke plenary jurisdiction of Civil Court to claim necessary relief on the ground of fraud. It appears that writ application was filed against the Award passed by the Lok Adalat on the ground of fraud. The Division Bench held that so far fraud is concerned, the Court in exercise of jurisdiction either under Article 226 or 227 of the Constitution of India, the High Court cannot investigate the same and, therefore, directed to approach the Civil Court. The Division Bench held that so far fraud is concerned, the Court in exercise of jurisdiction either under Article 226 or 227 of the Constitution of India, the High Court cannot investigate the same and, therefore, directed to approach the Civil Court. In the present case also admittedly, the petitioner filed the subsequent suit for partition challenging the Award of the Authority on the ground of fraud which was found to be correct. 12. So far exclusion of jurisdiction of the Civil Court is concerned, the Hon’ble Supreme Court in the case of Horil Vs. Keshav 2012 (2) B.L.J. 1 SC has held that Courts really skilled and experienced to try such issue are Courts constituted under the Code of Civil Procedure. Under Section 9, Civil Court has inherent jurisdiction to try all types of civil dispute unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. Therefore, it is the law laid down by the Hon’ble Supreme Court that so far the adjudication of fraud is concerned that can be tried only by the Civil Court having competent jurisdiction. There is no dispute that the question of fraud cannot be investigated by the High Court in writ jurisdiction either under Article 226 or 227 of the Constitution of India. 13. From perusal of the impugned order passed by the Court below, it appears that the Court below allowed the application filed by the opposite party under Section 47 of the Code of Civil Procedure holding that the Court which passed the Judgment has no jurisdiction without considering the above settled principle of law. The Court below held that the decree passed by the Lok Adalat is a nullity. It is settled principle of law that if the decree passed by the Court suffers from inherent lack of jurisdiction, it is not executable as it is a nullity. In the present case, it is not the case that the Civil Court which passed the decree in partition suit No.360 of 2005 has inherent lack of jurisdiction. It is another thing to say that the Judgment and Decree passed by the Court below is contrary to law, therefore, on this ground, it cannot be said that the Judgment and Decree is a nullity. It is another thing to say that the Judgment and Decree passed by the Court below is contrary to law, therefore, on this ground, it cannot be said that the Judgment and Decree is a nullity. It is the appellate Court can say only that the Judgment is illegal, therefore, it is to be set aside. While exercising power under Section 47 of the Code of Civil Procedure, the executing Court must remember that the power under Section 47 C.P.C. cannot be equated with the power of appeal revision or review. The power under Section 47 C.P.C. is very narrow and microscopic and lies in a very narrow inspection hole and the same cannot be exercised like a routine manner. In the present case, the Court below has gone into the merit of the Judgment and Decree passed by the Court below in partition suit. There is no finding that the Court has inherent lack of jurisdiction. In view of the above facts and circumstances of the case, the impugned order passed by the Court below is illegal and in fact the executing Court has acted with material irregularity. Therefore, the impugned order is unsustainable in the eye of law. 14. In the result, this civil revision is allowed. The impugned order is set aside. The objection filed by the petitioner under Section 47 CPC is hereby rejected. The Court below is directed to proceed with the execution case according to law. The lower Court record shall be send forthwith to the Court below by the office.