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2017 DIGILAW 186 (KAR)

RAVISHANKAR v. JAYAMMA

2017-02-01

B.V.NAGARATHNA

body2017
ORDER : Petitioner is respondent No.4 in FDP No.12/2010. That proceeding is pending on the file of the Principal Civil Judge and JMFC, Channapatna. The final decree proceedings arises out of the judgment and decree passed in O.S.No.72/1982. In fact, the decree of the trial Court has been affirmed by the Hon’ble Supreme Court. 2. Learned counsel for the petitioner submits that a part of the decree has also been given effect to and all that remains was for calculation of the mesne profits. It is in that regard that the plaintiff filed FDP No.12/2010 before the trial Court. In response to the petition filed by the first respondent-plaintiff, the petitioner herein filed his statement of objections. Thereafter, an application was filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking amendment of the statement of objections so as to incorporate certain facts which, according to the petitioner herein, came to light subsequently and so as to establish that the respondent plaintiff in fact had no right, title and interest in the property so as to seek relief in the suit. The trial Court by the impugned order dated 13.12.2016 has dismissed that application. Being aggrieved, this writ petition has been preferred. 3. I have heard learned counsel for the petitioner and perused the material on record. 4. While drawing my attention to the averments made in the application filed under Order VI Rule 17 of the CPC, learned counsel submitted that the object and purpose of amending the statement of objection was to bring to the notice of the trial Court that the decree obtained by the first respondent-petitioner was fraudulent in the sense that she had no right, title or interest in the property and yet had obtained a decree in respect of that property. In support of his submission he placed reliance on two judgments of the Hon’ble Supreme Court in the case of S.P. Chengal varaya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and others (1994) 1 SCC 1 and A.V.Papayya Sastry and others Vs. In support of his submission he placed reliance on two judgments of the Hon’ble Supreme Court in the case of S.P. Chengal varaya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and others (1994) 1 SCC 1 and A.V.Papayya Sastry and others Vs. Government of A.P. and others (2007) 4 SCC 221 , to contend that, at any stage of proceeding the Court can go into the question as to whether there was any fraud or abuse of the process of the Court in obtaining a decree so as to give a finding as to whether the decree could be executed further or not. He submitted that the trial Court ought to have allowed the proposed amendment of the statement of objection so that in that regard a finding could have been given, as to whether the decree obtained by the first respondent herein was fraudulent or not and further whether she was entitled to mesne profits. 5. Having heard learned counsel for the petitioner and on perusal of the material on record it is noted that though the decree of the trial Court has been affirmed by the Hon’ble Supreme Court, that may not be an impediment in order to assail the same if it has been obtained by fraud. In fact in A.V. Papayya Sastryreferred to above the Hon’ble Supreme Court has observed that, even if a judgment of the trial Court has been affirmed by a higher Court as also by a Supreme Court, such judgment would not be open to review, recall or reconsideration, subject to one exception that in the case of fraud. Once it is established that the order was obtained by a successful party by practicing fraud, it is vitiated, then such a judgment would become nullity, non est and therefore cannot be given effect to. In S.P. Chengalvaraya Naidualso the Hon’ble Supreme Court has held that if a decree has been obtained by fraud, then such a decree cannot be given effect to. 6. Learned counsel for the petitioner submitted that, in case the preliminary decree for partition and separate possession and for mesne profits in the instant case is held to be fraudulent then the Executing Court while considering the said preliminary decree cannot grant a final decree. 6. Learned counsel for the petitioner submitted that, in case the preliminary decree for partition and separate possession and for mesne profits in the instant case is held to be fraudulent then the Executing Court while considering the said preliminary decree cannot grant a final decree. In the instant case, what is significant to note is that the decree of the trial Court which has been affirmed by the Hon’ble Supreme Court has been given effect to in part. All that remained was only the calculation of mesne profits and recovery of the same by the first respondent plaintiff. In order to contend that the plaintiff is not entitled for mesne profits, the petitioner herein has already filed his statement of objections. Certain proceedings which have taken place under certain special statutes pertaining to Inam Abolition etc., have sought to be relied upon to contend that the plaintiff was not entitled to the decree. If that is so, then the plaintiff would not have been entitled to execute any portion of the decree in which case, the petitioner herein would have to establish that in accordance with law. Since a portion of the decree has already been executed and given effect to, at this stage it is highly belated on the part of the petitioner herein to contend that the decree was obtained by fraud. The trial Court which is now seized of only calculating the mesne profits and ascertain as to whether plaintiff is entitled to the said mesne profits in terms of the decree, cannot at this stage, go beyond what is stated in the decree, merely because the petitioner herein has sought to amend the statement of objection. The effect of any amendment of the statement of objection would be nothing but a fresh proceeding not only with regard to the decree of the trial Court which has already been executed in part, but also with regard to the right, title, interest of the respondent plaintiff vis-à-vis the suit schedule property. That aspect of the matter cannot be gone into by the Executing Court. Therefore, the trial Court was justified in dismissing the application filed for amendment of the written statement. There is no merit in the writ petition. Writ petition is hence dismissed.