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2017 DIGILAW 2868 (ALL)

Sadanand v. Ram Rati (Since Deceased)

2017-12-07

ASHWANI KUMAR MISHRA

body2017
ORDER : 1. This petition is by the three sons of late Jayanti Prasad, Son of Kaushalya Devi, challenging the order passed by the executing court dated 10.3.2014, as well as the order dated 24.2.2015 affirming it in revision. A further order directing the process to be initiated in execution, dated 24.2.2015, is also assailed. Prayer has been made to allow the application filed under Section 47 of the Code of Civil Procedure in Misc. Case No.114 of 2009, arising out of Execution Case No.7 of 2009. 2. Facts, which are in issue, are that plaintiff Ram Rati instituted a suit for eviction of defendants, including Jayanti Prasad and later his sons, with the allegation that property in question i.e. House No.S-30/181, Shivpur, Varanasi, belongs to him, and that defendants were continuing in possession over part of the house as licensee. It is claimed that licence has been terminated, and the defendants are liable to be evicted. Notices were issued in the suit. Sahabdin, one of the sons of Jayanti Prasad, appeared in the suit, but did not file any written statement. Suit was ultimately decreed by the Small Causes Courts on 7.1.2008, after noticing the fact that order to proceed ex-parte as against the defendants had attained finality. At this stage, it would be appropriate to notice some of the averments made in the plaint. It was admitted to the plaintiff that property was purchased exclusively in the name of Smt. Kaushalya Devi, who was earlier married to one Bal Karan. Sale deed of the property in question, executed in favour of Kaushalya Devi on 22.2.1954 was brought on record, in which Kaushalya Devi was identified as wife of Ram Rati. Kaushalya Devi died sometime in 1979. It appears that name of Ram Rati was thereafter mutated in revenue records, and he executed three wills on 9.5.1988, 5.12.1989 and 5.12.1993. In the second will, he also created right over part of the property in defendant Jayanti Prasad, which was followed with a subsequent will, in which no rights were given to Jayanti Prasad. Ram Rati, however, claimed that it was he, who had purchased the property in the name of Kaushalya Devi, and this fact was since known to the defendant, therefore, it was never objected. Ram Rati, however, claimed that it was he, who had purchased the property in the name of Kaushalya Devi, and this fact was since known to the defendant, therefore, it was never objected. It is, however, not in issue that Kaushalya Devi was the recorded owner of the property, and no declaration was granted prior to filing of original suit no.126 of 1993, in favour of Ram Rati, to the effect that he was the owner in possession of the property, or that the house property in question was his Benami property, as was alleged. These issues, however, have not been examined either by the trial court or by the appellate court, particularly as there was no contest on merits on these aspects. Against the ex-parte decree, an appeal was filed in the name of Sahabdin, Sadanand, Mahanand and Shyam Kumar, sons of Jayanti Prasad, and memo has been annexed at page 62 of this petition. The memo of appeal apparently has been signed by all four brothers. The memo of appeal bears 24.1.2008 as the date of its filing. The appeal was registered as Civil Appeal No.15 of 2008, and various grounds were taken to challenge the order. It would be appropriate to notice that at the time when appeal was preferred, Ram Rati had died, and Smt. Sudama Devi and Krishna Kumar Kashyap, who are opposite party nos.1/1 and 1/2 in this petition, contested the appeal, based upon the will of Ram Rati executed in the year 1993. The appellate court returned a finding that on the basis of will, which is duly exhibited, the respondents in appeal are the owner of the property, and as an application under Order 9 Rule 7, filed by the defendant, had already been rejected, therefore, there is no infirmity in the decree passed by the court below. The appeal accordingly was rejected on 20.8.2008. While deciding the appeal, however, the issue as to in the absence of a declaration of ownership granted in favour of Ram Rati, whether the property could be presumed to be a Benami property of Ram Rati was neither considered nor answered. The appeal accordingly was rejected on 20.8.2008. While deciding the appeal, however, the issue as to in the absence of a declaration of ownership granted in favour of Ram Rati, whether the property could be presumed to be a Benami property of Ram Rati was neither considered nor answered. Records reveal that thereafter an application under Section 151 CPC was filed before the appellate authority stating that out of sons of Jayanti Prasad, Sahabdin had colluded with opposite party nos.1/1 and 1/2, and had fabricated the signatures of present petitioners upon the memo of appeal, and that petitioners had no knowledge of filing of the suit; passing of decree therein; and filing of appeal or its dismissal. This application was rejected on 24.2.2015. An objection under Section 47 CPC was also filed taking a similar stand, contending that in fact notices had not been served to all the defendants in suit, inasmuch as though a direction was issued to effect service by publication, but steps were not taken. It was also stated that filing of the appeal by other brothers of Sahabdin was a fraud played upon the court by Sahabdin, who had colluded with heirs of original plaintiffs. It was also contended that decree was otherwise bad, inasmuch as once it was admitted that Kaushalya Devi was the owner of property, the objectors being her sons would be the natural heirs under the provisions of Hindu Succession Act, 1956, and in absence of any declaration granted by competent civil court, that Ram Rati was the owner of the property, or that property was his Benami, the courts below could not have treated the status of defendants to be that of a licensee. The objection under Section 47 was opposed by the heirs of plaintiff, and the same has ultimately been rejected by the trial court. This order has been affirmed in revision, which are under challenge in this petition. 3. The orders are assailed primarily on the ground that plea of fraud set up by the applicant has not been examined by the courts below, and that there is a failure on part of the revisional court to exercise jurisdiction vested in him by law. All such facts have otherwise not been examined with reference to the specific plea raised under Section 47. 4. All such facts have otherwise not been examined with reference to the specific plea raised under Section 47. 4. The petition is opposed by contending that plea of fraud is not substantiated, and is an afterthought. Once the defendants had contested and had lost till the appellate stage, all such pleas are now being raised. Learned counsels have relied upon various judgment, which shall be dealt with hereinafter. 5. I have heard Sri Raj Kumar, learned counsel for the petitioners, and Sri O.P. Pandey learned counsel for the respondents, and have perused the materials brought on records. 6. Facts, which have already been noticed above, need not be referred again. It would to appropriate to take note of the discussions and findings returned by the executing court while rejecting the objection under Section 47. 6. Facts, which have already been noticed above, need not be referred again. It would to appropriate to take note of the discussions and findings returned by the executing court while rejecting the objection under Section 47. The entire discussion and finding of the executing court is virtually in one paragraph, and the same is, therefore, extracted hereinafter:- **eSus mHk; i{k ds fo}ku vf/koDrk dks lquk rFkk i=koyh dk voyksdu fd;kA izkFkhZx.k@izfroknhx.k dh vksj ls fof/k O;oLFkk gjns'k vksfjl izkW0 fyfe0 cuke esllZ gsMs ,.M dEiuh&2007¼2½ ,0vkj0lh0 ist&584 izLrqr fd;k x;k gS fn[krk gks fd okn fdlh dkj.k ls ckf/kr gSA nwljh fof/k O;oLFkk vk'kqrks"k cuke jslqn~nhu 1994 ,0vkj0lh0 ¼2½ ist&79 izLrqr dh x;h gS ftles ekuuh; mPp U;k;ky; }kjk ;g vo/kkfjr fd;k x;k gS fd vkns'k 9 fu;e 6¼1½¼,½ es tks ;g fy[kk x;k gS fd okn ,di{kh; :i ls lquk tk;sxk] mldk vFkZ ;g ugh gksxk fd ,di{kh; okn dh fofHkUu Lrjksa ij U;k;ky; lquokbZ djsxh] u ,di{kh; fMxzh ikfjr djsxhA ,d vU; fof/k O;oLFkk tykxknqxqYyk bZ'oj jko cuke Mh0,l0 jko ,0vkbZ0vkj0 2011 vkU/kzizns'k ist&78 izLrqr fd;k x;k gS ftlesa ekuuh; vkU/kzizns'k mPp U;k;ky; }kjk ;g vo/kkfjr fd;k x;k gS fd tgkW ij fo'ks"kK lk{; dh vko';drk gks vkSj ,d i{k vfHkys[k es fof'k"V :i ls gLrk{kj vFkok vaxqy fpUg ls bUdkj djsa rks mDr vfHkys[k dks gLrys[k fo'ks"kK ds ;gkW Hksts tkus dk vkns'k fn;k tkuk pkfg;sA mijksDr rhuksa fof/k O;oLFkk bl ekeys es fdlh izdkj ls ykxw ugh gksrk gS D;ksafd izkFkhZ ds }kjk izkFkZuk i= vUrxZr /kkjk 47 lh0ih0lh0 ds rgr fn;k x;k gS vkSj mijksDr lHkh fof/k O;oLFkk ewy okn ds lEcU/k es tks vfHkdFku izkFkhZ }kjk vius izkFkZuk i= es fd;k x;k gS] mlds lEcU/k es fn;k x;k gS ftudk dksbZ vkSfPkR; ugh gSA foi{kh dh vkifRr ds voyksdu ls Li"V gksrk gS fd lHkh dk;Zokgh ewy okn o vihy ds lEcU/k es fu;ekuqlkj gqvk gS vkSj fofHkUu Lrjksa ij U;k;ky; }kjk fUkLrkfjr gqvk gS ftles nksuksa i{k mifLFkr gq;s gS ijUrq vc vkifRrdrkZ@izkFkhZx.k }kjk ewy okn ls vihyh; U;k;ky; rd dh lHkh dk;Zokgh dks >wBk djkj fn;k tk jgk gS vkSj mlds fo:) vuxZy dFku fd;s x;s gSA izkFkhZx.k dk izkFkZuk i= 4x fdlh Hkh vk/kkj ij iks"k.kh; izrhr ugh gksrk gS ,slk izrhr gksrk gS fd izkFkhZx.k }kjk ek= csn[kyh dh dk;Zokgh dks jkdsus ds fy;s o U;k;ky; dk le; vuko';d :i ls cckZn djus dk iz;kl ek= gS rnuqlkj izkFkZuk i= 4x vUrxZr /kkjk 47 tk0 nhokuh fujLr fd;s tkus ;ksX; gSA** 7. This order has been challenged in revision. After noticing the order of the executing court, the revisional court has observed as under while rejecting the revision:- “Learned counsel for revisionist has submitted that the learned lower court decided their application under Section 47 CPC in cursory manner without calling for original record of the case and as the judgment had been obtained by playing fraud on court by the plaintiff in collusion with the defendant no.1, the decree was a nullity and therefore, was inexecutable. The issue as to whether the plaintiff had obtained judgment in original suit by playing fraud on court in collusion with defendant no.1 cannot be addressed under section 47 CPC as it requires taking of evidence and that can be done only in a fresh suit. The executing court must execute the decree as it stands and it cannot go into the correctness or validity of the decree except when the decree is a nullity. If the decree is of a court with jurisdiction, the executing court is bound to execute the decree as it stands. It is only where a decree is passed by Court which lacks inherent jurisdiction to pass the decree that the objection to the validity of the decree may be raised in a proceeding in execution, if such objection appears on the face of the record. ( AIR 1970 SC 1475 .) The learned lower court had jurisdiction to entertain and adjudicate upon the suit and the executing court cannot go beyond the decree. There is no prima facie evidence on record to substantiate claim made by the revisionist that the ex parte judgment was obtained by playing fraud on court by the plaintiff in collusion with defendant no.1 after forgoing signatures of defendant nos.2 to 4 in appeal against ex parte decree passed in the original suit. Hence the order passed by learned lower court needs no interference.” 8. From the orders passed by the executing court, as affirmed in revision, it would be seen that none of the courts have actually examined the plea of fraud set up by the petitioners in objection under Section 47. This Court, at this stage, would like to take note of the fact that undisputedly property belonged to Kaushalya Devi, and in ordinary course of things, the defendants being her grandsons would have inherited the property through their father Jayanti Prasad. This Court, at this stage, would like to take note of the fact that undisputedly property belonged to Kaushalya Devi, and in ordinary course of things, the defendants being her grandsons would have inherited the property through their father Jayanti Prasad. Ram Rati admittedly had not sought any declaration that property in question was his Benami property. Undisputedly, Jayanti Prasad, father of the petitioner, was the son of Kaushalya Devi, and there is no dispute on that count. Plea taken by Ram Rati that Jayanti Prasad was born out of first wedlock of Kaushalya Devi with Bal Karan, is not an aspect on which any specific finding has been returned, and therefore, no comments in that regard are required. There was no declaration granted by the civil court to the effect that the property purchased by Kaushalya Devi was a Benami property belonging to Ram Rati. Mere fact that mutation orders had been passed in favour of Ram Rati would not be conclusive proof in law of Ram Rati being the owner of the property. These were important aspects, which have not been gone into at any stage of the proceedings, in view of the fact that the suit proceeded ex-parte, and even in appeal, there is no consideration on these aspects. It is in this context that plea of the petitioners that they had no knowledge of suit nor they were served with notices in suit, had to be examined. A specific case was taken that though service was to be effected by publication, but steps were not taken. There is no consideration or finding in that regard. The plea that Sahabdin had colluded with heirs of plaintiff for the reason that he was assured a part of property, and that it was only when the heirs refused to honour this assurance that correct facts were disclosed to other brothers was required to have been tested on merits. The order passed by the executing court is apparently cryptic on the crucial aspects. The executing court has presumed that objections are being raised as an afterthought and after the objectors had lost in appeal. The plea that they had not signed the memo of appeal or that they were not heard at any stage has also not been examined. No evidence in that regard has been entertained or discussed. The executing court has presumed that objections are being raised as an afterthought and after the objectors had lost in appeal. The plea that they had not signed the memo of appeal or that they were not heard at any stage has also not been examined. No evidence in that regard has been entertained or discussed. The affidavits submitted by the parties were the only basis made for adjudication on these aspects. Revisional court, moreover, has only observed that such issues cannot be gone into under Section 47, and a suit alone was required to have been filed for a declaration that decree had been obtained by playing fraud. This Court in Kishan Lal Barwa Vs. Sharda Saharan and another, reported in 2015 (2) ADJ 297 , had an occasion to examine the scope of exercise of jurisdiction under Section 47, where a plea of fraud had been set up by the objector. Following paragraphs of the judgment are relevant and are reproduced hereinafter:- “19. It is well settled that once the plea of fraud has been setup by the defendant-petitioner before the executing court, and credible evidence in support of such plea was also placed, it was incumbent upon the executing court to have examined the issue of fraud, on merits, and such plea ought not to have been rejected merely on the ground that a decree in favour of the plaintiff-respondent had been passed, and the executing court, as such, had no occasion to examine the plea of fraud. It is also well settled that fraud vitiates all solemn acts. Though a plea of fraud was taken up before the civil court, but such plea was not adjudicated, which is clarified in the judgment of the civil court itself. However, if a credible material has come into existence, which if is found proved vitiates the decree itself, it is the duty of the executing court to consider such plea on merits. It was open for the executing court to have examined the report of the Directorate, Fingerprint Experts, in accordance with law, and for such purpose an opportunity was liable to have been allowed to the plaintiff-respondent. The executing court could have adjudicated as to whether the plea of fraud was made out on facts or not? It was open for the executing court to have examined the report of the Directorate, Fingerprint Experts, in accordance with law, and for such purpose an opportunity was liable to have been allowed to the plaintiff-respondent. The executing court could have adjudicated as to whether the plea of fraud was made out on facts or not? but it was not open for the executing court to brush aside the objection itself and thereby refused to go into such issue itself. 20. The judgment of the Apex Court relied upon by Sri Pankaj Agrawal, learned counsel for the respondents, in Atma Ram Builders Pvt. Ltd. v. A.K. Tuli and others: (2011) 6 SCC 385 and Smt. Kastoori Devi & another v. Harbansh Singh: AIR 2000 Punjab and Haryana 271, are not relevant for the present purposes, inasmuch as no plea of fraud or interpretation of section 44 of the Evidence Act was involved therein. It was observed, in the facts of the case where no issue of fraud was involved, that once the suit had been decreed, thereafter unnecessary objections should not be entertained and the benefit of decree must be ensued at the earliest. The proposition, aforesaid, is too well settled but has no application in the facts of the present case, where a plea of fraud has been taken and substantiated with prima facie evidence. 21. The Apex Court also had an occasion to consider the aspect of playing of fraud upon the court in Hamza Haji v. State of Kerala and another: (2006) 7 SCC 416. Para 10 to 24 of the said judgment is reproduced:- "10. It is true, as observed by De Grey, C.J., in Rex Vs. Duchess of Kingston [2 Smith L.C. 687] that: "'Fraud' is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal". 11. In Kerr on Fraud and Mistake, it is stated that: "in applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud." 12. It is also clear as indicated in Kinch Vs. It is also clear as indicated in Kinch Vs. Walcott [1929 APPEAL CASES 482] that it would be in the power of a party to a decree vitiated by fraud to apply directly to the Court which pronounced it to vacate it. According to Kerr: "In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient..... but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury." (See the Seventh Edition, Pages 416-417) 13. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that, "Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments". In paragraph 269, it is further stated, "Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action. It is also stated: "Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair". 14. In American Jurisprudence, 2nd Edition, Volume 46, paragraph 825, it is stated, "Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied." 15. The law in India is not different. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied." 15. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe Vs. Kanade [ILR 6 BOMBAY 148], it was held that: "It is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud;" 16. In Lakshmi Charan Saha Vs. Nur Ali [ILR 38 Calcutta 936], it was held that: "the jurisdiction of the Court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree." 17. In Manindra Nath Mittra Vs. Hari Mondal [24 Calcutta Weekly Notes 133], the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said: "with respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words where the Court has been intentionally misled by the fraud of a party, and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence". 18. The position was reiterated by the same High Court in Esmile-Ud-Din Biswas and Anr. Vs. Shajoran Nessa Bewa & Ors. [132 INDIAN CASES 897]. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence". 18. The position was reiterated by the same High Court in Esmile-Ud-Din Biswas and Anr. Vs. Shajoran Nessa Bewa & Ors. [132 INDIAN CASES 897]. It was held that: "It must be shown that fraud was practised in relation to the proceedings in the Court and the decree must be shown to have been procured by practising fraud of some sort upon the Court." 19. In Nemchand Tantia Vs. Kishinchand Chellaram (India) Ltd. [63 Calcutta Weekly Notes 740], it was held that: "a decree can be re-opened by a new action when the court passing it had been misled by fraud, but it cannot be re-opened when the Court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled." 20. It is not necessary to multiply authorities on this question since the matter has come up for consideration before this Court on earlier occasions. In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. [(1993) Supp. 3 SCR 422], this Court stated that: "it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree ---by the first court or by the highest court ---has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. Their Lordships stated: "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property -grabbers, tax -evaders, Bank -loan -dodgers, and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property -grabbers, tax -evaders, Bank -loan -dodgers, and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation". 21. In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Others [(2003) Supp. 3 SCR 352], this Court after quoting the relevant passage from Lazarus Estates Ltd. Vs. Beasley [(1956) 1 All ER 341] and after referring to S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. (supra) reiterated that fraud avoids all judicial acts. In State of A.P. & Anr. Vs. T. Suryachandra Rao [ (2005) 6 SCC 149 ], this Court after referring to the earlier decisions held that suppression of a material document could also amount to a fraud on the Court. It also quoted the observations of Lord Denning in Lazarus Estates Ltd. Vs. Beasley (supra) that: "No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." 22. According to Story's Equity Jurisprudence, 14th Edn., Volume 1, paragraph 263: "Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another." 23. In Patch Vs. Ward [1867 (3) L.R. Chancery Appeals 203], Sir John Rolt, L.J. held that: "Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance." 24. This Court in Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors. [ 2005 (7) SCC 605 ] held that: "Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud." ” 9. This Court in Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors. [ 2005 (7) SCC 605 ] held that: "Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud." ” 9. Learned counsel for the respondents, on the other hand, has relied upon a decision of the Apex Court in Dhurandhar Prasad Singh Vs. Jai Prakash University and others, reported in JT 2001 (5) SC 578, wherein following observations are made in paragraph 23:- “23. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it . Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.” Reliance is also placed upon a judgment of the Apex Court in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman, reported in AIR 1970 SC 1475 . 10. The law is settled that executing court cannot go behind the decree. For any error of law or fact, which is alleged to have crept in the decree, the proper course available would be to challenge it by way of appeal. Rajabhai Abdul Rehman, reported in AIR 1970 SC 1475 . 10. The law is settled that executing court cannot go behind the decree. For any error of law or fact, which is alleged to have crept in the decree, the proper course available would be to challenge it by way of appeal. Law in that regard is well too established to be questioned. However, fraud in obtaining of decree is an aspect, which can be gone into at any stage of the proceedings, in view of the settled law that fraud vitiates all. Basic underlying principle for such a view is that fraud and justice do not dwell together. In case it could be shown that decree is obtained by playing fraud, then such questions are open to be raised in execution proceedings as well. In the facts of the present case, it is otherwise found that no adjudication is made by the civil court, on merits, and sons and grandsons are being dispossessed from the property, undisputedly belonging to the mother, even without a declaration that property was a Benami of Ram Rati. For the reasons aforesaid, orders under challenge cannot be sustained, and are quashed. 11. This petition stands allowed. Objection under Section 47 of the Code of Civil Procedure stands restored to the records of the executing court for being dealt with, in accordance with law, keeping in view the observations made above. As the proceedings have remained since long, it would be appropriate to observe that the executing court shall fix weekly dates in the matter, and all endeavours would be made to conclude the proceedings, without granting unnecessary adjournment to either of the parties.