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2018 DIGILAW 709 (ORI)

SAKUNTALA MISHRA v. JAGDEEP PRATAP DEO

2018-08-01

S.N.PRASAD

body2018
JUDGMENT : S.N. Prasad, J. - This writ petition is under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this court by assailing the order DATED 30.3.2017 passed by the Civil Judge (Sr. Division) Sundargarh in C.M.A. No.2 of 2017 and Revisional order dated 31.10.2017 passed by the District Judge, Sundargarh in Civil Revision No.2 of 2017 have been assailed. 2. The brief fact of the case is that the opposite party being the plaintiff had filed Title Suit No.3 of 1998 in the court of Civil Judge (Sr. Division), Sundargarh for declaration of right, title and interest over schedule 'A' land and for recovery of possession and permanent injunction. The plaintiff's case in brief is that the suit land appertaining to Hal Khata No.507, Hal Plot No.3/4035, area Ac.0.140 decimal of Mouza Tal Sankara, district Sundargarh was recorded in the name of Birender Sekhar Deo and his brother Bharatendra Sekhar Deo. As per amicable settlement in between the brothers, the suit land fell into the share of Bharatender Sekhar Deo who sold the suit land to the plaintiff for a consideration of Rs. 27,000/- and executed two sale deeds dated 08.10.1990 and 9.10.1990, the possession was delivered to the plaintiff. The defendants having no manner of title, right and interest over the suit land, forcibly constructed a house, hence the plaintiff filed the suit. The petitioners/defendants had appeared before the original trial court, denied the averments made in the plaint and claim their right, title and interest over the suit land by virtue of 'Bramhator Dan', by virtue of which they are in possession of the suit land since the year 1962 which has been confirmed in a proceeding initiated under section 144/145 of Cr.P.C. vide MCC No.254/175 of 1987, that apart the vendor of the plaintiff had no salable interest over the suit land. The original trial court, after examining the witnesses on behalf of the plaintiff vis-?-vis the defendants and after going through the various exhibits marked on behalf of the parties, has decreed the suit vide judgment dated 26.3.2004 on contest by which the right, title and interest of the plaintiff over the suit land has been declared and the defendants are permanently restrained from making any further construction over the suit land and were directed to give possession of the suit land to the plaintiff by demolishing the building over it. Against the aforesaid judgment and decree passed in Title Suit No.3 of 1998, the petitioners/defendants had preferred RFA No.26/32 of 2004 in the court of District Judge, Sundargarh and the 1st Ad hoc Additional District Judge, Sundargarh, vide judgment dated 6.9.2005 dismissed the appeal. The petitioners being the appellants had filed RSA No.551 of 2005 before this court but the same has also been dismissed vide judgment dated 4.3.2016 against which special leave petition was filed before Hon'ble Supreme Court which has also been dismissed. The plaintiff/decree holder had filed execution case being Execution Case No.10 of 2004 for executing the decree passed by the court in Title Suit No.3 of 1998 wherein the petitioners have filed application under section 47 of CPC wherein the identity of the suit land has been disputed, hence contended that the decree is not executable. According to the petitioners/defendants, the suit land vide Hal Khata No.507, Hal Plot No.3/4035, corresponding to Sabik Khata No.308 and Sabik Plot No.888, with the status "Sudargarh Nazul Basti" which is a government land. A ceiling proceeding under the OLR Act was initiated against Birendra Pratap Sekhar Deo and Bhartendrea Sekhar Deo vide Ceiling Case No.23 of 1974 wherein the entire property of the royal family has been referred in the ceiling unit, but Sabik Khata No.308 and Sabik Plot No.888 was not retained by the royal family which will show that Plot No.888 remained as Government land, since the opposite party/plaintiff is claiming his title over the Sabik Plot No.888 by virtue of a registered sale deed, the same cannot be granted to him as his vendor, from whom he derived his title, has no salable right, title and interest over the suit land. A proceeding under section 15(b) of the Orissa Survey and Settlement Act was initiated before the Addl. Commissioner, Settlement and Consolidation, Sambalpur vide R.P No.938 of 2016, on 4.10.2016, the Commissioner had passed an order that the settlement recording of the plot no.3/4035 corresponding to Sabik Plot No.888 in the name of Ruling Chief and his brother in Nazul status appears to be illegal. The same should have been recorded in Anbadi Khata and Nazul Basti, that apart the judgment debtor has also pleaded that the decree obtained by fraud and misrepresentation is a nullity and is un-executable. The same should have been recorded in Anbadi Khata and Nazul Basti, that apart the judgment debtor has also pleaded that the decree obtained by fraud and misrepresentation is a nullity and is un-executable. The executing court vide order dated 30th March, 2017, after hearing the argument from both the sides regarding the petition for stay of Execution Case No.10 of 2004, has rejected the same holding therein that the C.M.A. does not merit consideration and dismissed being devoid of merit, rejected the application filed for stay of the further proceeding in execution case filed under section 47 of the CPC being devoid of merit and posted the execution case on 24.4.2017 for hearing. The petitioners/defendants have preferred revision before the District Judge, Sundar under it revisional jurisdiction but the same has also been dismissed vide order dated 31.10.2007 against which this writ petition has been filed invoking the supervisory jurisdiction of this court conferred Under Article 227 of the Constitution of India. 3. The ground taken by the learned counsel for the petitioners in assailing the aforesaid orders is that the court below has not appreciated the intent of fraud which has been raised by the petitioners before it and since it goes to the root of the title and by suppressing the material facts the decree has been obtained by the plaintiff/defendant, hence the decree will be said to be nullity and as per the settled proportion of law that if there is any fraud, the decree will be said to be nullity in the eye of law, hence not executable. He has referred to various exhibits like that of the deed of release, the certified copy of the order passed by the Collector, District Record Room, Collectorate, Sundargarh in copy application no.463 of 2016, the order passed by the Additional Commissioner, Settlement and Consolidation, Sambalpur, basis upon which it has been submitted that the Plot No.888 does not exist under the Khata No.1 while in the deed of release the reference of Plot No.888, Khata No.1 is there which is because of the reason that the Sabik Plot No.888 is recorded as anabadi as per the nazul khatian, hence since the right title has been decreed in favour of opposite party/plaintiff on the basis of deed of release wherein there is reference of Plot No.888, Khata No.1 but since plot No.888 is not coming under Khata No.1, hence right title over the aforesaid plot cannot be declared in his favour. Their further case is that by virtue of living in possession of the aforesaid suit property since the year 1962, they have made an application for settlement before the Tahasildar, although the same has been rejected but an appeal has been preferred before the Additional Commissioner, Settlement and Consolidation and all these facts have been brought into the notice of executing court by filing application under section 47 of CPC which ought to have been taken into consideration by the executing court before executing the decree passed by the original trial court. Since it has not been done, the infirmity has been committed and further in the impugned orders there is no discussion regarding part of fraud rather only on the basis of decree having been confirmed under the 1st appellate/2nd appellate and under Article 136 of the Constitution of India by the Hon'ble Supreme Court, the executing court, without assigning reason with respect to the commission of fraud, has rejected the application filed under section 47 of CPC as such the same is non-speaking, hence the matter may be remitted before the trial court for adjudication on merit afresh. 4. Per contra Mr. 4. Per contra Mr. Prafulla Kumar Rath, learned counsel appearing for opposite party/plaintiff has seriously objected the grounds, reasons and contention raised by the learned counsel for the petitioners/defendants by submitting that no fraud has been committed by the opposite party/plaintiff by raising the legal issue regarding the scope of section 47 of CPC vis-?-vis Article 227 of the Constitution of India. He submits that the petitioners have contested the suit all along and filed relevant documents including the part of record of rights which has been marked as Exhibits- S & T wherein the suit property in question has been referred as Nazul Sundargarh, hence it cannot be said that the nature of land which now the petitioners are saying that it is nazul, was not within their knowledge. They have filed detail written statement, contested the suit seriously but never raised this point rather it is the admission on their part that Hal Khata No.507 of Mouza - Tal Sankara, stands recorded in the name of Bharatendra Sekhar Deo and Birendra Sekhar Deo but in the said pata plot no.3/4035 measuring area Ac.0.140 decimal the possession of the defendant has been entered in the remarks column as he is in possession of the said land since the year 1962. Their further case, as per the written statement, was that late Bharatendra Sekhar Deo has no salable interest over the suit land because the petitioners/defendants are in possession of the suit land since the year 1962 and their possession over the suit land has also been confirmed in a proceeding bearing no.MCC no.254/175 of 1987 and knowing fully award of the possession of the defendants, the plaintiff, behind their back fauldulently managed to create a deed of sale in respect of the suit land. Their further case is that they are Brahmin by caste and are staying in Sundargarh since the year 1959-60. Their further case is that they are Brahmin by caste and are staying in Sundargarh since the year 1959-60. Late Bir Udit Pratap Sekhar Deo, Ex-ruling chief of Gangpur State called them and for the peace of the departed soul of late Maharaja Raghunath Sekhar Deo, gave the suit land to the them as a 'BRAHAMOTTOR DANA' and also gave delivery of possession of the suit land by the registered sale deeds on 10.6.1962, since then they are residing over the suit property and earning their livelihood by opening a tea stall in the adjoining portion of the suit land by encroaching upon the PWD department land. He submits that it is the admitted case of the petitioners that the land in question is recorded in the name of Bharatendra Sekhar Deo and Birendra Sekhar Deo and basis upon which the decree has been passed by the Trial court declaring right and title over the suit property in favour of the opposite party by taking into consideration the sabik map vide Exhibit-K and the part of the record of right as marked as Exhibits-S & T and when the petitioners lost in the first appellate stage, second appellate stage before this court as also before the Hon'ble Apex Court under its appellate jurisdiction as conferred under Article 136 of the Constitution of India wherein the order has been passed by the Hon'ble Apex Court in SLP (Civil) No.16004 of 2016 on 26.7.2016, it is only after losing up to the level of second appellate court, when he has assailed the order before Hon'ble Apex Court, he has made an application before the Deputy Collector, District Record Room Collectorate, Sundargarh by filing application No.491 of 2016 seeking information regarding nature of the land and thereafter filed application before the concerned Tahasildar for settlement of the land in question and by virtue of order dated 7.3.2017 the same was rejected against which now the appeal is pending before the Additional Commissioner, Consolidation. He submits that in the proceeding before the Tahasildar he has not been impleaded the opposite party/plaintiff and in his absence an application has been filed which is now pending before the appellate authority, which has been done consciously by the petitioners even knowing the fact that in the suit he is party and decree has been passed in his favour. He submits that so far as the claim of the petitioners regarding settlement of the land, the petitioners cannot get any relief by virtue of the provision of schedule 5 appended to the Odisha Government Land Settlement Rules, 1983 wherein as per the provision of section 1(b)(1) the persons including his lawful predecessor in interest was in possession of such land for a period of at least 3 years prior to the said date, i.e. 26.2.2009 and submits a valid application for such settlement within period of 6 months from the date of Odisha Government Land Settlement (Amendment) Rules, 2010 and within such further period as may be appended by a notification published in the official gazette from time to time, but here in this case the application has been filed much after the limitation period, as such his application filed before the competent authority for settlement of the land cannot be said to be entertainable. 5. Heard the learned counsel for the parties and appreciated their rival submissions. This court, before coming to the factual matrix, thinks it proper to consider the scope of section 47 of Code of Civil Procedure. section 47 of CPC confers power upon the executing court to determine a question if arising between the parties in the suit in which the decree was passed or their representative relating to execution or discharge or satisfaction of the decree, shall be determined by the executing court and not by a separate suit. This court has gone across various judgment pronounced by Hon'ble Apex Court dealing with Section 47. The relevant would be to refer the judgment rendered in the case of Brakewel Automotive Components (India) v. P.R. Selvam Alagappan reported in (2017) 5 SCC 371 wherein their lordships of Hon'ble Apex Court, while dealing with the scope of Section 47, have laid down the proposition at paragraphs 21 and 22 as is being referred herein below:- "21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 22. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: "6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7.When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. 7.When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction." It is evident from the observation made by Hon'ble Apex Court in those paragraphs as referred herein above that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. A Court executing a decree cannot go behind the decree until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. At paragraph 23 of the said judgment it has been laid down by taking aid of the judgment passed by Hon'ble Apex Court in the case of Dhurandhar Prasad Singh v. Jai Prakash University and others, reported in (2001) 6 SCC 534 laying therein that exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. This court also intends to go through the scope of Article 227 of the Constitution of India. This court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Hon'ble Apex Court in the case Shalini Shyam Shetty and Another v. Rajendra Shankar Patii report in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of High Courts and by taking aid of the judgment rendered by Hon'ble Full bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. v. Sukumar Mukherjee reported in AIR 1951 Calcutta 193 wherein it has been laid down that Article 227 of the Constitution of India does not vest the high Court with limit less power which may be exercised at the court's discretion to remove the hardship of particular decisions. The power of superintendence it confers is a power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the high court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. The power of superintendence is not to be exercised unless there has been; (a) an unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. Further in the aforesaid judgment Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala v. Phiroz N. Bhatena reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the high court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. Hon'ble Apex Court has made it clear that except to this limited extent the High Court has no jurisdiction to interfere with the finding of facts. Hon'ble Apex Court has made it clear that except to this limited extent the High Court has no jurisdiction to interfere with the finding of facts. Further in the judgment rendered in the case of Laxmikant Revchand Bhojwani v. Pratapsingh Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the high court normal annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the high court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. It has further been laid down regarding the powers to be exercised by the high court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, high court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence high court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. In exercise of its power of superintendence high court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. This court within the framework of the provision of section 47 as also Article 227 of the Constitution of India, is now examining the factual aspect which is involved in the instant writ petition. 6. The factual fact which is not in dispute in the case in hand as per plaint and written statement filed by the petitioners/defendants is that a suit was filed by the opposite party/plaintiff for declaration of right, title, interest over the suit property which was recorded in the name of one Birendra Sekhar Deo and his brother Bharatendra Sekhar Deo in respect of Hal Khata No.507, extending an area of Ac.16.02 decimal. After amicable partition between two brothers, the suit land as situated under Khata No.507, bearing Plot No.3/4035, measuring and area of Ac.0.14 decimal has fallen to the share of Bharatendra Sekhar Deo who had sold the suit property to the plaintiff by executing two registered sale deed on 08.10.1990 and 09.10.1990 for consideration of Rs. 27,000/- and accordingly delivery of possession of the suit land has been given in favour of the opposite party/plaintiff. The case of the petitioners/defendants is that they being Brahmin by caste have been staying at Sundargarh since the year 1959-60. Ex-ruling chief of Gangpur State namely late Bir Udit Pratap Sekhar Deo had given the suit land to them as 'Brahamottor Dana' on the death anniversary of his grandfather, late Maharaja Raghunath Sekhar Deo. The defendants were called for the purpose and were given the delivery of possession of the suit land as per Vedic rites on 10.6.1962 which has been given for the purpose of seeking blessing for the departed soul to rest peacefully in the heavenly abode. They have constructed a kuchha house over the suit land in the year 1962, later on opened a tea stall on the Nayanjori land between the suit land and PWD road. They said to have been paying fine for such encroachment of the said government land. They have constructed a kuchha house over the suit land in the year 1962, later on opened a tea stall on the Nayanjori land between the suit land and PWD road. They said to have been paying fine for such encroachment of the said government land. The said Bir Udit Pratp Sekhar Deo had promised to execute a document in support of the said 'Brahamottor Dana' in respect of the suit land in favour of the defendants but due to his prolong illness and as per his treatment he remained abroad from Sundargard, it did not ultimately materialized till his death in the year 1967. The defendants assert to be in possession of the suit land since 10.6.1962, the date when they entered into possession of the suit land being duly delivered by Bir Udit Pratap Sekhar Deo by 'Brahamottor Dana' accordingly in the record of hal settlement operation in the remarks column, defendants position has been noted, ROR being published on 15.9.1978, in that very year a proceeding under section 145 of the code of civil procedure commenced in between the parties. In the said proceeding possession of the defendants has been declared. The defendants' further claim to have been leasing out portion of the suit land to different persons in the year 1986 to meet the financial difficulties. The decree has been passed in favour of the opposite party/plaintiff declaring right, title, interest over the suit property which has been assailed by the petitioners/defendants before the first appellate court but not succeeded there, hence approached to the second appellate court, i.e. before this court, but not succeeded, thereafter went to Hon'ble Supreme Court under its appellate jurisdiction but lost there also by the order passed on 26.7.2016 in SLP (civil) No.16004 of 2016. The petitioners although filed an execution case in the year 2004 being Execution Case No.10 of 2004 but the same has not proceeded due to pendency of the appeal in different stages and after the order passed by the Hon'ble Supreme Court on 26.7.2016 an application was filed in the month of February 2017 invoking the jurisdiction conferred under section 47 of the code of civil procedure on the ground that the very reference in the deed of release about Plot No.888, Khata No.1, Sundargarh Nazul which was made on 23rd October, 1972 by one Sri Birendrasekhar Deo and Sri Martendrasekhar Deo but on verification of Nazul Khatian of Nazul Basti, Sundargarh it is seen that Plot No.888 does not exists under Khata No.1 and it has also been communicated that the aforesaid land in question is recorded as Anabadi which is a Government land and since the land in question is a Government land, the deed of release will be said to be a fraudulent document and the said deed of release is the basis of claiming title over the suit land by the opposite party/plaintiff, hence the entire decree since is based upon a fraudulent document, will be said to be nullity in the eye of law and according to the learned counsel for the petitioners, it is settled position of law that if a decree has been obtained by commission of fraud, the same will be said to be nullity in the eye of law and when this point has been raised by him before the executing court under section 47 of CPC that ought to have been taken into consideration but not taking it into consideration will be said to be miscarriage of justice, as such the same is to be set aside by this court in exercise of power conferred under Article 227 of the Constitution of India in exercise of revisonal/supervisory jurisdiction. While on the other hand, learned counsel for the opposite party/defendant seriously refuted the aforesaid argument by submitted that the ROR has been produced by the petitioners/defendants marked as Exhibits- S, T and K wherein there is reference of Nazul Sundargarh, hence it cannot be said that the petitioners were having no knowledge about the same, rather their admitted case, as per the written statement, was that the suit property under Khata No.507 stands recorded in the name of Bharatendra Sekhar Deo and Birendra Sekhar Deo and the same has been given to them as 'Brahamottor Dana' and since then from the year 1962 they are in possession of the suit property, as such now they cannot take altogether different point after losing in all the stages in the suit/appeal. This court, after appreciating the rival contention, taking into consideration the scope of section 47 vis-?-vis Article 227 of the Constitution of India is of the view that the petitioners are contesting the suit right from the year 1998 and taken the specific plea regarding the suit property which according to them is recorded in the name of late Bir Udit Pratap Sekhar Deo, who has given them the suit land as 'Brahamottor Dana' and since the year 1962, they are in possession of the suit land and on the basis of the aforesaid fact they are claiming their title over the suit property and this court, after taking into consideration this aspect of the matter, has passed judgment declaring right, title interest over the suit land in favour of the opposite party - plaintiff. The petitioners have lost up to the level of Hon'ble Supreme Court and it is only thereafter they have filed an application before the Deputy Collector, Record Room, Sundargarh and got information that Plot No.888, Khata No.1 situated in Sundargarh Nazul is Anabadi, a government land, hence the vendor having no title over the suit property has got no right to transfer it in favour of the opposite party/plaintiff and to that effect they have filed an application under section 47 of CPC for stay of the execution proceeding as also to examine that aspect of the matter but the executing court has refused to interfere by holding that the application for stay is devoid of merit, the same has been confirmed under the revisional jurisdiction by the learned District Judge, Sundargarh which is before this court under Article 227 of the Constitution of India. As per the settled position of law regarding the jurisdiction of high court under Article 227 of the Constitution of India as referred herein above and taking into consideration the scope of section 47 of CPC, there is no denial about the settled position of law that if a party has contested the suit at length, filed written statement, not questioned the nature of land and after losing it up to the level of Hon'ble Supreme Court, he cannot be allowed to turn around and put the things in the position from where the trial has began. 7. 7. Learned counsel for the petitioners has emphatically argued that there is intent of fraud and it is settled position of law that fraud vitiates everything and since the judgment has been passed basing upon a fraudulent document, the judgment will be said to be nullity in the eye of law, hence the same ought to have been considered by the executing court but now the question is that it is not the case of the petitioners that they were not knowing about the nature of land, rather it is admitted case that they were knowing about the nature of land and also claiming their title over the suit property by virtue of the said deed of release which was recorded in the name of the royal family from where the deed of release has came into existence but after losing, they, on the basis of an information received by them from Deputy Collector, Record Room, Sundargarh, they are questioning their own admission made before the trial court in their written statement, according to my considered view, the same cannot be said to be permissible. 8. Further the petitioners want to take aid of one document, basis upon which, they are now claiming for settlement of the suit property in their favour and to that effect they have made application before the Tahasildar but the same has also been rejected, however it has been submitted on behalf of the petitioners that appeal is pending before the Additional Commissioner, Consolidation but very surprisingly the petitioners have not been impleaded opposite party - defendant in that proceeding before the revenue authority and now want to take aid of that document against opposite party - defendant which also cannot be said to be permissible in view of settled position of law that if in a proceeding when the opposite party has not been arrayed as party, any order passed in the proceeding, cannot be taken against him. 9. There is no dispute and denial about the fact that fraud vitiates everything, but the question is that who has committed fraud. 9. There is no dispute and denial about the fact that fraud vitiates everything, but the question is that who has committed fraud. It is the petitioners or the opposite party because both parties have given their trust without questioning the title of the ruling chief over the suit property and after losing it now the question of fraud is being raised by the petitioners which is nothing but by way of a counter-blast since they have become unsuccessful in getting title over the property in question. Further even accepting the argument of the petitioners that there is fraud but they have failed to point out that who has committed fraud whether the opposite party - or his vendor or the ruling chief and it is settled that the definition of fraud as per the provision of section 17 of the Contract Act, it has very much defined therein that if there is active concealment of the fact it will be said to be fraud, but the petitioners have failed to bring anything on record that there is active concealment of any material fact by the opposite party - defendant, rather their case all along is that they have purchased the property from the vendor and vendor has got his right by virtue of the deed of release and there there is fraud. But the petitioners were very much conscious about the said deed of release but not questioned even though claiming to be in possession since the year 1962 by virtue of the very same document. If according to the petitioners there was any intent of fraud it ought to have been brought on record but they have chosen not to do so, reason is very much clear that they were also claiming right over the suit property by declaration of right and title in their favour and after losing, they are raising the issue of fraud alleged to have committed by the opposite party/defendant. 10. 10. The fact as has been raised by the petitioner in the application filed under section 47 of the Code of Civil Procedure regarding fraud, the same is mixed question of fact and law and it is settled that for getting a finding on mixed question of fact and law, the same needs to be adjudicated by leading evidence in that regard but no such plea has ever been taken by the petitioners-defendants in course of trial as also before the appellate courts and when the matter has set at rest right up to the level of Hon'ble Supreme Court, a new plea of mixed question of fact and law has been raised before the executing court in order for a de novo trial, which according to my considered view is not the scope of the provision of section 47 and taking into consideration the aforesaid aspect of the matter the executing court has rejected the application on the ground that the issue has been set at rest and this point has never been raised either before the trial court or before the appellate courts, which cannot be said to be an improper order, rather it will be said to be an order strictly in terms of the provision as contained in section 47 of the Code of Civil Procedure as per the settled position of law as discussed herein above. This court further reiterates that since there is no infirmity in the decision taken by the executing court in an application filed under section 47 of CPC, hence the same is not to be looked into by this court sitting under Article 227 of the Constitution of India as because the aforesaid order is not coming under the fold of scrutiny as per the settled position of law as discussed herein above to be dealt with under the provision of Article 227 of the Constitution of India. It is as has been settled the scope of section 47 of CPC is concerned, as has been laid down by Hon'ble Apex Court in the judgment rendered in the case of Brakewel Automotive (supra) that a microscopic view is to be given by the high court in entertaining application under section 47 of the CPC, meaning thereby the executing court has not been conferred with the power to initiate a fresh trial rather if there is any miscarriage of justice then only that power can be exercised, but according to my considered view and as per the discussion made herein above at length, it cannot be said that there is any miscarriage of justice meted out to the petitioners/defendants. 11. In view of the discussion made herein above and taking into consideration the scope of section 47 of CPC as also Article 227 of the Constitution of India, according to my considered view the orders passed by the executing court cannot be said to be suffer from jurisdictional error or miscarriage of justice, as such needs no interference by this court under its supervisory jurisdiction. 12. In view thereof the CMP fails and it is dismissed.