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2023 DIGILAW 981 (AP)

Mundra Gopala Krishna v. Margadarsi Chit Fund Ltd

2023-07-04

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT 1. Heard Sri P.Rajesh Babu, learned counsel for the revisionpetitioner and Sri P. Durga Prasad, learned counsel for the respondents. 2. Learned counsel for the Revision-Petitioner would submit that the revision-petition is filed against an Order, dtd. 5/2/2016 on the file of II Additional Senior Civil Judge, Kakinada challenging in E.A.No.113 of 2015 in O.S.No.317 of 2009 whereunder the learned Trial Judge, upon considering the evidence on record, holding that the contention of the revision-petitioner that his signature on the Chit Agreement was forged cannot be considered under Sec. 47 CPC and the learned Trial Judge dismissed the application. 3. Learned counsel for the respondent No.1 would submit that no Revision is maintainable against an order under Sec. 47 of CPC as it is an appealable order. He would further submit that an application under Sec. 47 of CPC is not maintainable on the ground that the signature of the defendant was forged on the Chit Agreement and question that can be challenged in execution proceedings is only on the ground that the Court entirely lacking inherent jurisdiction. 4. In the light of the above context of the revision petitioner and the respondents, the point that arises for consideration is: - "Whether the Execution Court committed any irregularity in the Order, dtd. 5/2/2016 passed in E.A.No.113 of 2015 in E.P.No.65 of 2014 in O.S.No.317 of 2009 on the file of II Additional Senior Civil Judge's Court, Kakinada?" 5. P O I N T: It is an admitted fact that the revision-petitioner filed an application under Sec. 47 CPC before the Execution Court on the ground that his signature on the Chit Agreement was forged and decree was obtained by fraud. 6. The Hon'ble Supreme Court in Hira Lal Patni Vs. P O I N T: It is an admitted fact that the revision-petitioner filed an application under Sec. 47 CPC before the Execution Court on the ground that his signature on the Chit Agreement was forged and decree was obtained by fraud. 6. The Hon'ble Supreme Court in Hira Lal Patni Vs. Sri Kali Nath reported in 1962 0 AIR (SC) 199, wherein the Hon'ble Apex Court held as under: "The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit in over the parties to it. But in the instant case there was no such inherent lack of jurisdiction." 7. The revision-petitioner/defendant filed application under Sec. 47 CPC contending that the decree was fraudulently obtained basing on a Chit Agreement, wherein, his signature was forged and therefore, the decree is a nullity. 8. Admittedly, it is not the contention of the revision-petitioner that the Court which passed decree, was lacking in jurisdiction in the sense that it could not have seized the case, because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit in over the parties to it. 9. Therefore, when there was no such inherent lack of jurisdiction, application under Sec. 47 CPC is not maintainable. Only a decree which is a nullity can be the subject matter of objection under Sec. 47 CPC. The Executing Court shall not permit a new plea not raised in the suit, when it requires adjudication. The dispute regarding signature of the revisionpetitioner/defendant has to be determined in this suit and not in proceedings of execution. In that view of the matter the revision is devoid on merits. 10. Accordingly, the Civil Revision Petition is Dismissed. The Executing Court shall not permit a new plea not raised in the suit, when it requires adjudication. The dispute regarding signature of the revisionpetitioner/defendant has to be determined in this suit and not in proceedings of execution. In that view of the matter the revision is devoid on merits. 10. Accordingly, the Civil Revision Petition is Dismissed. There shall be no order as to costs. 11. As a sequel, miscellaneous applications pending, if any, shall stand closed.