Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1949 (KER)

Ahamed Basher v. Sherif Babu S/o Rasheed

2025-07-11

M.A.ABDUL HAKHIM

body2025
JUDGMENT : M.A. ABDUL HAKHIM, J. 1. The appellant is the first defendant in the suit. The suit was originally filed by one Shoukathumma @ Shoukath Beevi against two defendants to set aside the decree obtained by the defendants against the plaintiff in A.S.No.92/2002 of the District Court, Kollam, to the extent to which it relates to the plaintiff as the same was obtained by the defendants fraudulently and collusively, to recover possession of plaint B schedule property from the first defendant, to put up boundary of A & B schedule properties together or separately and for consequential injunction. 2. The plaint A schedule property is having an extent of 2.35 Ares and the buildings and improvements therein. Plaint B schedule property is having an extent of 1.08 Ares forming the north-western portion of the plaint A schedule property and the building and improvements therein. 3. The plaintiff filed the suit claiming that the plaintiff obtained the plaint A schedule property and the building therein as per Sale Deed No.2142/1975 for valid consideration that the plaint schedule property is a Revenue puramboke and hence the plaintiff did not get Patta. The plaint A schedule property exclusively belonged to the plaintiff since 18.08.1975. The first defendant filed O.S.No.102/1997 before the Munsiff Court, Kollam, with respect to plaint B schedule property against the plaintiff and six others. The plaintiff did not get any summons or notice in the said suit and hence the plaintiff could not appear and contest the said suit. Though the plaintiff, who was impleaded as the 7 th defendant in the said suit was set ex parte, the said suit was dismissed by the Munsiff Court. The first defendant filed A.S.No.92/2002 before the First Appellate Court. The plaintiff received notice in the Appeal. The notice in the Appeal was entrusted to the second defendant, who agreed to engage an Advocate for the plaintiff. The second defendant obtained amounts from the plaintiff for conducting the case and the plaintiff was made to believe that the case had been properly prosecuted. The plaintiff is an illiterate and hence all the papers received from the court were entrusted to the second defendant. The first defendant and his agents, along with the Amin from the Additional Munsiff Court, Kollam evicted the plaintiff from plaint B schedule property. The plaintiff is an illiterate and hence all the papers received from the court were entrusted to the second defendant. The first defendant and his agents, along with the Amin from the Additional Munsiff Court, Kollam evicted the plaintiff from plaint B schedule property. The defendants entered into a conspiracy and obtained the decree in A.S.No.92/2002 fraudulently and hence the decree is liable to be set aside. 4. On the death of the original plaintiff, the additional plaintiffs 3 to 6 were impleaded as her legal heirs. Since the property involved is a puramboku land, the State of Kerala, the Tahsildar and the Village Officer concerned were impleaded as the defendants 3 to 5. 5. The first defendant filed written statement contending, inter alia, that the suit is not maintainable under Section 47 of the Code of Civil Procedure as the plaint B schedule property is delivered to the first defendant in E.P.No.172/2008 in execution of the decree in O.S.No.102/1997. If the plaintiff had any objection regarding the delivery, it has to be adjudicated before the Execution Court and not by a separate suit and that the suit is barred by res judicata. 6. The second defendant remained ex parte. 7. The defendants 3 to 5 filed Written Statement as well as Counter Claim contending that the plaint schedule property absolutely belonged to the Government and nobody has any right, title or interest therein. The judgment and decree in O.S.No.102/1997 and A.S.No.92/2002 are not binding on the Government with respect to plaint B schedule property and hence sought for a counterclaim for decree of declaration with respect to the title and possession of the Government over plaint B schedule property and for consequential injunction. Plaint B schedule property is shown as the counterclaim schedule property. 8. The Trial Court framed issues both in the suit and in the counterclaim. The defendants 3 to 5 endorsed in the counterclaim to withdraw the counterclaim with liberty to approach the Execution Court and the same was granted by the Trial Court. 9. The issue with respect to the maintainability of the suit was considered by the Trial Court invoking Order 14 Rule 2(2) CPC. The Trial Court found that the suit is not maintainable in view of the provisions contained in Order 21 Rule 97 to 103 CPC. 9. The issue with respect to the maintainability of the suit was considered by the Trial Court invoking Order 14 Rule 2(2) CPC. The Trial Court found that the suit is not maintainable in view of the provisions contained in Order 21 Rule 97 to 103 CPC. The Trial Court found that the plaintiff ought to have agitated all his contentions before the Execution Court and not by a separate suit. It is also found that the suit is not maintainable under Section 20A of the Kerala Land Conservancy Act. Accordingly, the Trial Court dismissed the suit finding that the suit is not maintainable. 10. The Additional plaintiffs filed Appeal before the First Appellate Court. The First Appellate Court set aside the judgment and decree passed by the Trial Court and remanded the matter back to the Trial Court for fresh disposal holding that whether the suit is barred under Order 21 Rule 97 to 103 CPC is a mixed question of fact and law and it cannot be held that the said issue is a pure question of law which could be disposed of as a preliminary issue under Order 14 Rule 2 CPC. The finding of the Trial Court that the suit was barred under Section 20A of the Kerala Land Conservancy Act at the threshold of the suit was also found to be not proper. 11. This Court admitted this Appeal without formulating a substantial question of law. Hence, the following substantial questions of law were formulated as per the Order dated 27.05.2005. (i) Whether the First Appellate Court is justified in holding that the Trial Court illegally disposed the suit on preliminary issue under Order XIV Rule 2 of CPC? (ii) Whether the First Appellate Court erred in holding that the question whether bar under Order XXI Rule 97 to 103 of CPC to the suit is a mixed question of fact and law? (iii) Whether the Trial Court is legally correct in holding that the suit is barred under Order XXI, Rule 97 to 103 of CPC? (iv) Whether the Trial Court is legally correct in holding that the suit is barred under the Kerala Land Conservancy Act, 1957? 12. I heard the learned Counsel for the appellant, Sri. R.S. Kalkura and the learned counsel for the respondents 1 to 4, Sri. (iv) Whether the Trial Court is legally correct in holding that the suit is barred under the Kerala Land Conservancy Act, 1957? 12. I heard the learned Counsel for the appellant, Sri. R.S. Kalkura and the learned counsel for the respondents 1 to 4, Sri. D. Deepak and the learned Senior Government Pleader, Smt. Rekha C. Nair for respondents 5 to 7. 13. The learned counsel for the appellant contended that the First Appellate Court ought not to have interfered with the judgment and decree passed by the Trial Court. The maintainability of the suit was decided by the Trial Court on the basis of the admitted facts available before the Trial Court. The Plaintiff admitted that she was evicted from the plaint schedule property in execution of the decree in A.S.No.92/2002. The plaintiff did not raise any objection against the delivery of the plaint B schedule property to the first defendant. If at all the plaintiff had any grievance against the decree passed by the First Appellate Court in A.S.No.92/2002, the plaintiff should have raised the same before the Execution Court itself and she has no right to agitate the same by filing a separate suit in view of the bar under Section 47 and Order 21 Rule 101 CPC. 14. On the other hand, the learned counsel for the respondents 1 to 4 contended that the Trial Court acted illegally in considering the maintainability of the suit as a preliminary issue, invoking Order 14 Rule 2(2) CPC. The suit was perfectly maintainable and the same is not barred under Section 47 and Order 21 Rule 101 CPC. It is well settled by the decisions of this Court and the Hon’ble Supreme Court that the remedy under Order 21 Rule 97 & 99 is not available to the judgment debtor. In such a case, the suit filed by the judgment debtor is perfectly maintainable. The decree in A.S.No.92/2002 is the result of fraud and collusion on the part of the defendants 1 & 2. Fraud vitiates every proceeding. It is settled law that a decree obtained by fraud can be challenged even in collateral proceedings. In such a case, the suit filed by the judgment debtor is perfectly maintainable. The decree in A.S.No.92/2002 is the result of fraud and collusion on the part of the defendants 1 & 2. Fraud vitiates every proceeding. It is settled law that a decree obtained by fraud can be challenged even in collateral proceedings. The learned counsel cited the decision of the Hon’ble Supreme Court in Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others, (2006) 5 SCC 638 to enlighten the scope of Order 14 Rule 2 and contended that the said provision does not authorise the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon the decision of fact it cannot be tried as a preliminary issue. The learned counsel cited the decision of the Madhya Pradesh High Court in M/s. Ramdayal Umraomal v. M/s. Pannalal Jagannathji, 1979 KHC 1648 and contended that it is only issue of law going to the root of the case and capable of being decided without recording the evidence that must be tried in the first instance and the decision on the issues of facts should be postponed till after the legal issues have been determined. The learned counsel cited the decision of the Hon’ble Supreme Court in Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises, (1999) 1 SCC 558 to contend that the Executing Court cannot go behind the decree unless it is shown that it is passed by a court having an inherent lack of jurisdiction, which would make it a nullity. The learned counsel relied on the decision of this Court in Ittiyachan v. Tomy, 2001 (3) KLT 117 to substantiate the point that the remedy under Order 21 Rule 97 is not available to the judgment debtor. The learned counsel cited the decision of this Court in Latheef M. v. Hosdurg Service Co-operative Bank Ltd., Kasargode, 2025 (3) KLT 696 in which it is held that ‘any person’ used in Order 21 Rule 97 CPC cannot be extended to include a judgment debtor for whom, right/ remedy, if any, lies elsewhere and not under Order 21 Rule 97 CPC. The learned counsel cited the decision of this Court in Vicar, Jerusalem Marthoma Church, Nanthencode v. Mamman Thomas and Others, 2010 (4) KHC 812 to contend that when a decree is suffering from illegality or irregularity of procedure, it cannot be termed inexecutable by the executing court and the remedy of the aggrieved person by such a decree is to have it set aside by taking appropriate legal proceedings. The learned counsel cited the decision of the Hon’ble Supreme Court in Balvant N. Viswamitra and Others v. Yadav Sadashiv Mule (Dead) by LRs. and Others, (2004) 8 SCC 706 and contended that lack of jurisdiction in the court passing the decree alone could be raised before the Execution Court. 15. I have considered the rival contentions. 16. The Trial Court dismissed the suit after trying the maintainability of the suit as a preliminary issue, invoking its jurisdiction under Order 14 Rule 2(2) CPC. The question considered by the Trial Court was whether the suit is barred under Order 21 Rule 97 to 103 CPC. Admittedly, the plaintiff was evicted in execution of the decree in A.S.No.92/2002. Order 21 Rule 101 CPC provides that all questions, including questions relating to right, title or interest in the property arising between the parties to a proceedings on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. The contention of the learned counsel for the appellant is that a separate suit at the instance of the judgment debtor is clearly barred. The learned counsel pointed out that the decree was executed by effecting delivery without any resistance from the plaintiff herein, who was the judgment debtor therein. If at all she had any grievance against the decree, she should have resisted the delivery and filed a claim petition under Order 21 Rule 99 CPC. The contention of the learned counsel for the contesting respondents is that the remedy under Order 21 Rule 97 & Rule 99 CPC is not available to a judgment debtor and hence a separate suit can be maintained. 17. The contention of the learned counsel for the contesting respondents is that the remedy under Order 21 Rule 97 & Rule 99 CPC is not available to a judgment debtor and hence a separate suit can be maintained. 17. The remedy under Order 21 Rule 97 & Rule 99 is not available to the judgment debtor on account of the reason that it is for the judgment debtor to raise all his contentions in the suit itself. The fraudulent and collusive nature of the decree can be raised only after the passing of the decree. A person who suffered the decree in a suit can always challenge the decree on the ground of fraud by filing a separate suit. He will be able to win in such suit only if he proves that there is fraud in obtaining the decree by the decree holder. A suit challenging the decree in another suit on the ground that the same is obtained by fraud and collusion will not come within the scope of the suit barred under Order 21 Rule 101 CPC. It is open to the judgment debtor to file a suit challenging the decree on the ground of fraud and collusion even after effecting delivery and even if he has not raised any objection to the execution or resistance to the delivery. It is immaterial whether he has filed any petition under Order 21 Rule 99 CPC or not. It is a settled law that fraud vitiates every proceeding and that a decree obtained by fraud can be challenged even in collateral proceedings. 18. In the present case, the contention of the plaintiff is that the decree obtained by the defendants against the plaintiff in A.S.No.92/2002 of the District Court, Kollam, to the extent to which it relates to the plaintiff, was obtained by the defendants fraudulently and collusively. It is a matter to be proved in the trial. The Trial Court should not have considered maintainability of such suit as a Preliminary issue in view of the decision of the Hon’ble Supreme Court in Ramesh B. Desai (supra) and the decision of the Madhya Pradesh High Court in Ramdayal Umraomal (supra). The First Appellate Court is perfectly justified in setting aside the judgment of the Trial Court and remanding the case back to the Trial Court for fresh disposal in accordance with law. 19. The First Appellate Court is perfectly justified in setting aside the judgment of the Trial Court and remanding the case back to the Trial Court for fresh disposal in accordance with law. 19. The substantial question of law No.1 is answered in the affirmative and the substantial question of law No.2 is answered in the negative, both in favour of the respondents. The substantial questions of law Nos.3 and 4 are to be considered by the Trial Court after concluding the trial. 20. In view of my answers to the substantial questions of law Nos.1 and 2, this Appeal is dismissed without costs.