Allah Dee vs Civil Judge,Moradabad and Others

R.N. Ray, J.—This revision is taken up for hearing. The learned counsel for the respondents submitted that his client is not responded to his letter and as such he has no instruction to argue on behalf of the respondents.

Heard the learned counsel for the applicant. It has been submitted that the suit property belongs to the plaintiff but the father and son filed the suit in a collusive manner. One represented as a plaintiff and another as defendant and the suit was decreed as it was just decreed and thereupon an execution proceedings was started. This applicant came to know about the execution proceedings and he hurriedly came to the court and filed an objection and that objection was rejected by the learned court below, hence the revision before this Court.

It is settled principle of law that the executing court can dismiss the execution proceedings if he finds that the decree was a nullity void. The decree may be a nullity void for want of territorial jurisdiction for want of pecuniary jurisdiction. The decree may be nullity if the decree was pronounced against a dead person that is to say before final hearing the person was dead against whom the decree was passed or that fraud was practiced upon the court to get that decree in collusive manner. In all other circumstances, where the decree is passed in a collusive manner or upon practicing fraud upon the parties, then it is voidable. Since this revisionist was not a party in the original suit, the learned executing court rightly rejected the objection and declined to entertain this petition in that execution proceedings. It was not within the scope of Section 47, C.P.C. to entertain such application. I am afraid that in such circumstances, if any objection within Order XXI, Rule 58 C.P.C. is filed, then whether it can be legally entertained to grant relief of dismissing the execution case. The proper recourse was to file a separate suit for setting aside the decree on the ground of collusion and fraud.

With these observations and in view of my discussions, made above, I hold that the revision is not maintainable and is dismissed but as none contested here, I do not order as to costs.

The order is pronounced in the open court, in presence of the learned counsel for both the parties, immediately after conclusion of the argument. Revision dismissed.