Veena Tripathi vs Hardayal

Indermeet Kaur, J.—The order impugned is dated 03.05.2012; the executing court had dismissed the objections filed by the judgment debtor u/s 47 of the CPC (hereinafter referred to as ''the Code''); these objections are dated 01.05.2012. Record shows that a suit for recovery had been filed by the plaintiff-Hardyal against the petitioner/defendant-Dr. Veena Tripathi. This was a suit u/s 37 of the Code; plaintiff claimed to be the owner of property bearing No. WZ-904, Nagal Raya, Main Pankha Road, New Delhi -46; the basement, second and third floor were stated to be in possession of the plaintiff; ground and first floor had been let out to the defendant in 2001 @ Rs. 10,000/- for running a Nursing Home where it was run under the name of Shubham. The defendant was making irregular payments; on certain occasions cheques issued by the defendant were bounced because of insufficient find. The present suit has been filed on the basis of five cheques details of which find mention in para 4 of the plaint. They are cheques dated 12.08.2001, 18.09.2002, 13.05.2003, 25.08.2001 and 18.09.2002; all in the sum of Rs. 10,000/- except the last cheque which is in the sum of Rs. 16,500/-; principal figure of these cheques was Rs. 56,500/- and alongwith interest the said amount was Rs. 59,380/-. After service of summons, the memo of appearance was not filed by the defendant; she having failed to put in appearance, the ex parte judgment and decree had fallen in favour of the plaintiff on 20.12.2004; the suit was decreed in the sum of Rs. 56,350/- alongwith interest @ 8 % per annum from the date of the filing of suit till realization.

Thereafter an application under Order 37 Rule 4 of the Code had been filed by the defendant; that application is not on record. Learned counsel for the petitioner has fairly conceded that in the application under Order 37 Rule 4 of the Code, he had pleaded ''special circumstances''; the ''special circumstances'' being that the defendant had not been served with the summons of the suit and thus ex parte judgment and decree dated 20.12.2004 is liable to be set aside; admittedly, the question of fraud had never been raised by the defendant; it was never his case that the decree has been obtained by fraud for one reason or the other.

This application under Order 37 Rule 4 of the Code which was filed on 17.04.2005 was finally dismissed on 28.07.2011; the court had rejected the plea set up by the defendant that she had not been served with the summons; court had returned a finding that ''special circumstances'' for setting aside the decree and judgment dated 20.12.2004 are not made out; application was accordingly dismissed.

Execution proceedings were filed; in the course of the execution proceedings, the application under Order 47 of the Code was filed where the first time the plea of fraud was set up. Relevant would it be to state that the application u/s 47 of the Code only contains a three line version in the first paragraph wherein it has been stated that the decree holder has concealed a lease agreement dated 23.04.2008 and rent receipts dated 23.04.1998, 20.08.2001, 25.09.2002, 20.05.2003 and 30.08.2003 which had been duly executed by him; how and what circumstances these documents even presuming that they were created only to make out a case of fraud have nowhere been detailed. In fact specific queries have been put to the learned counsel for the petitioner on the interlinking of these documents with the lease agreement and rent receipts which was so alleged but he has no answer. As noted supra, the instant suit is based on five cheques dates of which are noted above and which in no manner connected with the rent receipts issued on the dates mentioned above. This is also not the case set up by the defendant; there is no such averment to the said effect. It is also not in dispute that the plea of fraud has been set up by the defendant for the first time before the executing court and never an averment in his application under Order 37 Rule 4 of the Code wherein he detailed the ''special circumstances'' for setting aside the ex parte judgment and decree dated 20.12.2004. In these circumstances, the reliance by the learned counsel for the petitioner upon the judgment reported in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others,

267 titled as M/s. Saraswat Trading Agency vs. Union of India & Ors. is misplaced.

There is no doubt to the settled legal position that fraud vitiates all transactions and any decree which has been obtained by fraud is ''non-est'', not legal and not binding. However, it is settled position that the so called fraud must be prima facie shown by the party alleging the fraud; as the averments made in the application under Order 47 of the Code do not in any manner detailed the fraud; in fact there is only a three line version in the entire application which makes a mention of the concealment of certain documents but how the concealment of these documents perpetuates a fraud has neither been explained in the said application nor the counsel of petitioner has been able to answer to a specific query put to the learned counsel on this count. It is also an admitted fact that in the application under Order 37 Rule 4 of the Code ''special circumstances'' had been alleged but plea of fraud was never taken before that court. The impugned judgment had thus rightly noted that in this factual scenario objections u/s 47 of the Code have no force and were thus rightly dismissed. Petition is without any merit; it is dismissed.