# Kishan Lal Barwa v. Sharda Saharan & Anr

- **Citation:** (2015) 1 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-24
- **Case number:** Civil Misc. Writ Petition No. 4788 of 2015
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-lal-barwa-v-sharda-saharan-anr-43284
- **Pages:** 16

## Headnote

C.P.C. Section 47-Execution proceedingdecree
obtained
by
fraud-whether
execution Court can consider such issue
of fraud-held-'yes'-execution Court being
duty bound to consider-as fraud vitiates
all solemn acts-such application can not
be rejected-order impugned quashed
with cost of Rs. 500/-with direction to
expeditious disposal.
Held: Para-19
It is well settled that once the plea of
fraud has been setup by the defendantpetitioner before the executing court,
and credible evidence in support of such
plea was also placed, it was incumbent
upon
the
executing
court
to
have
examined the issue of fraud, on merits,
and such plea ought not to have been
rejected merely on the ground that a
decree
in
favour
of
the
plaintiffrespondent had been passed, and the
executing
court,
as
such,
had
no
occasion to examine the plea of fraud. It
is also well settled that fraud vitiates all
solemn acts. Though a plea of fraud was
taken up before the civil court, but such
plea was not adjudicated, which is
clarified in the judgment of the civil
court itself. However, if a credible
material has come into existence, which
if is found proved vitiates the decree
itself, it is the duty of the executing
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
219
court to consider such plea on merits. It
was open for the executing court to have
examined the report of the Directorate,
Fingerprint Experts, in accordance with
law, and for such purpose an opportunity
was liable to have been allowed to the
plaintiff-respondent. The executing court
could have adjudicated as to whether
the plea of fraud was made out on facts
or not? but it was not open for the
executing court to brush aside the
objection itself and thereby refused to go
into such issue itself.
Case Law discussed:
AIR 1973 Bom. 139; AIR 1970 Pat. 13 para
13; AIR 1978 Ori. 111; AIR 1986 PH 197;
2000(7) SCC 543; Lrs:JT 1995 (5) SC 496;
(2011) 6 SCC 385; AIR 2000 Punjab and
Haryana 271; (2006) 7 SCC 416.

## Text

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218
 INDIAN LAW REPORTS ALLAHABAD SERIES
according to prescribed mode and further
that audit report is a statement of facts
pertaining to the maintenance of accounts
coupled with the opinion of the auditor
and thus it can only give rise to
reasonable suspicion of commission of a
wrong. Merely on the basis of said audit
report without the charge of causing loss
being
established
in
a
full-fledged
departmental inquiry, no recovery of
alleged loss caused to the State Exchequer
can be made.
18.

In
similar
circumstances,
recovery sought to be made from the
gratuity of a retired government employee
on the basis of some audit report was not
approved by a Division Bench of this
Court in the case of Radhey Shyam Dixit
vs State of U.P. and others, reported in
2006 (110) FLR 101.
19. For the reasons disclosed above
in the instant case as well, the recovery of
the part of the amount of gratuity of the
petitioner, which has been sought to be
made by passing the impugned order
dated 24.07.2013, cannot be permitted to
be sustained.
20. In the result, the writ petition is
allowed and the impugned order dated
24.07.2013 passed by the Regional Food
Controller, Faizabad Region, Faizabad as
contained in annexure no.1 to the writ
petition is hereby quashed. It is directed
that payment of entire gratuity amount
shall be made to the petitioner within six
weeks from the date of production of
certified copy of this order.
21. However, there will be no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2015
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 4788 of 2015
Kishan Lal Barwa
...Petitioner
Versus
Sharda Saharan & Anr.
...Respondents
Counsel for the Petitioner:
Sushma Singh, Sri Manish Singh
Counsel for the Respondents:
Sri Pankaj Agarwal
C.P.C. Section 47-Execution proceedingdecree
obtained
by
fraud-whether
execution Court can consider such issue
of fraud-held-'yes'-execution Court being
duty bound to consider-as fraud vitiates
all solemn acts-such application can not
be rejected-order impugned quashed
with cost of Rs. 500/-with direction to
expeditious disposal.
Held: Para-19
It is well settled that once the plea of
fraud has been setup by the defendantpetitioner before the executing court,
and credible evidence in support of such
plea was also placed, it was incumbent
upon
the
executing
court
to
have
examined the issue of fraud, on merits,
and such plea ought not to have been
rejected merely on the ground that a
decree
in
favour
of
the
plaintiffrespondent had been passed, and the
executing
court,
as
such,
had
no
occasion to examine the plea of fraud. It
is also well settled that fraud vitiates all
solemn acts. Though a plea of fraud was
taken up before the civil court, but such
plea was not adjudicated, which is
clarified in the judgment of the civil
court itself. However, if a credible
material has come into existence, which
if is found proved vitiates the decree
itself, it is the duty of the executing
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
219
court to consider such plea on merits. It
was open for the executing court to have
examined the report of the Directorate,
Fingerprint Experts, in accordance with
law, and for such purpose an opportunity
was liable to have been allowed to the
plaintiff-respondent. The executing court
could have adjudicated as to whether
the plea of fraud was made out on facts
or not? but it was not open for the
executing court to brush aside the
objection itself and thereby refused to go
into such issue itself.
Case Law discussed:
AIR 1973 Bom. 139; AIR 1970 Pat. 13 para
13; AIR 1978 Ori. 111; AIR 1986 PH 197;
2000(7) SCC 543; Lrs:JT 1995 (5) SC 496;
(2011) 6 SCC 385; AIR 2000 Punjab and
Haryana 271; (2006) 7 SCC 416.
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)
1. The present writ petition is
directed against the orders passed by Civil
Judge (Senior Division), Gautam Buddh
Nagar,
dated
26.2.2014,
rejecting
objection under section 47 CPC, as well
as the order dated 29.5.2014, rejecting the
revision filed against it. The question
falling for consideration of this Court, in
the instant petition, is as to whether the
executing court is justified in refusing to
examine plea of fraud, setup in objection
under section 47 CPC, on the basis of a
subsequent report of public servant, for
the reason that such defence setup before
civil court was not substantiated, resulting
in passing of the decree itself?
2. Facts as it emerges from record
are that Noida (New Okhala Industries
Development Authority) executed a lease
deed of a residential plot no.39, Block-C,
Sector- XV, measuring 202.50 sq. meters,
in favour of Ashok Kumar, on 23.5.1981.
The defendant-petitioner asserts that a
registered agreement to sell was executed
by the lessee Ashok Kumar in favour of the
defendant-petitioner on 7.8.1984, pursuant
to which, the defendant-petitioner was put
in actual possession and that a five storybuilding was constructed by him, which
exists on the spot. It further appears that in
respect of the same plot, the plaintiffrespondent asserts that a power of attorney
was executed by the lessee Ashok Kumar in
favour of respondent no.2 Ripudman
Kumar Saharan on 25.10.1984, on the basis
of which, a sale deed of the plot was
executed on 25.2.1986 in favour of his wife
Smt. Sharda Saharan, who is plaintiffrespondent no.1 in the present petition.
3. Smt. Sharda Saharan, thereafter,
filed a civil suit no.842 of 1986 for
permanent
prohibitory
injunction,
in
respect of the plot in question, against the
defendant-petitioner with the allegation
that the plaintiff-respondent has obtained
a sale deed of the plot in question on
25.2.1986, which was executed by the
power of attorney holder of the lessee
Ashok Kumar. It was further asserted that
the plaintiff-respondent has also got a
map sanctioned for raising of construction
upon the plot on 8.4.1986 and a
temporary construction of a store was
raised upon it. The suit was filed against
the defendant-petitioner saying that he
had no right over the suit property, yet, he
is hellbent upon forcibly entering into
possession, and therefore, the defendantpetitioner be restrained from interfering
with the right of the plaintiff-respondent
over the suit property. The suit was
contested by the defendant-petitioner
asserting that no power of attorney was
ever executed by Ashok Kumar in favour
of Ripudman Kumar Saharan, and the
alleged
power
of
attorney
dated
25.10.1984 was a forged document. It was
220
 INDIAN LAW REPORTS ALLAHABAD SERIES
also stated that no right accrues to the
plaintiff-respondent over the suit property
on the basis of sale deed, as the power of
attorney itself was a fraudulent document.
The plaintiff-respondent no.1 Smt. Sharda
Saharan was the sole plaintiff and
defendant-petitioner Kishan Lal Barwa
was the sole defendant. An affidavit in the
suit was filed by Ashok Kumar, claiming
to be lessee of the suit property, stating
that he has not executed any power of
attorney in favour of Ripudman Kumar
Saharan and the said document contains
signatures of someone other than him. It
was further stated in the affidavit that the
property has been agreed to be sold to the
defendant-petitioner and he has been put
in possession of the property. The suit
was tried by the civil court and five issues
were framed, first of which, was whether
the plaintiff-respondent is the owner in
possession of the disputed plot? The civil
court noticed the contention of the
defendant-petitioner that only certified
copies of the power of attorney as well as
the sale deed pursuant thereto have been
brought on record and that its originals
have not been produced. The challenge to
the power of attorney, on the ground that
it is a fraudulent document, was not
considered by the civil court, on the
ground that the person, who has executed
the power of attorney, had not disputed its
execution by appearing before the civil
court. It was, therefore, held that so long
as the sale deed continues to exist in
favour of the plaintiff-respondent, she
would be treated to be the owner of the
property. The civil court also found that
the plaintiff-respondent is in possession of
the suit property. The suit was ultimately
decreed on 27.4.1991 in favour of the
plaintiff-respondent. This judgment and
decree was put to challenge in civil appeal
no.74 of 1991 and the same was
dismissed on 23.1.1992. A second appeal,
being S.A. No.448 of 1992, filed against
it, was also rejected by this Court on
18.2.2002. The decree passed by the civil
court, granting prohibitory injunction to
the
plaintiff-respondent,
against
defendant-petitioner thus attained finality.
4. The plaintiff-respondent, thereafter,
filed a writ petition no.38949 of 2002 with
the allegation that during pendency of the
proceedings, the defendant-petitioner has
forcibly entered into possession of the suit
property, by throwing out the plaintiffrespondent. A counter affidavit in the said
writ petition was filed by the Station House
Officer, stating that defendant-petitioner has
remained in possession over the suit property
in question since 1984 and a criminal
proceeding under section 156(3) Cr.P.C. has
also been got registered at the instance of the
defendant-petitioner. The aforesaid writ
petition was heard and was dismissed with
the observation that plaintiff had, in the facts
of the case, an effective remedy under Order
21 Rule 32 CPC, for execution of decree of
prohibitory injunction. It is after this order of
the Division Bench of this Court dated
13.3.2008 that execution case no.20 of 2010
was filed for possession, with the allegation
that the judgment debtor had forcibly entered
into possession over the suit property in
November, 2002, with the help of local
administration, unauthorizedly and in teeth
of the decree, and therefore, appropriate
relief for possession was claimed. It is not in
dispute that during pendency of
the
proceedings, aforesaid, Ashok Kumar, who
undisputedly was the allottee of the plot from
Noida and through whom rights were
claimed by rival parties, died.
5. It further appears from the record
that pursuant to an application made
before the Chief Judicial Magistrate under
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
221
section 156 (3) Cr.P.C., a criminal case
no.499 of 2002 under section 420, 468,
467, 471 IPC was registered at the
instance
of
the
defendant-petitioner
against Ripudman Kumar Saharan and
Smt.
Sharda
Saharan.
During
investigation, the fingerprints of Ashok
Kumar, as it appeared on lease deed
executed by Noida in his favour were got
tallied with the fingerprints appearing on
the agreement to sell executed in favour
of the defendant-petitioner and also upon
the alleged power of attorney executed in
favour of Ripudman Kumar Saharan on
25.10.1984. A fingerprint report was
submitted by the office of Directorate,
Fingerprint
Experts,
State
of
U.P.,
Lucknow on 30.5.2003 to the Chief
Judicial
Magistrate,
Gautam
Buddh
Nagar, wherein experts of the directorate
found that the fingerprints of Ashok
Kumar, as appearing on the lease deed
executed by Noida in his favour, do not
match with the fingerprints on the power
of attorney, whereas fingerprints of Ashok
Kumar do match with his fingerprints on
the agreement to sell executed in favour
of the defendant-petitioner.
6. In execution of the decree,
aforesaid, the defendant-petitioner filed
objection under section 47 CPC, wherein
apart from raising other issues, it was also
stated that the basis of decree in favour of
the plaintiff-respondent was the sale deed
executed by Ripudman Kumar Saharan,
on the basis of power of attorney executed
by Ashok Kumar on 25.10.1984 in his
favour, which has been found to be a
forged document, as such, the decree
itself has been obtained by playing fraud,
and therefore, is nullity and inexecutable.
The plaintiff-respondent filed an objection
against it. The executing court found that
the decree of prohibitory injunction had
been passed after contest in favour of the
decree holder, after returning a finding on
issue no.1 that the plaintiff-respondent is
the owner in possession over the suit
property, and therefore, the executing
court cannot go behind the decree.
Consequently, the objection under section
47 CPC has been rejected. Aggrieved
against it, a revision was preferred, which
has also been dismissed by the revisional
court with the finding that the issue of
ownership of the plaintiff-respondent
since
had
been
adjudicated
and
determined in original suit, thereafter, it is
not open for the executing court to
examine the questions, which are being
urged in objection under section 47 CPC.
It has been further held that once the
plaintiff-respondent had been held to be
owner in possession of the suit property
and the execution has been filed, it is not
open for the executing court to reconsider
all such questions, which had attained
finality with the passing of the decree
itself, and in such circumstances, the
revisional court refused to interfere with
the orders passed by the executing court.
It is aggrieved by these two orders that the
present writ petition has been filed by the
defendant-petitioner.
7. Sri Manish Singh, learned counsel
appearing for the defendant-petitioner,
submits that only the issue, which was
examined in the suit was as to whether the
plaintiff-respondent was the owner in
possession on the basis of sale deed over
the suit property, and no issue with regard
to genuineness of the power of attorney
was raised or adjudicated. It is also
submitted that though it was pleaded by
the defendant-petitioner in the suit that no
power of attorney was executed by Ashok
Kumar and such stand was also taken by
Ashok Kumar by filing an affidavit, but
222
 INDIAN LAW REPORTS ALLAHABAD SERIES
this aspect of the matter was not
examined by the civil court on the ground
that Ashok Kumar had not denied the
execution of power of attorney by
appearing before the civil court. Sri Singh
further submits that subsequently, in
criminal proceedings, evidence has been
collected in the form of a fingerprint
report submitted by a public officer of the
office of Directorate, Fingerprint Experts,
State of U.P., at Lucknow, which clearly
establishes that the sale deed in favour of
the plaintiff-respondent was obtained by
playing fraud, as no power of attorney
was executed on 25.10.1984 in favour of
Ripudman Kumar Saharan, and therefore,
the decree was inexecutable. Learned
counsel has placed reliance upon section
44 of the Indian Evidence Act to contend
that the judgment and decree obtained by
fraud cannot be executed. It is thus
submitted that the courts below have
grossly erred in law, in refusing to
examine the plea of fraud setup by the
defendant-petitioner
in
execution
proceedings,
resulting
in
failure
of
injustice being caused to the defendantpetitioner.
8. Sri Pankaj Agrawal, learned
counsel appearing for the respondents, on
the other hand, submits that the plaintiffrespondent is the owner in possession,
which issue has already been accepted by
the civil court, and has attained finality,
and thereafter, the same question cannot
be raised in execution, as the executing
court cannot go behind the decree. He
further submits that once the plea of fraud
was setup in suit, it could have been
established by the defendant-petitioner by
leading cogent evidence, but once he
failed to do so, it is not open for him to
take such stand in execution. Sri Agrawal
has also submitted that the defendantpetitioner in teeth of the decree has
forcibly entered into possession and all
frivolous objections are being raised so as
to deny the benefit of the decree to the
plaintiff-respondent. It is also submitted
that defendant-petitioner had also got
execution stalled by setting up a plea
under Order 21 Rule 97 CPC by Madan
Mohan, who is the son of Ashok Kumar,
and now that the proceedings under Order
21 Rule 97 CPC are likely to conclude,
therefore, this belated petition has been
filed with the object of further harassing
the
plaintiff-respondent.
It
is
also
submitted that the plea of fraud though
has been taken in the objection, but the
same was not pressed before the courts
below, and therefore, such issue cannot be
permitted to be adjudicated in the writ
petition arising out of such orders.
9. Learned counsel appearing for
both the parties have relied upon various
authorities in support of their proposition.
With the consent of the learned counsel
for the parties, the writ petition is being
disposed of finally, at this stage. Both the
parties have filed their written argument,
which have been taken on record and are
being considered while deciding the writ
petition.
10. From the materials placed on
record, it is apparent that the suit property
was leased out by Noida to Ashok Kumar,
pursuant to lease deed dated 23.5.1981.
The judgment debtor and decree holder
both are claiming their right over the suit
property through Ashok Kumar. The
defendant-petitioner has setup his right
over the suit property on the basis of a
registered agreement to sell, pursuant to
which he alleges to have been put in
possession by Ashok Kumar. On the other
hand, the plaintiff-respondent has setup
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
223
her right, on the basis of sale deed,
executed in her favour by her husband
Ripudman Kumar Saharan, on the basis of
a registered power of attorney claimed to
have been executed by Ashok Kumar on
25.10.1984. Original Suit no.842 of 1986
had been filed by the plaintiff-respondent
against the defendant-petitioner with the
allegation that the defendant-petitioner
had no right over the suit property, and as
such,
the
defendant-petitioner
be
restrained from interfering with her
possession. The suit was contested by the
defendant-petitioner with the allegation
that the plaintiff-respondent had no right
over the suit property, as no power of
attorney in favour of Ripudman Kumar
Saharan was executed by Ashok Kumar
and the power of attorney relied upon for
executing the sale deed in favour of
plaintiff-respondent is forged. It was
stated
that
the
defendant-petitioner
pursuant to agreement to sell has been put
in possession of the property and he is the
owner in possession of the suit property.
The civil court examined the question and
vide issue no.1 returned a finding that the
plaintiff-respondent
is
owner
in
possession over the suit property. It
further appears that Ashok Kumar had
filed an affidavit before the civil court,
denying the execution of power of
attorney in favour of Ripudman Kumar
Saharan. The civil court dealt with this
aspect of the matter in following words:-
^^ tgkWa rd izfroknh bl rdZ dk iz'u gS fd
lsy MhM mlds ifr }kjk dh x;h gS vkSj ikWoj
vkWQ vVkuhZ ftlds vk/kkj ij lsy MhM dh x;h gS
og lkfcr ugha gS pwWfd blds djus okys dks is'k
ugh fd;k x;k gSA ;gh lgh gS fd izLrqr okn esa
tks ikWoj vkWQ vVkuhZ dh izekf.kr izfrfyfi nkf[ky
dh x;h gS mldks rFkk cSukesa dh izekf.kr izfrfyfi
nksuksa dks ih0MCyw0&01 tks oknuh dk ifr gS] ugha
lkfcr fd;k gS] xyr gS] D;ksafd ;g vkifRr ml
O;fDr }kjk ugha mBkbZ x;h gS ftlds }kjk ikWoj
vkWQ vVkuhZ nh x;h gSA ogh O;fDr ;g dg ldrk
Fkk fd ikWoj vkWQ vVkuhZ mlds }kjk ugha dh x;h
gSA pwWfd nLrkost jftLVMZ gSA vr% tc rd mls
QthZ lkfcr ugha fd;k tk;s rc rd ;fn nLrkost
ftlds i{k esa fd;k x;k gS og ;g lkfcr djrk gS
fd nLrkost mlds i{k esa fu"ikfnr gqvk Fkk lgh
ekuk tk;sxkA ,slh dksbZ lk{; izfroknh us ugha nh gS
ftlls mDr nLrkost QthZ ekuk tk;sA ;|fi
oknuh }kjk nkf[ky lk{; bruh etcwr ugh gSa
ftruh dh gksuh pkfg;sA pwWfd vly cSukek nkf[ky
ugha gS vkSj ewy vkoaVd dh lk{; ugha djkbZ x;h
gS] fdUrq izLrqr lk{; ls ;g lkfcr gksrk gS fd
oknuh ds i{k esa fookfnr IykV dh ,d jftLVzh gqbZ
gS vkSj ftlls og ekfyd gS tc rd fd vU;Fkk
lkfcr u gksA^^
11. The appellate court found that
Ashok Kumar had not been produced
before the civil court. Appellate court has
also taken note of the fact that the power
of attorney executed by Ashok Kumar in
favour of Ripudman Kumar Saharan had
been lost, and the certified copies of the
power of attorney and sale deed were
placed on record. The civil court relying
upon the plaintiff's evidence, treated the
certified copies as admissible in evidence
as secondary evidence. It was also found
that Ashok Kumar had neither appeared
before the civil court nor he appeared
before the appellate court to challenge the
averments made in the plaint, and in such
circumstances, the plea set up by the
defendant-petitioner was rejected. The
observation of the appellate court, which
is relevant for the present purposes, as is
contained at page 81 of the writ petition,
is that "it was not open to the defendantpetitioner to contend that these papers
were forged papers. Until the original
allottee Ashok Kumar had come before
this Court to challenge the authenticity of
these papers." The affidavit filed by
Ashok Kumar before the civil court,
however, has not been commented upon
by the civil court or the appellate court.
224
 INDIAN LAW REPORTS ALLAHABAD SERIES
The second appeal itself was also
dismissed by this Court on 18.2.2002, as
no substantial question of law was found
to be involved in the matter.
12. A bare perusal of the record
further goes to show that so far as the plea
of fraud in execution of power of attorney
is concerned, the civil court had refused to
examine this aspect of the matter in the
absence
of
Ashok
Kumar
himself
disputing the due execution of the power
of attorney. In such circumstances, this
Court finds that the plea of power of
attorney being an outcome of fraud
though was pleaded by the defendantpetitioner, but the same had not been gone
into for the simple reason that executor
Ashok Kumar had not appeared to take
such a plea. No finding with regard to
genuineness of the power of attorney was
returned by the civil court.
13. This Court further finds that in
execution
proceedings,
a
specific
objection
has
been
taken
by
the
defendant-petitioner, to contend that the
basis of the decree in favour of plaintiffrespondent itself is based upon fraud,
inasmuch as the sale deed in favour of
plaintiff-respondent was executed on the
basis of power of attorney, which has
been
found
in
the report
of the
Directorate, Fingerprint Experts, U.P.,
Lucknow, to be not that of Ashok Kumar
and the claim of plaintiff-respondent
based upon it, therefore, is an outcome of
fraud,
which
renders
the
decree
inexecutable. Such an objection has been
taken under section 47 CPC. Both the
courts below, while narrating the contents
of the objection, have taken note of the
objection in this regard. Although Sri
Pankaj Agrawal has strongly urged that
this aspect of the matter was not pressed
before the courts below, but such a
contention is not liable to be accepted
inasmuch as the civil court has taken note
of the specific objection of the defendantpetitioner under section 47 CPC, and
therefore,
the
executing
court
was
required to examine this aspect of the
matter. Even in revision it is to be found
that the revisional court has taken note of
the contention of the defendant-petitioner
that the decree of the civil court was
obtained by playing fraud, and as such,
the decree itself is a nullity. This Court
finds that the executing court as well as
the revisional court were swayed by the
fact that once an adjudication on the
respective claim of the parties had been
returned by the civil court, the same was
not liable to be re-agitated, as a ground, in
execution. Both the courts below have
held that the nature of objection raised if
is examined, as is being claimed by the
defendant-petitioner, the object of decree
itself would be frustrated, and therefore,
the courts below have refused to go into
the merits of the contention setup by the
defendant-petitioner in objection under
section 47 CPC as well as in revision by
the District Judge.
14. This Court finds that the basis of
petitioner's claim that the decree was
obtained by fraud is a report submitted
before the Chief Judicial Magistrate by
the Directorate of Fingerprint Experts,
according to which, the fingerprints of
Ashok Kumar, as existing on the lease
deed executed by Noida do not match
with those upon the power of attorney
claimed by Ripudman Kumar Saharan
and rather matches with the agreement to
sell executed in favour of the defendantpetitioner. This report has been prepared
by
the
experts
of
Directorate
of
Fingerprint, who are public servants, and
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
225
the report is in due discharge of their
official duties, and by virtue of section
114 of the Indian Evidence Act, a
presumption of correctness of the report
would be available in law, subject to
further evidence which may be brought on
record by the other side. The question as
to whether a plea of fraud could be
entertained even in collateral proceedings,
at the stage of execution, after passing of
the decree, is no longer res integra. It is
settled that fraud and justice do not dwell
together. It is equally settled that a court
of law would do its utmost to ensure that
injustice is not meted out to a party. Such
right in a court of law has been
recognized under section 44 of Evidence
Act, which reads as under:-
"44. Fraud or collusion in obtaining
judgment, or incompetency of Court, may
be proved
Any party to a suit or other
proceeding may show that any judgment,
order or decree which is relevant under
section 40, 41 or 42 and which has been
proved by the adverse party, was
delivered by a Court not competent to
deliver it, or was obtained by fraud or
collusion."
15. Reliance has been placed upon a
decision of the Bombay High Court in
Shewa Lachha Banjar v. Bhawarilal
Ganeshmal Marwadi: AIR 1973 Bom.
139, wherein plea of fraud was setup in
execution was rejected by the courts
below.
In
such
circumstances,
the
Bombay High Court interfered with the
matter and made following observations:-
"-----It must be observed that even in
execution if it is shown that the order was
made upon mistake or fraud which affects
the very validity of the order under
execution rendering it ineffective, it can
properly be questioned by any one.
Section 44 of the Evidence Act in terms
applies to such matters and permits a
person to lead evidence to show that the
order is
not binding in any such
proceeding.-----"
16. Reliance has also been placed
upon following decisions of the High
Courts:-
(i) In Tribeni Mishra and others v.
Ram Pujan Mishra and another: AIR 1970
Pat. 13, para 13 has been relied upon,
which reads as under:-
"13. It may be mentioned here that
Shri Kailash Roy, appearing for the
defendant-respondents, has contended that
the question as to whether there was any
fraud in connection with the compromise
could not be gone into in the present
litigation in view of the fact that the
previous suit had been decreed on basis of
the compromise and the defendants had
not brought any suit for setting aside the
decree within the prescribed time limit
under Article 95 of the Limitation Act,
1908. the prescribed period of time limit
for institution of a suit for setting aside a
decree obtained by fraud or for other
relief on the ground of fraud was three
years from the date when the fraud
became known to the party and the same
period of limitation has been prescribed
under Article 59 of the new Limitation
Act also. Hence, there cannot be any
doubt that a suit by the defendants for
setting aside the decree on basis of the
compromise on the ground of fraud would
have been barred by limitation unless
filed within the prescribed time limit of
three years from the date of knowledge of
the fraud. Section 44 of the Evidence Act,
however, provides as follows:
226
 INDIAN LAW REPORTS ALLAHABAD SERIES
"Any party to a suit or other
proceeding may show that any judgment,
order or decree, which is relevant under
Section 40, 41 or 42 and which has been
proved by adverse party, was delivered by
a Court not competent to deliver it, or was
obtained by fraud or collusion."
The question as to whether in view
of these provisions, a decree or order can
be challenged on the ground of fraud in a
collateral proceeding without any suit for
setting aside the decree came up for
consideration before a Division Bench of
this Court in the case of Bishnunath
Tewari v. Mst. Mirchi, AIR 1955 Pat 66.
In this case, there was a divergence of
opinion between the two Judges of this
Court, namely, Lakshmikanata Jha, C. J.
and Reuben, J. who initially heard the
case, on which there was a reference to a
third Judge, namely, Ramaswami, J. fas
he then was) and the latter agreed with the
views expressed by Lakshmikanta Jha, C.
J. and observed as follows :--
"It is important to remember that
fraud does not make a judicial act or
transaction void but only voidable at the
instance of the party defrauded. The
judicial act may be impeached on the
ground of fraud or collusion in an active
proceeding for rescission by way of suit.
The defrauded party may also apply for
review of the judgment to the Court
which pronounced it. But the judgment
may also be impeached in a collateral
proceeding in which fraud may be set up
as a defence to an action on the judgment
or as an answer to a plea of estoppel or res
judi-cata found upon the judgment."
It was further held in this case that
the provision relating to limitation as
provided in Article 95 of the Limitation
Act has no bearing in relation to Section
44 of the Evidence Act. As would appear
from the terms of Section 44 of the
Evidence Act, already quoted above, this
section lays down that any party to a suit
or other proceeding may show that a
judgment, order or decree referred to in
the section, which has been proved by the
adverse party, was delivered by a Court
not competent to deliver it or was
obtained by fraud or collusion. The right
as given by this section has not been
fettered by any limitation whatsoever and
it is manifest that such a right is quite
independent of the right to get a judgment
or decree etc. set aside by bringing regular
suit for the purpose. I, therefore, fully
agree with the views expressed in the
earlier decision of this Court referred to
above and hold that such a plea can be
raised under Section 44 of the Evidence
Act in a collateral proceeding irrespective
of the time when the judgment was
delivered or decree or order was passed.
The aforesaid contention of Shri Kailash
Roy is accordingly rejected as being quite
untenable. This, however, makes no
difference so far as the result of this
appeal is concerned in view of the
findings above that there was no fraud in
connection with the compromise in
question."
(ii) In Khirod Chandra Mohanty v.
Banshidhar Khatua: AIR 1978 Ori. 111,
para 8 has been relied upon, which reads
as under:-
"8. It was urged by Mr. Mohanty that
even though it was held that the ex parte
decree in T.S. No. 52/64 was obtained by
collusion, that decree would operate as res
judicata in this case. In support of his
above submission Mr. Mohanty cited the
single Judge decision reported in AIR
1950 All 488 (Baboo v. Mt. Kirpa Dei).
The decision in that case was rendered
entirely on facts different from those in
the present case. In that case the question
was whether 'even if one of the
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
227
defendants to the suit was in collusion
with the plaintiff, the decision could be
said to be binding on the defendants on
the principle of res judicata.' That
question was decided in the affirmative.
In the present case before me, it has been
found by both the courts below that the ex
parte decree in T. S. No. 52/64 was
obtained by the plaintiff in collusion with
all the defendants in the said suit. That
being so, the above decision is not
applicable to the present case.
Under Section 44 of the Evidence
Act any party to a suit or other proceeding
may show that any judgment, order or
decree, which it or was obtained by fraud
or collusion. The provision of Section 44
is not an idle provision. If it is proved that
a judgment was obtained by collusion that
fact
will
affect
its
force,
effect,
executability and value. So it will be
absolutely incorrect to say that even if a
judgment is obtained by fraud or collusion
that will operate as res judicata in a
subsequent suit. That will be giving
premium to sham and illegal deals,
shutting out persons striving to uphold
their rightful cause or claim by exposing
illegal or unconscionable bargains.
In Manchharam v. Kalidas ((1895)
ILR 19 Bom 821) it was held that Under
Section 44, Evidence Act, a party to a
proceeding
is
never
disabled
from
showing that a judgment or order has
been obtained by the adverse party by
fraud.
In Nistarini Dassi v. Nundo Lall
Bose, ((1899) ILR 26 Cal 891) it was held
that an innocent party may be allowed to
prove in one court that a decree obtained
against him in a different proceeding in
another court of concurrent jurisdiction
was obtained by fraud, and if the court be
of opinion that such decree so obtained in
the other court cannot stand it has
jurisdiction to treat that decree as a nullity
and render its effect nugatory.
In Section 44of the Evidence Act the
word "Collusion" has been placed exactly
on the same footing as the word "fraud" in
the said section.
In the case reported in AIR 1955 Pat
66 (Bishunath Tewari v. Mst. Mirchi) it
has been observed:--
"Thus, a survey of the authorities of
the different High Courts, shows that a
judgment, decree or order of a court of
competent jurisdiction can be treated as a
nullity under Section 44, Evidence Act
and its effect rendered nugatory if it is
shown that it was obtained by fraud or
collusion of the antagonist".
On the above discussion I reject the
above-mentioned
contention
of
Mr.
Mohanty.
(iii) In Nechhittar Singh v. Smt. Jagir
Kaur and others: AIR 1986 PH 197, para
6 has been relied upon, which reads as
under:-
"6. The learned counsel for the
defendant
appellant
vehemently
contended that the decree could only be
challenged under S. 44 of the Evidence
Act and that too by a third party and not
by a party to the suit in which that said
decree was passed. In support of this
contention he referred to Mt. Parbati v.
Garaj
Singh,
AIR
1937
All
28,
Shripadgouda Venkangouda Aparanji v.
Govindgouda Narauangouda Aparanji,
AIR 1941 Bom 77, Parameswearn Naair
v. Aiyappan Pillai, AIR 1959 Ker 206 and
Laxmi Narain Gododia v. Mohd. Shafi
Bari, AIR 1949 East Punjab 141. On this
question I do not find any merit in the
contention raised on behalf of the
appellant. S. 44 of the Evidence Act reads
as follows:--
"Fraud or collusion in obtaining
judgment, or incompetency of Court, may
228
 INDIAN LAW REPORTS ALLAHABAD SERIES
be proved.-Any party to a suit or other or
decree which is relevant under S. 40, 41
or 42, and which has been proved by the
adverse party, was delivered by a Court
not competent to deliver it, or was
obtained by fraud or collusion."
Reading S. 40 with S. 44 it is evident
the under S. 40 the previous judgments
are relevant to bar a second suit or trial.,
In other words, the earlier judgment
operates as respondent judicata. That will
only be ordinarily between the same
parties, and if that is so then the said
judgment being relevant u/s 40 could be
challenged if it was proved by the adverse
party that the same was delivered by a
Court not competent to deliver it or was
obtained by fraud or collusion. It is only
u/ss. 41 and 42 of the Act when the
judgment is relevant that even a third
party can show that the same was
delivered by a Court not competent to
deliver it or that it was obtained by a
fraud or collusion. Even the judgments
relied on by the learned counsel for the
appellant do not support his contention. In
Laxmi Narian Goddodia's case (supra) it
was held that S. 44 is the only provision
of law under which a judgment or an
order or a decree which is sought to be
proved with a view to establish the plea of
respondent judicata can be avoided.
similarly, in Tribeni Mishra v. Rampuijan
Mishra. AIR 1970 Patna 13. it was held
that the right as given by S. 44. Evidence
Act has not been fettered by any
limitation whatsoever and it is manifest
that such a right is quite independent of
the right to get a judgment or a decree.
etc., set aside by bringing a regular suit
for the purpose. A decree or an order can
be challenged on ground of fraud in a
collateral proceeding without any suit for
setting aside the decree irrespective of the
time when the judgment was delivered or
the order of the decree was passed.
Similarly, in Mt. Parbati's case (supra) it
was held that the meaning of S. 44 of the
Evidence Act is that if collusion is proved
between the parties to previous suit then
the judgment in that suit which is relevant
u/s 40 cannot act as a bar. Thus, the
contention that no decree could be
challenged by a party to the suit
subsequently on the basis of fraud or
collusion cannot be accepted as such. The
authorities relied on by the learned
counsel for the appellant do not lay down
such a law and, in any case the same are
distinguishable on facts."
17. The Apex Court in Gram
Panchayat of Village Naulakha v. Ujagar
Singh: 2000 (7) SCC 543 relying upon
various decisions has been pleased to hold
as under in para 4, 5 & 6:-
"4. On this point, we have heard the
learned counsel for the respondents who
contended that the principle laid down by
the Full Bench in Jagar Ram's case is
correct and that the earlier judgment in
the present case is binding on the basis of
the
principle
of
res judicata. The
panchayat cannot therefore raise a plea of
collusion in the latter proceeding unless it
has first filed a suit and obtained a
declaration or unless it took steps to have
the earlier decree set aside.
5. We may state that the view taken
by the Full Bench of the Punjab &
Haryana High Court in Jagar Ram's case
is not correct and in fact, it runs contrary
to the provisions of section 44 of the
Indian
Evidence
Act.
That
section
provides that: Any party to a suit or
proceeding may show that any judgment,
order or decree which is relevant under
sections 40, 41, 42 and which has been
delivered by a Court not competent to
1 All] Kishan Lal Barwa Vs. Sharda Saharan & Anr.
229
deliver it or was obtained by fraud or
collusion. (Section 40 refers to the
relevances of previous judgments which
are pleaded as a bar to a second suit or
trial and obviously concerns section 11
CPC).
6. It appears from commentary in
Sarkar's Evidence Act (13th Ed., reprint)
(at p. 509) on section 44 that it is the view
of
the
Allahabad,
Calcutta,
Patna,
Bombay High Courts that before such a
contention is raised in the latter suit or
proceeding, it is not necessary to file an
independent suit. The passage from
Sarkar's Evidence which refers to various
decisions reads as follows:
"Under Section 44 a party can, in a
collateral proceeding in which fraud may
be set up as a defence, show that a decree
or order obtained by the opposite party
against him was passed by a court without
jurisdiction or was obtained by fraud or
collusion and is not necessary to bring an
independent suit for setting it aside, Bansi
v. Dhapo, ILR 24, All 242; Rajib v.
Lakhan, ILR 17 Cal. 11; Parbati v. Gajraj,
AIR (1937) All. 28; Prayag v. Siva, AIR
1926 Cal. 1; Hare Krishna v. Umesh, AIR
(1921) Pat. 193; Aswini v. Banamali, 21
CWN 594; Manchharam v. Kalidas, ILR
19 Bom. 821; Ranganath v. Govind, ILR
28
Bom.
639;
Kamiruddin
v.
Jhadejanessa, AIR (1929) Cal. 685;
Bhagwandas v. Patel & Co., AIR (1940)
Bom. 131; Bishunath v.