TMI Blog2019 (2) TMI 2015X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction and, therefore, it cannot be executed. The second ground that the judgement and decree was passed on the amended plaint which was amended without leave of the court, has no force. The petitioner has filed objection to the amendment application and there is no material on record on the basis of which it can be said that some fraud was played with the trial court and the judgement and decree was obtained as an act of fraud - there are no substance even in the second ground and it is held that the executing court and the revisional court have correctly decided the issue and rightly rejected the objection of the petitioner under Section 47 C.P.C. Petition dismissed. - MISC. SINGLE No. - 3458 of 2019 - - - Dated:- 5-2-2019 - Hon'ble Dinesh Kumar Singh, J. Counsel for Petitioner :- Ravi Shanker Shukla,Ajai Kumar Tiwari Counsel for Respondent :- Adnan Ahmad ORDER Hon'ble Dinesh Kumar Singh, J. 1. The present writ petition under Article 227 of the Constitution of India has been filed to set aside the order dated 1.1.2019 passed by the IInd Additional District Judge/Special Judge (SC/ST) Act, Lucknow in Civil Revision No.84 of 2017 file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court had rightly rejected that. 3. Learned counsel for the petitioner submits that if a judgement and decree obtained by fraud or has been passed by a court which lacks jurisdiction, would be a nullity and the objection regarding the judgement and decree being a nullity, can be taken at any stage including at the time of execution. He further submits that the suit property is of sixty years old, therefore, the provisions of U.P. Act No.13 of 1972 were not applicable and the judgement and decree passed by the trial court, which did not have the jurisdiction, was a nullity. He also submits that the amendment in the plaint was carried out by the plaintiff without there being any order passed by the trial court and, therefore, the judgement and decree which was obtained by the plaintiff was result of fraud by the plaintiff, therefore, it is a nullity. 4. In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kiran Singh and others vs. Chaman Paswan and others, AIR 1954 SC 340. He has placed reliance on paragraph six of the aforesaid judgement, which reads as under:- 6. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. 6. The third case relied upon by the learned counsel for the petitioner is C. Gangacharan v. C. Narayanan, AIR 2000 SC 589. In paragraph four of the aforesaid judgement, Hon'ble supreme Court held as under :- 4. It is now well settled that the executing court cannot go behind the decree of a court of competent jurisdiction except when the decree is void ab initio or without jurisdiction. In the present case, the High Court on 27-8-1987, as is evident from the passage quoted hereinabove, had given a categorical finding to the effect that the respondent herein was only a trustee and the case was governed by Section 82 of the Indian Trusts Act. Section 4 which contains the prohibition to recover the property held benami expressly provides in sub-section (3), clause (b) that the said section is not to apply, inter alia, in a case where the property is held in the name of a trustee. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or over the parties to it. 8. On the other hand, learned counsel for the respondents/decree holders has argued that two issues were framed with respect to the jurisdiction before the trial court as issues no.8 and 9, which read as under :- Whether the suit was barred under the provisions of Small Causes Court Act; and Whether the trial court has jurisdiction to entertain and decide the suit. 9. Both these issues were decided against the defendant. The first appellate court while deciding the appeal had also framed three issues, which read as under :- 1. Whether the plaintiff was entitled for possession of the suit property; and 2. Whether the suit was barred under the previsions of the Small Causes Court Act; and 3. Whether there was mis-joinder of parties. 10. All these issues were decided against the defendant. 11. Learned counsel for the respondents submits that it is well settled that the executing court can neither go behind the decree no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rehman, (1970) 1 SCC 670 : AIR 1970 SC 1475 : (1971) 1 SCR 66] in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: A Court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction and it got decided against the defendant. The defendant cannot be permitted to take the very same ground in execution proceedings by filing an application under Section 47 C.P.C. to contend that the trial court did not have jurisdiction to entertain the suit and, therefore, the decree passed by the trial court was without jurisdiction and the same cannot be executed. After the issue was framed and the parties lead their evidence and argued the matter and got decided by the trial court and the first appellate court, the executing court is not expected to decide the same issue again while executing the decree in objection filed under Section 47 C.P.C. Thus, I do not find any substance in the submission of learned counsel for the petitioner/judgment debtor that the decree passed by the trial court was without jurisdiction and, therefore, it cannot be executed. 15. The second ground that the judgement and decree was passed on the amended plaint which was amended without leave of the court, has no force. The petitioner has filed objection to the amendment application and there is no material on record on the basis of which it can be said that some fraud was played with the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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