Execution court does not have power to evaluate or examine or set aside the stated decree. A declaratory suit is required to be filed.
Powers of EC under settled Law of SC
The suit of specific performance was filed. Decreed in favour of Plaintiff. Aggrieved Defendant filed first Appeal. The Appellant behind the back of Respondent (I am not focusing on How it happened being history is lengthy) obtained an Award in Lok Adalat by handshaking with imposter, who pretended as if he was Respondent in Appeal, before Panel of Lok Adalat. For that reason a joint pursis was filed in LA mentioning therein that (in short) the Respondent (Imposter) has no interest in Original Suit and decree, therefore both be set aside and Quashed. The Panel of LA unfortunately did not verify the cause title in Appeal Memo, relying upon the statement of Advocates, accepted the pursis thereby passed the Award and set aside / Quashed the Suit and decree. Now two points are to be considered 1 ) Behind the back 2) Practiced fraud on Court The Appellant filed an application under Sec. 47 CPC that the EP filed by DH does not have executable force, in view of the Award passed by LA, in which the suit and decree is disposed of. DH filed his say stating that "the said Award is a result of Fraud which is Practiced on Lok Adalat, therefore it is null and void". The fraud easily traceable on the face of record, from the cause title in Appeal Memo and in Award. IN reply to DH's objection, JD (Appellant) argued before EC that "The Award of LA is a deemed decree of Court by which the Org suit and decree is defunct. Even if assumed that Award is obtained by practicing fraud on Court, then also this EC has no power to determine about fraudulent Award and DH has to get Award set aside by higher Courts DH now wants to file a below Judgment of Supreme Court of India given in the matter of S.P. Chengalvaraya Naidu (Dead) ... vs Jagannath (Dead) By L.Rs. And ... on 27 October, 1993 Bench: K Singh, P Sawant. Applicable Paragraph is copied and paste here for reference. ORDER Kuldip Singh, J. 1. "Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenge. The above settled Law, will help me to mention in my Argument that EC has power to determine whether the Award is obtained by practicing fraud on Court which is apparently seen on the face of Record. The fraud is easily traceable from Cause Title.
Asked 1 year ago in Civil Law
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10 Answers
- It is a well-settled law , that a Court executing a decree cannot go behind the decree, and it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.
- Further, this Court has no power to vary or modify the terms , and to question its legality or correctness.
- Hence, the executing court is bound to execute the decree , and the said decree has been obtained by playing fraud ,then the JD should approach the Higher court for challenging the validity of the decree.
In Ganpatbhai Mahijibhai Solanki v.(2008) 3 SCC 556, this Court held: "It is now a well settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same."
2)Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
Telling the DH to go and file a separate suit to set aside the LA award obtained by fraud by JD with the imposter Plaintiff, amounts to multiplicity of litigation
Courts are against multiplying litigation and work to end the litigation
The s. 47 EC court has wide powers to go into the aspect whether or not the decree is executable. So to determine that question it can also return a finding as regards the LA award being fraudulent or not. The LA award relates to a dispute raised in the execution proceedings and nothing stops the execution court from deciding that
As the LA award was obtained fraudulently it is non est in the eyes of law and does not affect the decree at all and as per the dictum of the SC such a fraud vitiates all acts, ecclesiastical as well as temporal or even a judicial act. In your case fraud was practiced on the LA and the award was obtained.
The JD cannot bypass the procedure of filing an appeal by securing a fraudulent LA award. Though the JD had filed the appeal but that appeal was not decided on merits and was referred to the lok adalat where it came to be disposed of by virtue of the fraudulent LA award. So the court never got an opportunity to apply its mind as regards the grounds of challenge raised in the appeal. The JD cannot bypass that and now rely on the LA award to contend that the decree is not executable
My question is limited to below Whether EC can take cognisance of fraud played on Court to obtain the order /decree / award , in view of judgment of SC (relevant paragraph was copied and pasted) cited in my query. If that ratio matches , it will save my time to knock the doors of Higer Court.
Asked 1 year ago
You have to apply to Lok adalat to recall its order on grounds of fraud played by the parties
in alternative approach HC for necessary reliefs
- No, EC cannot take cognisance of fraud played , except to stay the execution after getting direction from the higher court
The award of Lok Adalat cannot be reversed or set aside without setting aside the facts recorded in such award as fraudulent arrived at. The Supreme Court further observed that if the signatures of the Plaintiff.
It is settled law that executing court cannot go beyond the decree. it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit”. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process
of giving effect to the decree.
However in yor case, if the executing court is taking any decision against your petition, then you may prefer an appeal against the lok adalat decree stating that the opponent played fraud hence the same is null and void and the same court has powers to rectify the decree due to the fraud played on it.
In your case it has been established that the JD has played fraud on Lok adalat through an person impersonating you before lok adalat.
As the Lok adalat award was obtained fraudulently it is non est in the eyes of law and does not affect the decree at all and as per the dictum of the SC such a fraud vitiates all acts, ecclesiastical as well as temporal or even a judicial act.
If the decree is said to be ambiguous, then it is the duty of the executing court to construe the decree.
For the purpose of interpreting a decree, when its terms are ambiguous, the court would certainly be entitled to look into the pleadings and the judgment.
No doubt, the court cannot go behind the decree or beyond the decree. But while executing a decree for specific performance, the court, in case of any ambiguity, has necessarily to construe the decree so as to give effect to the intention of the parties.
It is undeniable that an Executing Court can construe a decree if it is ambiguous.
The Gauhati High Court on February 1, 2022 observed that a settlement award given by a Lok Adalat can be deemed as a decree of a Civil Court and that such an award can be challenged under Articles 226 or 227 of the Indian Constitution before a High Court.
Hence if the appellate court is not reversing the lok adalat decree for the reasons you rely upon, then yo can prefer a writ petition before high court
Yes it can
Yes etc can do the same
