TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 2015
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....g no.140 of 2011 in the court of Additional District Judge, Court No.17, Lucknow, which too was dismissed vide judgement and order dated 19.3.2016. After the judgement and decree, the decree holder has filed Execution Case No.10 of 2011. The petitioner has filed Second Appeal No.260 of 2016 before this Court along with an application for condonation of delay. In the execution case, the judgement debtor has filed an objection under Section 47 C.P.C., which was numbered as 245 of 2016. The executing Court vide order dated 31.5.2017 had rejected the aforesaid objection on the ground that the executing court does not have power to go behind the decree and in respect of the question of jurisdiction of the trial court, a specific issue was framed before the trial court as well as before the appellate court and both the courts below have held that the trial court had jurisdiction to hear and decide the suit. It is further held that the second ground that the trial court had passed the judgement and decree on the amended plaint. However, there was no order passed by the trial court to amend the plaint. This ground cannot be looked into at the stage of execution and, therefore, the trial co....
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....is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position." 5. The second judgement relied upon by the learned counsel for the petitioner is United India Insurance Company Limited vs. Rajendra Singh and others, (2000) 3 SCC 581. In paragraphs 13 and 14 of the aforesaid judgement, it has been held as under :- "13. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] the two-Judge Bench of this Court held: " ''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 an....
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....d judgement read as under :- "8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. 9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed there....
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....ion was never raised at any point of time and it is wholly incorrect to contend that the plaint was amended without the leave of the court. 12. In support of his contentions, learned counsel for the respondents has placed reliance upon the judgment of the Hon'ble Supreme Court rendered in the case of Brakewel Automotive Components (India) Pvt. Ltd. vs. P.R. Selvam Alagappan, AIR 2017 SC 1577. In paragraphs 19 to 22, it has been held as under :- "19. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well to render the decree unexecutable. 20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not con....
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....i Prakash University, (2001) 6 SCC 534 : AIR 2001 SC 2552] , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view." 13. I have considered the submissions of parties carefully and also perused the impugned judgement as well as the judgements relied upon by the counsel representing the parties. 14. From the judgement and decree passed....