Final Order 10

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. GOMATI MANOCHA,
DISTRICT JUDGE-02, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
RCA DJ 18/24
CNR No. DLNE01-002249-2024
In the matter of:
Shri Yamin Khan
S/o Shri Najrul Khan
R/o House no. 2, Gali no. 1, Block C,
near RV Convent Public School,
Rajiv Nagar, Mandoli, Delhi-110093.
Also at:
Kasba Pataspur,
P.S. Pataspur, Purba,
Medinipur, West Bengal.
..…Appellant
Versus
(1) Smt. Amina
W/o Late Shri Jamil
R/o H. No. 279, Gali no. 4,
Out of Khasra no. 110/2, Khatoni No. 37,
Village Khajoori, Shri Ram Colony, Rajiv Nagar,
Chatai Wali Masjid, Shahdara, Delhi-110094.
(2) Smt. Sandhya Aggarwal,
W/o Shri Rakesh Kumar,
R/o 137, Gali no. 3, B-Block,
Main 20 ft. Road, Sri Ram Colony,
Rajiv Nagar, Khajoori, Delhi-110094.
.… Respondents
Date of Institution : 07.09.2024
Date of Final Arguments : 23.12.2025
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Date of Judgment : 23.12.2025
Final Decision : Allowed
Judgment-in-Appeal
1. Arguments heard on the appeal filed, challenging the
judgment dated 04.06.2024, passed by the court of Ld. SCJ-cum-
RC, North-East District, Karkardooma Courts, Delhi in suit no.
28/21 titled as Yamin Khan vs. Smt. Amina & Anr. vide which, the
suit of the plaintiff was dismissed.
2. It is stated that the plaintiff had filed suit for declaration,
recovery of rent, mesne profits/damages, possession and permanent
injunction on 12.01.2021. It is stated that the plaintiff is the lawful
and absolute owner of the property bearing no. 279, Gali no. 4, out
of Khasra no. 110/2, Khatoni no. 37, measuring 35 sq. yards,
situated at village Khajoori, in the abadi of Sri Ram Colony, Rajiv
Nagar, Chatai Wali Masjid, Illaqa Shahdara, Delhi. The suit property
was purchased by plaintiff from the previous owner namely Smt.
Rukhsana vide GPA, Agreement to Sell, Receipt, all dated
25.06.1997. Sh. Jamil S/o Sh. Abdullah was inducted as a tenant in
the suit property in the year 2000 and the rate of rent was agreed to
be Rs. 350/- per month, excluding other charges. Sh. Jamil was the
husband of defendant no. 1. It has been admitted by defendant no. 1
that her husband was inducted as a tenant in the suit property by the
plaintiff before the court of Ld. SCJ-cum-RC, North-East,
Karkardooma Courts, Delhi in CS no. 312/2019 titled as Sandhya
Aggarwal vs. Amina. The plaintiff shifted to Calcutta in the month
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of November, 2000 with his family members and used to visit Delhi
from time to time to collect rent. In the month of September, 2019,
the said tenant expired. Defendant no. 1 told the plaintiff that her
husband has expired, leaving her behind as a sole legal heir.
Defendant no. 1 did not disclose the name of other legal heirs of
Late Sh. Jamil and his date of death. Defendant no. 1 also stated that
one Smt. Sandhya Aggarwal/defendant no. 2 is claiming ownership
in respect of the suit property. Defendant no. 1 also told the plaintiff
that defendant no. 2 has filed the case against defendant no. 1 which
is pending before a Civil Court. The plaintiff came to know that the
defendant no. 2 has filed a civil suit for possession, damages/mesne
profit and permanent injunction against defendant no. 1 in respect of
the suit property. It is stated that the judgment and decree dated
04.06.2019, has been obtained by playing fraud upon the court and
is collusive in nature. The plaintiff also came to know that defendant
no. 2 has filed the execution petition for execution of judgment and
decree dated 04.06.2019. Hence, the plaintiff filed the objection in
the execution proceedings for stay of the execution of judgment and
decree dated 04.06.2019. The plaintiff had also moved an
application under Order I Rule 10 r/w section 151 C.P.C. seeking
impleadment as plaintiff no. 2, being the owner of the suit property.
Both these applications of the plaintiff were dismissed. It is stated
that the defendant no. 2 has taken over the possession of the suit
property from the defendant no. 1 on 19.01.2021 and the execution
petition of the defendant no. 2 has been satisfied and disposed of
vide order dated 29.01.2021. The plaintiff visited the area where the
suit property is situated and came to know that defendant no. 2 has
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raised construction over the suit property uptil fourth floor.
3. The plaintiff has challenged the judgment dated 04.06.2024 in
view of the findings of the court of Ld. SCJ-cum-RC, North-East
District, Karkardooma Courts, Delhi in the execution proceedings. It
is submitted that the Ld. Trial Court has also failed to consider the
GPA, Agreement to Sell and Receipt, all dated 10.01.1989 in favour
of the plaintiff. Further, the Ld. Trial Court has erred in the
calculation of the court fees.
4. In the reply filed by respondent no. 2, it has been prayed that
the appeal may be dismissed as the appellant had not challenged the
orders dated 24.12.2020 in CS no. 312/2019 which have attained
finality. It is denied that the plaintiff is the owner of the property in
question. It is also denied that the judgment dated 04.06.2019 has
been obtained by playing fraud upon the court. Denying the rest of
the contents of the appeal, the respondent has sought dismissal of
the appeal.
5. Impugned judgment dated 04.06.2024 and the entire record
has been perused.
6. The question to be determined by the Appellate Court is that
if the objections under Order XXI Rule 101 C.P.C. have been
dismissed by an Executing Court and that order/decree has not been
challenged in appeal then, can a separate suit be filed by the
objector to determine his ownership or title over the suit property.
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Perusal of the record reveals that a suit was filed between one
Sandhya Aggarwal and Amina bearing no. 312/2019 where a decree
of possession and permanent injunction under Order XII Rule 6
C.P.C. was passed and the defendant was directed to handover the
vacant and peaceful physical possession of the tenant premises. The
defendant was also permanently restrained from creating any third
party interest in the tenanted premises. Thereafter, the appellant
filed objections before the Executing Court u/s 47, Order XX1 Rule
26 and 101 r/w section 151 of C.P.C. seeking stay of execution of
judgment and decree dated 04.06.2019. The objector filed the
objections stating that the DH has no right, title or interest in the suit
property. The objector claimed ownership over the suit property and
stated that judgment and decree dated 04.06.2019 was obtained by
playing fraud upon the court and that the same is collusive in nature.
The said objections were dismissed by the Executing court,
observing:
“the present objections have been moved by the
objector u/s 47, Order I Rule 26 and 101 C.P.C.
seeking stay of execution proceedings. Admittedly,
the objector has not filed any suit against the Decree
Holder and the JD herein challenging the decree of
possession passed in favour of the DH till date. It is
also not disputed that the objector has not
challenged the decree of recovery of money passed
in favour of the DH and against the JD vide order
dated 01.04.2015 that has been filed by the objector
herein, in the connected suit. No explanation has
been given by the objector for not challenging the
aforesaid decrees by filing fresh suit, seeking them to
be declared as null and void. Vide separate order in
the connected suit, the applicant has been declined
to be impleaded as party to the said suit. Order 21
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Rule 101 C.P.C. can only be invoked when the party
to the proceedings come under application under
Order XXI Rule 97 or 99 C.P.C. which is not the
case herein. The objector has merely sought stay of
execution whereas, no proceedings have been
initiated by him against the parties before the court
till date, hence the stay of execution as prayed by the
objector, cannot be granted. This court cannot go
beyond the decree and cannot decide the title of the
property in the present execution proceedings for
which, an appropriate separate legal recourse is
required to be adopted by the objector.… In view
of the observations given above, the objection stands
rejected.
7. The appellant had also filed an application under Order I Rule
10 r/w section 151 C.P.C. for his impleadment as plaintiff no. 2,
being the owner of the suit property. He had pleaded that the suit
filed by the plaintiff against the defendant was a collusive suit. He
had also claimed himself to be the owner of the suit property on the
basis of GPA, Agreement to Sell, Receipt dated 10.01.1989.
Dismissing the application under Order I Rule 10 C.P.C., the court
observed:
“The relief of possession and permanent injunction
as prayed in the suit has already been granted in
favour of the plaintiff and against the defendant by
the Ld. Predecessor of this court vide order dated
04.06.2019 under Order XII Rule 6 C.P.C. The
decree in the present suit has already been passed.
The only proceedings left before this court is qua
the enquiry under Order XX Rule 12 C.P.C. for
ascertaining the quantum of damages/mesne profits
for which, the applicant cannot be considered to be
necessary or proper party to be impleaded herein.
The applicant seeks to determine his title and the
relief of possession in his favour for which, he
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cannot come before the court under garb of order 1
Rule 10 C.P.C. rather the proper remedy available
with the applicant is now to challenge the said
decree. In view of the same, the application under
Order I Rule 10 C.P.C. itself is not
maintainable….Accordingly, same stands
dismissed.”
Immediately, thereafter the plaintiff filed the present suit
seeking declaration, recovery of rent/mesne profits/damages,
possession and permanent injunction against defendant no. 1 Smt.
Amina. He also impleaded Smt. Sandhya Aggarwal, the plaintiff in
CS No. 312/2019 as defendant no. 2 in the present case. The
present suit was dismissed by the Court stating that a separate suit is
barred under the provision of Order XXI Rule 101 C.P.C.
Order XXI Rule 101 C.P.C. provides as follows:
“Question to be determined.- All questions
(including questions relating to right, title or interest in
the property) arising between the parties to a
proceeding on an application under rule 97 or rule 99
or their representatives, and relevant to the adjudication
of the application, shall be determined by the Court
dealing with the application, and not by a separate suit
and for this purpose, the Court shall, notwithstanding
anything to the contrary contained in any other law for
the time being in force, be deemed to have jurisdiction
to decide such questions.”
It is trite that order XXI Rule 101 C.P.C.
specifically provides that all questions including
questions pertaining to right, title and interest in the
suit property which is the subject matter of an
execution proceeding, would have to be adjudicated
upon by the Executing Court and not by way of a
separate suit. The object behind order XXI Rule 101
C.P.C. is to prevent multiplicity of proceedings. Rule
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97 to 103 of order XXI C.P.C. provides remedy not
only to the parties to the suit but, also to a stranger to
the suit/proceedings.
8. In this case, when the appellant approached the Executing
Court and filed objections under Order XXI Rule 101 C.P.C., the
same were dismissed by the Executing Court and he was advised to
file a separate suit. Also, the application filed by him seeking
impleadment as a party, was dismissed. On bare perusal of the order
dismissing objections filed by the appellant, the same appears to be
erroneous. It is admitted that that the orders were not challenged by
the appellant and the same have attained finality.
9. For deciding an application under Order XXI Rule 97-101
C.P.C. the Court is required to adjudicate regarding right, title,
interest or possession of the parties/strangers to the suit. The same
bars the filing of a fresh suit on the ground that the matter regarding
right, title or interest has been adjudicated upon by the Executing
court and has been conclusively decided.
10. In this case, the plea of fraud was taken by the objector before
the Executing Court. That plea was also available to him by way of
filing of a fresh suit. The bar on filing of a fresh suit, if the
objections have been decided under Order XXI Rule 101 C.P.C.
would apply only if the matter directly and substantially in issue has
been heard and finally decided on merits and the rights of the parties
have been conclusively decided. The decision can be said to be
conclusive only if the Court has applied its mind to the merits of the
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objections, opportunity is given to the objector to lead evidence and
a clear finding is recorded on the right, title or interest of the parties.
In this case, the objections were dismissed on a technical ground
and the same were not adjudicated on merits.
11. The proper approach should have been to challenge the order
dismissing the objections. The same was not done in this case. The
allegations made by the appellant are that the decree in question was
obtained by fraud and was a collusive decree. It is settled law that
fraud vitiates judicial proceedings. In AV Papayya Sastry Vs.
Govt. of A.P. (2007) it was observed that if any judgment or order is
obtained by fraud, it cannot be said to be a judgment or order in law.
Before three centuries, Chief Justice Edward Coke proclaimed;
"Fraud avoids all judicial acts, ecclesiastical or
temporal". It is thus settled proposition of law that a
judgment, decree or order obtained by playing fraud on
the Court, Tribunal or Authority is a nullity and non est in
the eyes of law. Such a judgment, decree or order by the
first Court or by the final Court has to be treated as nullity
by every Court, superior or inferior. It can be challenged
in any Court, at any time, in appeal, revision, writ or even
in collateral proceedings. In the leading case of Lazarus
Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1
QB 702 : (1956) 2 WLR 502, Lord Denning observed:
"No judgment of a court, no order of a Minister, can
be allowed to stand, if it has been obtained by fraud."
In Duchess of Kingstone, Smith's Leading Cases,
13th Edn., p.644, explaining the nature of fraud, de Grey,
C.J. stated that though a judgment would be res judicata
and not impeachable from within, it might be impeachable
from without. In other words, though it is not permissible
to show that the court was 'mistaken', it might be shown
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that it was 'misled'. There is an essential distinction
between mistake and trickery. The clear implication of the
distinction is that an action to set aside a judgment cannot
be brought on the ground that it has been decided
wrongly, namely, that on the merits, the decision was one
which should not have been rendered, but it can be set
aside, if the court was imposed upon or tricked into giving
the judgment. It has been said; Fraud and justice never
dwell together (fraus et jus nunquam cohabitant); or fraud
and deceit ought to benefit none (fraus et dolus nemini
patrocinari debent).
Fraud may be defined as an act of deliberate
deception with the design of securing some unfair or
undeserved benefit by taking undue advantage of another.
In fraud one gains at the loss of another. Even most
solemn proceedings stand vitiated if they are actuated by
fraud. Fraud is thus an extrinsic collateral act which
vitiates all judicial acts, whether in rem or in personam.
The principle of 'finality of litigation' cannot be stretched
to the extent of an absurdity that it can be utilized as an
engine of oppression by dishonest and fraudulent litigants.
In S.P. Chengalvaraya Naidu (dead) by LRs. V.
Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 : JT
1994 (6) SC 331, it was held
"The courts of law are meant for imparting justice
between the parties. One who comes to the court, must
come with clean-hands. We are constrained to say that
more often than not, process of the court is being abused.
Property-grabbers, tax- evaders, bank-loan- dodgers and
other unscrupulous persons from all walks of life find the
court - process a convenient lever to retain the illegal-
gains indefinitely. We have no hesitation to say that a
person, who's case is based on falsehood, has no right to
approach the court. He can be summarily thrown out at
any stage of the litigation".
The Court proceeded to state: "A litigant, who
approaches the court, is bound to produce all the
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documents executed by him which are relevant to the
litigation. If he withholds a vital document in order to
gain advantage on the other side then he would he guilty
of playing fraud on the court as well as on the opposite
party".
The Court concluded: "The principle of 'finality of
litigation' cannot be pressed to the extent of such an
absurdity that it becomes an engine of fraud in the hands
of dishonest litigants".
In Indian Bank v. Satyam Fibres (India) Pvt. Ltd.,
(1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to
Lazarus Estates and Smith v. East Elloe Rural District
Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2
WLR 888, the Hon’ble Supreme Court observed;
"The judiciary in India also possesses inherent
power, specially under Section 151 C.P.C., to recall its
judgment or order if it is obtained by Fraud on Court. In
the case of fraud on a party to the suit or proceedings, the
Court may direct the affected party to file a separate suit
for setting aside the Decree obtained by fraud. Inherent
powers are powers which are resident in all courts,
especially of superior jurisdiction. These powers spring
not from legislation but from the nature and the
Constitution of the Tribunals or Courts themselves so as
to enable them to maintain their dignity, secure obedience
to its process and rules, protect its officers from indignity
and wrong and to punish unseemly behaviour. This power
is necessary for the orderly administration of the Court's
business".
12. In this case, the appellant has alleged fraud. If a decree is
obtained by playing fraud or is a collusive decree then the same is a
nullity in the eyes of law. The question as to whether a decree is a
nullity or not is generally not a question relating to execution,
discharge or satisfaction of a decree. It goes to the very root of the
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decree and is a matter which the Executing Court cannot ordinarily
decide because Executing Court cannot go behind the decree when
there is an executable decree (Mahabir Vs. Narain AIR 1931
Allahabad 490 (FB) and A. Venkataseshayya Vs. A. Virayya AIR
1958 Andh Pra 1FB).
13. In this case, the plea of fraud was expressly taken by the
plaintiff/appellant in the present suit. He had clearly stated that the
judgment and decree dated 04.06.2019 is collusive in nature and
obtained by fraud and therefore, null and void in the eyes of law.
Hence, filing of fresh suit was not barred. In view of the above, the
appeal is hereby allowed.
14. Copy of this judgment as well as TCR be sent back to the
concerned Court for fresh adjudication as per law.
15. Appeal file be consigned to the Record Room.
16. Parties to appear before the Trial Court on 23.01.2026.
(Gomati Manocha)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Dictated and announced in open court
today i.e. 23rd December, 2025
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