2019 (2) TMI 2015 - HC - GST

Recall/revision of judgement - possession of suit property - suit was barred under the previsions of the Small Causes Court Act or not - mis-joinder of parties - HELD THAT - Both the courts below have ruled against the defendant/petitioner and had held that the trial court had jurisdiction to entertain and decide the suit. The executing court does not sit in appeal over the findings recorded by the trial court or the appellate court as the case may be. The executing court cannot go behind the decree when the issue was specifically framed regarding the jurisdiction 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 - there are no 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. 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.

Summary

Issues Involved:
1. Jurisdiction of the trial court.
2. Allegation of fraud in obtaining the judgment and decree.
3. Applicability of U.P. Act No.13 of 1972.
4. Amendment of the plaint without court order.

Detailed Analysis:

Jurisdiction of the Trial Court:
The petitioner challenged the jurisdiction of the trial court in the execution proceedings, arguing that the decree was a nullity due to lack of jurisdiction. It was contended that the trial court’s judgment and decree were void as the court lacked jurisdiction over the subject matter. The trial court had framed issues regarding its jurisdiction (issues no.8 and 9), which were decided against the defendant. The appellate court also upheld these findings. The executing court ruled that it could not question the trial court's jurisdiction, as the issue had been conclusively determined by both the trial and appellate courts. The judgment referenced the principle that a decree passed by a court without jurisdiction is a nullity and can be challenged at any stage, including execution, as established in *Kiran Singh and others vs. Chaman Paswan and others*.

Allegation of Fraud:
The petitioner claimed that the judgment and decree were obtained by fraud, as the plaint was amended without the trial court's permission. The petitioner relied on precedents such as *United India Insurance Company Limited vs. Rajendra Singh and others* and *S.P. Chengalvaraya Naidu v. Jagannath*, which held that judgments obtained by fraud are nullities. However, the court found no evidence of fraud, noting that the petitioner had participated in the proceedings and had not raised this objection earlier. The court concluded that there was no material to support the claim of fraud.

Applicability of U.P. Act No.13 of 1972:
The petitioner argued that the suit property was over sixty years old, making the provisions of U.P. Act No.13 of 1972 inapplicable. This argument was part of the broader jurisdictional challenge. However, the trial court and the appellate court had already addressed and rejected this issue, determining that the trial court had jurisdiction to hear the case.

Amendment of the Plaint Without Court Order:
The petitioner alleged that the plaint was amended without an order from the trial court, constituting fraud. The court found this argument unsubstantiated, noting that the petitioner had contested the amendment during the trial and had not raised this issue at the appropriate time. The court emphasized that the executing court cannot re-examine issues already decided by the trial and appellate courts.

Conclusion:
The court dismissed the writ petition, affirming that the executing court cannot go behind the decree or re-evaluate issues already decided by competent courts. The objections under Section 47 C.P.C. were correctly rejected by the executing court and the revisional court. The judgment reinforced the principle that a decree, even if erroneous, remains binding unless set aside through appropriate legal proceedings.