GOURIAMMA Vs. YOHANNAN LUCKOSE

JUDGEMENT

(1.) The substantial question of law framed for a decision is:

(2.) Short facts necessary for a decision of the question are: Respondent No. l instituted O.S. No. l09 of l981 on 18.12.1981, according to him against respondent No. 2 for recovery of money. That resulted in Ext.A1, compromise decree dated 03.01.1982. Respondent No. 1 initiated execution proceeding and on 02.03.1982 the suit property was attached for realisation of the amount due to respondent No. l. On 11.07.1983 appellants and two others filed E.A. No. 118 of 1983 in the executing court under Order XXI Rule 58 of the Code claiming right over the property attached and contending that the said property is not liable to be proceeded against for the debt allegedly due under the decree from respondent No. 2. According to the appellants and others property attached belonged to their family and as per Ext.A3, compromise petition dated 05.04.1982 followed by Ext.A2, compromise decree dated 26.05.1982 in O.S. No. 175 of 1981 right of respondent No. 2 (judgment judgement debtor in O.S. No. 175 of 1981) in the property was released in their favour. Respondent No. 1 preferred objection to the claim petition. Executing court conducted an enquiry into the claim and dismissed the same holding that respondent No. 2 had right over the property on the date of attachment and hence the compromise decree in O.S. No. 175 of 1981 has to yield to the attachment. Appellants and others preferred A.S. No. 3 of 1986 in the District Court, Kollam, As per judgment dated 31.07.1987 the appeal was allowed and the claim petition was remanded to the executing court for fresh disposal after considering the question whether respondent No. 2 had any right in the property attached. After the case came back to the executing court by way of remand appellants and others filed E.A. No. 264 of 1988 on 01.02.1988 seeking amendment of the claim petition to incorporate a plea that the decree in O.S. No. 109 of 1981 was obtained fraudulently and by misrepresentation in that the real judgment debtor was respondent No. 3 but when the compromise petition was prepared respondent No. 3 gave his name in such a way as to make it appear that defendant in that suit is respondent No. 2 to facilitate respondent No. 1 proceed against property of family of appellants, respondent No. 2 and others and hence the decree and proceeding in execution are vitiated. E.A. No. 264 of 1998 was dismissed. The claim petition (E.A. No. 118 of 1983) was dismissed on 19.03.1993 for non-prosecution. Thereafter appellant No. 3/defendant No. 3 filed E.A. No. 289 of 1993 in O.S. No. 109 of 1981 also under Order XXI Rule 58 of the Code in the same court claiming that suit property was not liable to be attached. That application was dismissed on 27.11.1993 since E.A. No. 118 of 1983 was dismissed for default. Appellant No. 3 challenged dismissal of E.A. No. 289 of 1993 in the court of learned District Judge, Kollam in A.S. No. 5 of 1994. That appeal was dismissed on 13.08.1996. Appellant No. 3 tried his luck by filing E.S.A. No. 2 of 1997 in this Court. That appeal also ended in dismissal. In the meantime suit property was sold in court auction in execution of the decree in O.S. No. 109 of 1981. The property was purchased by petitioner in I.A. No. 1439 of 2005 (for impleadment in this appeal). I am told that she has remitted the purchase price in the executing court). In the meantime appellants filed the present suit (O.S. No. 184 of 1993) on 27.09.1993 alleging inter alia that the compromise decree in O.S. No. 109 of 1981 is obtained by fraud and collusion between respondent Nos. 1 to 3 and hence it is ab initio void. Appellant prayed for a declaration that the real judgment debtor is respondent No. 3 and not respondent No. 2, they are different persons, property attached and sold belonged to the family of appellants and respondent No. 2, the attachment and sale in execution of the decree in O.S. No. 109 of 1981 are void and for a decree of injunction restraining respondent No. 1 from executing the decree. Respondent Nos. 2 and 3 remained ex parte. Respondent No. 1, decree holder in O.S. No. 109 of 1981 denied the allegation of fraud and collusion and stated that his transaction was with respondent No. 2/defendant No. 2 though in the compromise petition respondent No. 2 happened to write his pet name also on the basis of which allegation of fraud and impersonation are made by the appellants. It is the contention of respondent No. 1 that respondent Nos. 2 and 3 is the same person and that the property attached (and later sold) belonged to respondent No. 2, the judgment debtor. He challenged maintainability of the suit in view of the dismissal of the claim petition though without adjudication. Trial court was of the view that suit is not maintainable in view of bar under Order XXI Rule 58(4) of the Code as the claim petition was dismissed. Accordingly the suit was dismissed. First Appellate Court observed that there is no proper plea of fraud in the plaint and agreed with the trial court that suit is not maintainable. Hence this Appeal. Learned Counsel for appellants/plaintiffs contended that first appellate court was under a wrong impression that there was no plea of fraud in the plaint which is not factually correct. According to the learned Counsel when the decree is vitiated by fraud it is a nullity and cannot be enforced. It is also the argument of learned Counsel that as defined in Section 2(2) of the Code a decree is the formal expression of an adjudication which conclusively determines rights of the parties and what is contemplated is not a decree which is vitiated by fraud and collusion and non-existent in the eye of law. Learned Counsel contends that courts below went wrong in holding that the suit where challenge is to the void nature of the decree and its consequent execution on the ground of fraud, is not maintainable under Order XXI Rule 58(4) of the Code. Learned Counsel has placed reliance on the decisions in Him Lal v. Kali Nath, 1962 AIR(SC) 199, Bhavan Vaja v. Solanki Hanuji, 1972 AIR(SC) 1371, S.P. Chengalvaraya Naidu v. Jaganuath, 1994 AIR(SC) 853; Gnan Das v. Paulin Moraes,1998 2 KerLT 88, United India Insurance Co. Ltd v. Rajendra Singh, 2000 AIR(SC) 1165, and Narain Prasad Aggarwal v. State of M.P., 2007 AIR(SC) 2349. Learned Counsel for respondent No. I/defendant No. 1 would assert that no question of fraud or collusion is involved or proved in obtaining the decree in O.S. No. 109 of 1981, that was a suit between respondent Nos. 1 and 2 though respondent No. 2 described by him by his pet name also while the compromise petition was drafted. Learned Counsel points out that when appellant and others filed the claim petition (E.A. No. 118 of 1983) it was their specific case that the decree in O.S. No. 109 of 1981 was against respondent No. 2. Learned Counsel also contended that respondent No. 2/defendant No. 2 had right in the suit property on the date of attachment and even as per the version of appellants compromise and consequent decree in O.S. No. 175 of 1981 was brought about only after the property was attached in execution of the decree in O.S. No. 109 of 1981 and hence that compromise and the decree should yield to the attachment and subsequent sale of the property in O.S. No. 109 of 1981. Learned Counsel maintained that the suit is not maintainable in view of the bar under Order XXI Rule 58(2) and (4) of the Code. Learned Counsel for petitioner in I.A. No. 1439 of 2005, the auction purchaser while supplementing the contentions raised by counsel for respondent No. 1 would further contend that as she is a bonafide purchaser in court auction the court sale should stand even if the decree in O.S. No. 109 of 1981 is found to be vitiated for any reason. Reliance is placed on the decision in Janak Raj v. Gurdial Singh, 1967 AIR(SC) 608 . Learned Counsel requested that since the auction purchaser is a necessary party she may be impleaded as additional respondent No. 4 in the Second Appeal.

(3.) In LA. No. 1439 of 2005 petitioner is the auction purchaser who purchased the property in court auction in execution of the decree in O.S. No. 109 of 1981 which decree and execution proceeding are under challenge in the present suit. I am persuaded to think that for an effective adjudication of the dispute involved, her presence is required. Accordingly I.A. No. 1439 of 2005 is allowed and the petitioner therein is impleaded as additional respondent No. 4 in the appeal (Registry shall carry out impleadment in the cause title of the appeal memorandum).