PRAKASH CHAND Vs. RAM SAHAI AND ORS.

JUDGEMENT

(1.) This application styled as misc. application has been filed on 3.4.2015 by the petitioners with the prayer that respondent Nos. 3, 4, 6, 7 & 8 be punished for committing contempt of this Court and be directed to restore the original position of the shop No. 174 situated in Tripolia Bazar, Jaipur as it existed at the time of passing of the order dated 17.8.1982 and 23.9.1982 by this Court in S.B. Civil First Appeal No. 12/1982 and cancel the registered sale deed dated 22.2.2002 in favour of Shanti Devi, Tehal Singh and Mahendra Singh. Further prayer is that respondent No. 7 Kamal Kishore be prosecuted for filing a false and wrong reply along with affidavit in the contempt petition No. 259/1983, which led to his exoneration in the contempt petition. Dharam Singh must be prosecuted for filing false additional affidavit dated 19.5.1984 in contempt petition No. 259/1983, which helped respondent Nos. 3, 4, 6, 7 & 8 in getting exonerated from contempt proceedings.

(2.) Shri Vimal Choudhary, learned counsel for the applicants -petitioners has argued that petitioner Prakash Chand (since deceased) and Ashok Kumar filed a suit for partition, which was dismissed by judgment dated 23.9.1981 as time barred. First appeal No. 12/1982 was filed against the aforesaid judgment in which this Court by order dated 17.8.1982 restrained the respondent Nos. 3 and 4 from transferring the suit property by selling, mortgaging, gifting or alienating in any manner. However, liberty was given to them to move an application if they want to transfer any of the suit properties, which would be decided on hearing the parties. Respondent Nos. 6 to 8, which included Shyama Devi, Kamal Kishore and Bimal Kishore were impleaded later on and therefore with regard to them this Court on 23.9.1982 passed the order restraining them from transferring the suit property till further orders. Petitioners filed contempt petition against them alleging that they transferred the suit property despite the aforesaid order. Those respondents in their reply and affidavit filed before this Court refuted the allegations. This Court by order dated 18.10.1984 discharged them from the contempt proceedings and disposed of the petition. The first appeal was allowed by judgment dated 1.7.1991 and the partition suit was decreed holding the plaintiff? appellants entitled to 1/8th share together (1/16th share each) in the said properties. The respondents filed D.B. Special Appeal (Civil) No. 29/1991 against the aforesaid judgment and decree, which was dismissed vide judgment and decree dated 18.4.2014. When the petitioners filed execution petition, they learnt that the aforesaid shop has been transferred by the respondents in favour of wife of Dharam Singh, i.e. Shanti Devi and two sons namely; Tehal Singh and Mahendra Singh. Learned counsel submits that Dharam Singh was wrongly discharged because he filed a false affidavit in the contempt proceedings contending that he was a tenant in the suit property on 19.5.1984, whereas the fact is that the agreement to sale was already executed on 23.12.1983 by Kamal Kishore in favour of Shanti Devi and Tehal Singh and Mahendra Singh. Learned counsel for the petitioner has relied on the judgments of Supreme Court in A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors. - : (2007) 4 SCC 221, S.P. Chengalvaraya Naidu (Dead) by L.Rs. vs. Jagannath (Dead) by L.Rs. & Ors. - : (1994) 1 SCC 1, Deepa Gourang Murdeshwar Katre vs. Principal, V.A.V. College of Arts & Ors. - : (2007) 14 SCC 108 and United India Insurance Co. Ltd. vs. Rajendra Singh & Ors. - : (2000) 3 SCC 581 and argued that any order obtained by exercise of fraud on the Court can be recalled at any point of time whenever such fraud comes to the notice of the affected party. It is therefore prayed that the application be allowed in terms of the prayer made therein.

(3.) No doubts the judgments of Supreme Court relied on by the learned counsel for the applicants -petitioners lays down the law that any judgment or decree obtained by fraud is liable to be set aside, but only in a properly constituted proceedings. The present proceedings are based on application filed under Sec. 12 of the Contempt of Courts Act wherein the prayer is made for not only punishing the respondents for committing the contempt of Court and imposition of exemplary cost, but also for restoration of the original position of the shop in question and cancellation of sale deed and also for prosecution of the respondents for filing false and wrong reply - affidavit.