Thursday, 15 September 2016

Whether fraudulent character of decree can be assailed in execution proceeding?

This Court has in 2001 (3) AMR 720 : (2001 AIHC 3500) taken the view that fraudulent character of decree can be assailed even in execution by persons like present respondents, paragraph 6 of this ruling reads as under.
"6. On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend that the question relating to decree obtained by fraud cannot be gone into by the executing Court at the instance of the third party who is neither judgment debtor nor claiming through the judgment-debtor. Rule 101, as it presently stands clearly bars a separate suit and instead postulates that all questions arising between the parties shall be determined by the Court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the executing Court at the instance of a stranger to the decree. Reliance placed on the decision of this Court in Bank of India's case (supra) would be of no avail in as much as the observations made therein are in context of the issue that was considered by that Court. Moreover the decision of the Apex Court in Hiralal Patni's Case (supra) deals with the pre-amendment situation, which his inapplicable to our case. On the other hand, the respondents have rightly relied on the decision of the Apex Court inBrahmdeo Chaudhary v. Rishikesh Prasad Jaiswal. In the said decision the Apex Court has held that it cannot be said that the only remedy available to the stranger to the decree for possession who has resisted its execution, to have his claim agitated is the one Under Rule 99 of order XXI after he has lost possession to the decree-holder and that he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The Apex Court after considering the scheme of order XXI has observed that the provisions of Order XXI lay down a complete Code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. In para 5 of this decision the apex Court has observed that the amended provision of Order 21 clearly guards against the pitfall and provides a statutory remedy both in the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which is subject to the hierarchy of appeals would remain binding between the parties in such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete Code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. In view of the aforesaid settled legal position it is too late in the day for the Petitioner to contend to the contrary."
10. From this judgment also it is clear that respondents could resist the execution on implementation of decree on lines of succession certificate obtained by petitioner from Chandrapur Court before Wardha Court. In fact some amounts have been withdrawn from bank account in Wardha jurisdiction.
Bombay High Court
Manda R. Pande vs Smt. Jankibai S. Dubey on 8 September, 2005
Equivalent citations: AIR 2005 Bom 397, 2006 (2) MhLj 162

Bench: B Dharmadhikari


1. The petitioner in this petition under Articles 226 and 227 of Constitution of India is original defendant. The present respondents have filed a suit before Civil Judge, Senior Division, Wardha vide RCS 1 / 1998 for declaration and cancellation of succession certificate. The immovable property in relation to which declaration is sought is located in Wardha District while the petitioner obtained succession certificate from court in another district i.e. Chandrapur. One of the declarations prayed for by present respondents is that the succession certificate is obtained by fraud. The present petitioner who is defendant, challenged the territorial jurisdiction and con- tended that suit of such a nature ought to have been instituted at Chandrapur only Joint Civil Judge, Senior Division, Wardha, upheld this objection on 12-3-2001 and ordered return of the plaint to present respondents for presentation to Chandrapur court. The respondents challenged this order by filing Misc. Civil Appeal 23/2001 and on 5-8-2002 the Additional District Judge, Wardha, held that the Civil Court at Wardha had jurisdiction to entertain the suit and return of plaint was not proper. It is this order which has been challenged in present petition.
2. I have heard advocate Sohoni for petitioner and advocate Wagh for respondents. Considering the controversy, it has been heard finally at the admission stage. Hence, Rule. Rule made returnable forthwith and heard finally by consent.
3. Advocate Sohoni appearing for Petitioner states that one Rambharose Dubey, resident of Chandrapur executed a Will on 5-1-1995 and after his expiry on 6-2-1995 at Seloo town in Wardha District, the petitioners filed application for grant of succession certificate under Section 372 of Indian Succession Act, 1925, on 1-1-1996 vide Succession Case 1 of 1996 before Civil Judge, Senior Division, Chandrapur. The said court issued public notice, held inquiry and as no objections were received from anybody, it granted succession certificate in favour of petitioner vide order dated 2-5-1997. It is this contention that there was no fraud in the matter and if respondents want to challenge said succession-certificate, they have to approach Chandrapur court. The suit according to him was not cognizable by Wardha court and the order passed by trial Court needs to be maintained. He has relied upon the judgment between Dukan Nand Lal v Abdul Hafiz reported at AIR 1960 Jammu and Kashmir 76 and between Sampat Lal v. Kaluram Brijmohan reported at AIR 1940 Patna 444. He contends that the Chandrapur court alone has jurisdiction to take cognizance of alleged fraud.
4. Advocate Wagh contends that deceased Rambharose had immovable properties in territorial jurisdiction of Wardha court in Wardha District and it was joint family property which consisted of agricultural lands admeasuring 13.5 acres, 10 acres, a residential house cum Kotha and two residential houses. It is stated that Rambarose was younger brother of grand-father of present respondent 3. It is stated that he died is sueless on 6-2-1995 in Wardha district and he also did not execute any will or gift. It is stated that amount of Rs. 92333.03/- (Rs. Ninety two thousand three hundred and thirty three and 3 paise only ) was in his account with bank in Wardha. It is further stated that deceased was permanent resident of Seloo town in Wardha district and he was government employee. It is further stated that in such circumstances petitioner (original defendant) could not have filed succession case at Chandrapur. Certain material is also pointed out in plaint to show that deceased was living in Wardha only. It is in this background that present respondent No. 2 and his father instituted above-mentioned Civil Suit in Wardha court pointing out all these aspects. They also contended that the alleged will dated 5-1-1995 of deceased is bogus and fraudulent document. It is contended that in application filed before Chandrapur court present petitioner did not give details of other legal heirs and thus by playing fraud he obtained the succession certificate and in July 1997 respondents learnt that on the basis of such certificate petitioner withdrew huge amount from the Co-operative Bank located in Wardha District. Hence after issuing notices, the suit was filed and prayer made was to cancel said succession certificate being void, to declare that petitioner is not legal heir of deceased, to declare that the alleged will dated 5-1-1995 is a fraud committed by petitioner on deceased and with further relief to redeposit the amount withdrawn by petitioner from the account of deceased on the basis of such succession certificate. Learned advocate contends that the alleged certificate has been issued by court, which was not possessing jurisdiction to do so. He further states that the property in relation to which said certificate is to be used and has been used is/ was in territorial jurisdiction of Civil Court at Wardha. He argues that succession certificate is to be implemented at Wardha and therefore also the Court at Wardha has jurisdiction to take cognizance of respondents suit. He further states that it was not necessary for respondents to claim any declaration in relation to the succession certificate because in view of provisions of Section 387 of Succession Act, 1925 such succession certificate is no bar and does not operate as res judicata in Civil dispute where the rights of parties as heirs are being looked into. He relies upon the judgment of Hon'ble Apex Court reported at between Joginder Pal v. Indian Red Cross Society.
5. It will be appropriate to consider the prayers made by respondents in Regular Civil Suit 1/1998 filed by them at Wardha. The prayers are: (reproduced as they appear in plaint) "1). A decree for cancellation of succession certificate issued by Civil Judge, Senior Division, Chandrapur dated 2-5-1997 is declared void having no jurisdiction.
2). It is further be decreed that the defendant is not a legal heir of deceased Rambharose who has two real brothers and alive are the legal heirs of deceased Rambharose and the defendant cannot and could not be declared as a only legal heir of deceased Rambharose.
3). It is further be declared that the so-called document treated as a will dated 5-1 -1995 is a fraud committed by defendant on deceased Rambharose and hence it is null and void, not binding on the plaintiff.
4). A decree in case if the amount of the deceased is withdrawn on the strength of succession certificate dated 2-5-1997 by the defendant from the various banks and Post Office may kindly be directed to deposit in the Court that is Civil Judge, Senior Division, Wardha for proper distribution of the shares who will be entitled being legal heirs of deceased Rambharose as per law.
5). The costs of the suit be saddled on the defendant.
6). Any other relief which Court fee proper be also awarded in favour of the plaintiff against the defendant."
6. It is thus clear that the declaration claimed is petitioner alone is not the legal heir of deceased Rambharose and two brothers of deceased are also entitled to succeed to his property. Declaration is also claimed in relation to Will allegedly executed by deceased and also in relation to succession certificate issued by Chandrapur court. Thus, suit is not only for declaration that the succession certificate obtained by petitioner from Chandrapur court is void. The fact that deceased Rambharose died in Wardha district is not in dispute and the further facts that immovable property left behind by him is also situated in Wardha district are also not in dispute. In such circumstances, even if one ignores issue of succession certificate, still in view of provisions of Section 16 of Code of Civil Procedure, the Court at Wardha possesses territorial jurisdiction. In view of provisions of Section 387 of Indian Succession Act, 1925, it is apparent that decision of Chandrapur Court does not come in way of respondents in agitating these issues before Wardha Court in above mentioned Civil Suit. Section 387 in clear terms specifies that decision under part X of Indian Succession Act upon any question or right between any parties cannot operate as bar for trial of same question in any substantive suit and it further stipulates that person receiving any security or alone or other interest of deceased on the basis of succession certificate granted under that part is liable to account therefor to the person lawfully found entitled thereto. Thus, even if respondents do not challenge the succession certificate, still in view of this provision Civil Court at Wardha is competent to consider the suit as filed and give relief to the respondents if it finds them eligible for the same. At between Joginder Pal v. Indian Red Cross Society, in paras 15 and 16, the Hon'ble Apex Court observes as under:
"15. Part X of the Indian Succession Act deals with Succession Certificates. Sections 373383(e)and 387 are relevant. They read as follows:
"373. Procedure on application.
(1) If the District Judge is satisfied that there is ground for entertaining the application he shall fix a day for the hearing thereof any cause notice of the application and of the day fixed for the hearing.
(a) to be served on any person to whom, in the opinion of the Judge special notice of the application should be given, and
(b) to be posted on some conspicuous part of the Court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.
2. When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.
3. If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best tile thereto.
4. When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.
383. Revocation of certificate: - A Certificate granted under this Part may be revoked for any of the following cause namely :
         XXX          XXX          XXX
        XXX          XXX          XXX
 

(e) That a decree or order made by a competent Court in a suit or other
 proceeding with respect to effects comprising debts or securities
 specified in the certificate renders it proper that the certificate
 should be revoked.
 

387. Effect of decisions under this Act and liability of holder of certificate thereunder. No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between same parties, and nothing in this part shall be constru to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security to account therefor to the person lawfully entitled thereto."
(Emphasis supplied) These Sections make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings.Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus Section 387 permits the filing of a suit or other proceeding even though a succession certificate might have been granted.
16. This question was also considered by this Court in the case of Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Filial . In this case after having considered the provisions ofSections 370 to 390 of the Indian Succession Act as well as Section 11 of the Code of Civil Procedure, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. It has been held thatSection 387 of the Indian Succession Act takes a decision given under Para X of the Indian Succession Act outside the purview of Explanation VIII to Section 11 of the Code of Civil Procedure. It has been held that Section 387 gives a protective umbrella to ward off from the rays of res judicata to the same, issue being raised in a subsequent suit or proceeding. We are in full agreement with the view expressed in this case."
Thus it is clear that the respondents could have very well ignored the succession certificate issued by Chandrapur Court. The suit filed without any challenge thereto would have been also competent and tenable.
7. Question is whether prayers made in relation to the succession certificate in any way affect the territorial jurisdiction of Wardha Court. Advocate Sohoni has relied upon the judgment between Dukan Nand Lal v. Abdul Hafiz reported at AIR 1960 Jammu and Kashmir 76. In this case respondent instituted a suit before Sub Judge at Bhadrawah for setting aside a decree obtained by petitioner from Court of Sub-Judge, Udhampur. The allegation was said decree was obtained by fraud. Petitioner raised a ground that court at Bhadrawah had no jurisdiction to entertain such suit. The Sub Judge at Bhadrawah found that he had jurisdiction and hence, the petitioner approached High Court in Revision. His contention was that such suit ought to have been instituted before the Court, which granted the impugned decree. The learned single Judge found that proposition of petitioner was very wide. It is observed that if some part of cause of action accrued within the jurisdiction of Bhadrawah Court, the said court can also entertain the suit. The learned Judge has also relied upon two earlier judgments of Allahabad High Court i.e. ILR (1903) 25 Allahabad 48 (Banke Behari Lal v. Pokhe Ram) and AIR 1915 Allahabad 163 (Jawahir v. Neki Ram) to find that if part of fraud is committed within the jurisdiction of Court, Such Court is entitled to entertain a suit to set aside the decree obtained by fraud. Support is also taken from decision of Madras High Court reported at AIR 1958 Mad 516 (Natrajan v. Saraswathi Ammal). The decree impugned passed by the Udhampur Court was alleged to be fraudulent by contenting that the fact that respondent was minor was not disclosed therein. In this background the learned single Judge held that merely because certain facts which were relevant to the previous litigation arose within the jurisdiction of Bhadrawah court and those facts do not form part of cause of action for present suit to set aside the decree as one obtained by fraud, that would not give jurisdiction to Bhadrawah court. The revision filed by petitioner therefore come to be allowed. Here, position is entirely different. The challenge is not only to succession certificate but also to right to succeed in civil law. Thus, in view of Section 387 of Indian Succession Act court at Wardha had jurisdiction. Not only this the deceased had expired in Wardha District his property, movable and immovable, is situated in Wardha district and the other legal heirs are also in Wardha. The succession certificate is required to be implemented at Wardha. Thus the alleged fraud committed at Chandrapur is not complete unless and until the property becomes available to petitioner at Wardha. Hence, the ruling has no application here.
8. Other ruling Sampat Lal v. Kaluram Brijmohan reported at AIR 1940 Patna 444 also lays down that some event taking place within Chapra must be part of cause of action to enable Chapra court to entertain suit. It appears that the plaint filed by appellant was returned for presentation to proper Court by civil court of Subordinate Judge at Saran. The appellant was having some business transactions with defendants who resided at Bombay. There was a simple mortgage bond hypothecating some immovable properties situated at Saran District. The defendants at Bombay obtained preliminary decree in relation to these properties and when the plaintiff/appellant received notice about it, he filed the suit for declaration that decree obtained at Bombay is illegal fraudulent and nullity. The observations need to be considered in this background. The Hon'ble Division Bench of Patna High Court held that whether Bombay High Court had territorial jurisdiction or not, was the question which cannot be canvassed before it. Said Division Bench clarified that point for decision before it was not whether Bombay High Court had territorial jurisdiction over the previous suit but whether the plaintiffs have set up the cause of action entitling them to sue at Chapra. From perusal of plaint, Hon'ble Division Bench found that cause of action disclosed was only receipt of notice from attorneys of defendants. The Division Bench observed that it was not the case in which execution had been taken out by attachment of any property or any similar over act or issue of process within the district in which suit instituted. It is in this background, the Hon'ble Division Bench concluded that cause of action accrued for appellant/plaintiff before it at Bombay only and the order of Subordinate Judge directing return of plaint was justified. It is thus clear that the facts as are available in this case were not pleaded and argued before Patna High Court. Here, it is the specific case of respondents that their existence itself was not disclosed to Chandrapur Court and the fact that deceased Rambharose was ordinary/permanent resident of Wardha district was also suppressed. In view of these facts, this ruling of Patna High Court also has no application in the present controversy. Here amount of deceased lying in Wardha Bank has been withdrawn by petitioner.
9. This Court has in 2001 (3) AMR 720 : (2001 AIHC 3500) taken the view that fraudulent character of decree can be assailed even in execution by persons like present respondents, paragraph 6 of this ruling reads as under.
"6. On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend that the question relating to decree obtained by fraud cannot be gone into by the executing Court at the instance of the third party who is neither judgment debtor nor claiming through the judgment-debtor. Rule 101, as it presently stands clearly bars a separate suit and instead postulates that all questions arising between the parties shall be determined by the Court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the executing Court at the instance of a stranger to the decree. Reliance placed on the decision of this Court in Bank of India's case (supra) would be of no avail in as much as the observations made therein are in context of the issue that was considered by that Court. Moreover the decision of the Apex Court in Hiralal Patni's Case (supra) deals with the pre-amendment situation, which his inapplicable to our case. On the other hand, the respondents have rightly relied on the decision of the Apex Court inBrahmdeo Chaudhary v. Rishikesh Prasad Jaiswal. In the said decision the Apex Court has held that it cannot be said that the only remedy available to the stranger to the decree for possession who has resisted its execution, to have his claim agitated is the one Under Rule 99 of order XXI after he has lost possession to the decree-holder and that he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The Apex Court after considering the scheme of order XXI has observed that the provisions of Order XXI lay down a complete Code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. In para 5 of this decision the apex Court has observed that the amended provision of Order 21 clearly guards against the pitfall and provides a statutory remedy both in the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which is subject to the hierarchy of appeals would remain binding between the parties in such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete Code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. In view of the aforesaid settled legal position it is too late in the day for the Petitioner to contend to the contrary."
10. From this judgment also it is clear that respondents could resist the execution on implementation of decree on lines of succession certificate obtained by petitioner from Chandrapur Court before Wardha Court. In fact some amounts have been withdrawn from bank account in Wardha jurisdiction.
11. In view of various factors noticed above, I find that the Court of Joint civil Judge, Senior Division Wardha possesses jurisdiction to take cognizance of the Regular Civil suit No. 1 of 1998 filled by respondents. The order dated 12-3-2001 passed by said Court is unsustainable and has been rightly reversed by learned Additional District Judge, Wardha. The order of learned Additional District Judge, Wardha does not call for any interference in Writ Petition. There is no merit in this writ petition and the same is accordingly dismissed with no order as to costs. Rule discharged.
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