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DEEPAK GUPTA, J. –

Present revision petition [CR-5807-2010] has been filed by the decree-holder assailing the order dated 09.08.2010 (Annexure P-12) passed by the learned Additional Civil Judge (Senior Division), Rewari, whereby the execution petition filed by the petitioner for implementation of the judgment & decree dated 01.06.2004 was dismissed on the ground that the decree sought to be executed was not executable.

2. CR No.7587 of 2018 has also been filed by the petitioner-Ram Singh challenging the order dated 29.08.2018 (Annexure P5) passed by the learned trial Court in the subsequent suit instituted by the judgment-debtors, whereby his application under Section 10 CPC for staying the proceedings of the said suit was dismissed.

3. Since both the revisions arise out of the same litigation and involve an interconnected controversy relating to the judgment and decree dated 01.06.2004, they have been heard together and are being disposed of by this common order.

Facts leading to Decree 01.06.2004:

4. The facts giving rise to the controversy, insofar as relevant for the present adjudication, are that the petitioner-Ram Singh instituted Civil Suit No.51 of 2002 seeking permanent injunction against respondents No.1 to 9. The case pleaded by the plaintiff was that he and the proforma defendants were owners in possession of the property marked ABCD in the site plan Ex.PW1/1, stated to form part of Khasra No.621 measuring 1 kanal 14 marla, situated in village Karwaha Manakpur. The boundaries of the property were specifically set out in the plaint. It was further pleaded that the portion shown in red colour in the site plan was being used as a passage for ingress and egress to the houses of the plaintiff and proforma defendant Dhanpat. It was alleged that defendants No.1 to 9 had no right, title or interest in the suit property and were threatening to take forcible possession and raise construction over the same.

5. Defendants No.7 to 9 filed a written statement admitting the claim of the plaintiff, whereas the remaining defendants were proceeded against ex parte.

6. The plaintiff thereafter led evidence, including the evidence of the draftsman, who proved the site plan, and produced, inter alia, Jamabandi for the year 1938-39 Ex.PA/T, pedigree tables and other revenue documents. On consideration of the material before it, the learned trial Court decreed the suit on 01.06.2004 and restrained defendants No.1 to 9 from taking forcible possession, creating any obstruction in the passage and raising construction in the portion shown in red colour in the site plan Ex.PW1/1.

7. The judgment and decree dated 01.06.2004 were not challenged by the defendants by way of appeal and consequently attained finality.

Execution Proceedings:

8. Thereafter, the decree-holder initiated execution proceedings alleging that, subsequent to the decree, the judgment-debtors had taken forcible possession of the portion shown in red colour in the site plan and had also occupied the tin shed existing thereon. Warrants of possession were issued. Objections were filed by judgment-debtor Hari Ram, who, inter alia, contended that the property sought to be taken in execution was not part of Khasra No.621 and that the site plan relied upon by the decree-holder did not correspond with the subsequent revenue record. It was further asserted that during consolidation, Khasra No.621 had been bifurcated into other khasra numbers.

9. The decree-holder contested the objections and maintained that the decree had conclusively determined the property in dispute and that the site plan forming part of the decree was sufficient for its identification. The Executing Court, however, directed demarcation of the property. The demarcation report dated 29.08.2007 recorded that Khasra No.621 had been bifurcated into other khasra numbers and concluded that the property shown in red colour in the site plan was not a part of Khasra No.621 and was situated in Abadi/Lal Dora. The decree-holder filed detailed objections to the said report, questioning the manner in which the demarcation had been conducted and the revenue material relied upon.

10. By the impugned order dated 09.08.2010, the learned Executing Court noticed that at the time of the suit Khasra No.621 had already been bifurcated during consolidation and that the property shown in red colour was not a part or parcel of Khasra No.621. On this basis, it concluded that the decree was not executable, and dismissed the execution petition.

Subsequent suit and CR No.7587 of 2018

11. The matter, however, did not end there. Judgment-debtor Hari Ram, along with another judgment-debtor, instituted a separate suit seeking setting aside of the ex-parte judgment and decree dated 01.06.2004 on the allegation that the same had been obtained by fraud and suppression of material facts.

12. During the pendency of that suit, the present petitioner-Ram Singh moved an application under Section 10 CPC, praying that proceedings in the subsequent suit be stayed on account of the pendency of the present revision concerning execution of the decree dated 01.06.2004.

13. The said application was dismissed by the learned trial Court vide order dated 29.08.2018, giving rise to CR No.7587 of 2018.

CR No.7587 of 2018:

14. Learned counsel for the petitioner submits that the subsequent suit ought not to have been permitted to proceed during the pendency of the first revision petition CR-5807-2010, as the decree dated 01.06.2004 had attained finality and the question of its execution was pending consideration before this Court. It is contended that the proceedings in the subsequent suit ought to have been stayed under Section 10 CPC.

15. Learned counsel for the respondents, on the other hand, submits that Section 10 CPC has no application. The present proceedings are execution proceedings arising out of a decree and are not a previously instituted suit, in which the validity of the decree is directly and substantially in issue. The subsequent suit raises a substantive challenge to the decree itself on the ground of fraud and suppression of material facts.

16. The contention raised on behalf of the respondents merits acceptance.

17. Section 10 CPC is attracted, where the matter directly and substantially in issue in a subsequently instituted suit is also directly and substantially in issue in a previously instituted suit between the same parties, subject to satisfaction of the other statutory requirements. The provision is intended to prevent simultaneous trial of two suits involving the same matter and thereby avoid conflicting findings. The Hon’ble Supreme Court has reiterated that the requirement is of identity of the matter directly and substantially in issue; and that mere similarity of facts or overlapping questions is not sufficient.

18. In the present case, the proceeding pending before this Court in the first revision CR-5807-2010 has arisen out of an order passed in execution. The question before this Court is whether the Executing Court was justified in dismissing the execution petition by holding that the decree dated 01.06.2004 was not executable.

19. The subsequent suit, on the other hand, seeks adjudication upon the validity of the judgment and decree dated 01.06.2004 itself, on the allegation that the decree was obtained by fraud and suppression of material revenue and consolidation record.

20. The two proceedings undoubtedly arise from the same factual background and the outcome of one may have a bearing upon the other. However, they cannot be regarded as two suits, in which the same matter is directly and substantially in issue within the meaning of Section 10 CPC. The present revision cannot be treated as a previously instituted suit for adjudication of the validity of the decree.

21. Consequently, the pendency of the present revision did not furnish a ground for staying the subsequent suit under Section 10 CPC. The learned trial Court, therefore, committed no error in dismissing the application filed by the petitioner under Section 10 CPC.

22. CR No.7587 of 2018 accordingly deserves to be dismissed.

 Present revision against dismissal of execution[CR-5807-2010]:

23. Taking up the present revision challenging the order dated 09.08.2010 passed by the Executing Court, assailing the said impugned order, learned counsel for the petitioner submits that the Executing Court has exceeded its jurisdiction in going behind the decree. According to learned counsel, the property was specifically identified by the site plan and its boundaries, and the decree had attained finality. It is submitted that the subsequent revenue record could not be relied upon to nullify or hold a decree as inexecutable, which had already become final. Reliance has been placed upon Atul v. Bhup Singh Jain, 2002(2) RCR (Civil) 312 and Kali Saran v. Hari Ram, 1957 PLR 419, to contend that where there is conflict between the description and measurements of the property, the former will prevail.

24. Per contra, learned counsel appearing for the respondents submits that the controversy is not one of a mere discrepancy in description. According to him, the plaintiff deliberately withheld the subsequent consolidation record from the trial Court and relied upon an obsolete revenue record in order to obtain the ex parte decree. It is submitted that the subsequent revenue record establishes that Khasra No.621 had already been bifurcated and that no portion of the property sought to be recovered in execution formed part of the said khasra number. It is further submitted that this issue is now the subject matter of the subsequent suit instituted specifically for setting aside the decree on the ground of fraud, which is pending for adjudication.

Consideration by this Court:

25. This Court has considered the rival submissions and examined the material placed on record.

26. There can be no dispute with the general proposition that an executing Court cannot go behind the decree. Its jurisdiction is ordinarily confined to giving effect to the decree as passed and it cannot re-adjudicate the rights, which stand concluded by the decree. The Hon’ble Supreme Court has repeatedly reiterated that an executing Court cannot question the correctness or legality of a decree except in a case, where the decree is a nullity.

27. However, equally well settled is the principle that fraud vitiates judicial proceedings. In S.P. Changalvaraya Naidu (dead) by LRs v. Jagannath (dead) By LRs, (1994) 1 SCC 1, the Hon’ble Supreme Court held that a judgment or decree obtained by playing fraud upon the Court is a nullity and can be challenged even in collateral proceedings.

28. The difficulty in the present case, however, is that this Court is not presently called upon to finally determine whether fraud was actually practiced in obtaining the decree dated 01.06.2004.The material placed on record raises a question, which cannot simply be brushed aside as an ordinary discrepancy in the description of the property. The original suit was decreed on the basis of the pleadings and evidence produced before the trial Court, including the Jamabandi for the year 1938-39 and the site plan. The subsequent material relied upon by the judgment-debtors indicates that consolidation proceedings had taken place and Khasra No.621 had been bifurcated into different khasra numbers. The subsequent demarcation report also proceeded upon the consolidation record and concluded that the red portion shown in the site plan was not part of Khasra No.621.

29. The crucial questions as to when the subsequent consolidation record came into existence; whether it was within the knowledge of the plaintiff, when the original suit was instituted; whether it was material to the adjudication of the suit; whether it was deliberately withheld; and whether such withholding amounted to fraud upon the Court, are essentially questions of fact requiring appreciation of evidence. Those very questions are now pending adjudication in the subsequent suit instituted by the judgment-debtors.

30. The Executing Court, therefore, could not have finally determined the aforesaid controversy in execution proceedings and, on that basis, declared the decree itself inexecutable. The Executing Court was required to execute the decree as it stands. While it could certainly examine the identity of the property for the purpose of implementing the decree, it could not, under the guise of determining identity, re-open the adjudication, which had resulted in the decree or pronounce upon the allegation that the decree itself had been procured by fraud.

31. The impugned order, to that extent, cannot be sustained.

32. At the same time, the Court cannot lose sight of the subsequent development, which has taken place after the decree. The judgment-debtors have not merely raised an objection in execution; they have instituted a substantive suit seeking setting aside of the decree on the specific ground that subsequent consolidation and revenue record was suppressed at the time of obtaining the decree.

33. This circumstance assumes significance because the relief presently sought in execution is not merely enforcement of an abstract injunction. The decree-holder seeks, in substance, restoration/delivery of possession of immovable property on the allegation that the judgment-debtors have violated the decree by taking possession of the portion shown in red colour.

34. There is no absolute legal impediment to restoration of possession in execution of a decree for injunction, where the decree-holder establishes that he was dispossessed subsequent to the decree. Order XXI Rule 32(5) CPC can, in an appropriate case, enable the Executing Court to restore possession, where the decree for injunction has been violated by subsequent dispossession.

35. However, the peculiar feature of the present case is that the very decree, under which such possession is sought, is the subject matter of a pending challenge on the allegation of fraud based upon the subsequent consolidation record.

36. In these circumstances, immediate delivery of possession may create a situation, which could become difficult to undo, if the subsequent suit ultimately succeeds and the decree dated 01.06.2004 is set aside. On the other hand, dismissal of the execution petition altogether would also be inappropriate, because the decree has not, as on date, been set aside by any competent Court and the decree-holder should not be compelled to institute fresh execution proceedings after conclusion of the subsequent litigation.

37. The appropriate course, therefore, is to preserve the execution proceedings without permitting their coercive implementation until the validity of the decree is adjudicated in the subsequent suit. Such a course does not amount to holding that the decree is fraudulent. It equally does not amount to holding that the decree is immune from challenge. It merely recognises that the question concerning the alleged suppression of the consolidation record and the consequential allegation of fraud is pending adjudication before the competent Court.

Conclusion:

38. Consequent to above discussion, it is held that insofar as CR No.7587 of 2018 is concerned, the application under Section 10 CPC was rightly declined because the present revision is not a previously instituted suit and the statutory conditions of Section 10 CPC are not satisfied. The subsequent suit is, therefore, not liable to be stayed on that ground.

39. Insofar as the CR-5807-2010 is concerned, the Executing Court was not justified in declaring the decree inexecutable merely on the basis of the subsequent revenue record and the demarcation report. The Executing Court could not go behind a decree, which had attained finality, particularly when the allegation that the decree itself was obtained by fraud, is still the subject matter of a separate suit.

40. At the same time, having regard to the nature of the subsequent challenge and the fact that execution involves delivery of possession of immovable property, it would not be appropriate to permit immediate coercive execution before the competent Court decides whether the decree dated 01.06.2004 was obtained by suppression of material facts or fraud.

Result:

41. Accordingly, CR No.7587 of 2018 is dismissed; whereas CR-5807-2010 is allowed. The impugned order dated 09.08.2010 (Annexure P-12) is set aside and the execution petition is restored to its original number.

42. The execution petition shall, however, remain in abeyance insofar as further coercive steps, including delivery of possession, are concerned, till final adjudication of the subsequent suit instituted by the judgment-debtors challenging the judgment and decree dated 01.06.2004.

43. It is clarified that this Court has expressed no opinion on the merits of the allegation of fraud, including whether the subsequent consolidation/revenue record was deliberately suppressed before the trial Court, or whether such suppression, if established, would vitiate the decree. Those questions shall be decided by the competent Court seized of the subsequent suit on the basis of the pleadings and evidence led before it.

44. It is further clarified that the dismissal of CR No.7587 of 2018 is confined to the applicability of Section 10 CPC and shall not be construed as an expression of opinion on the merits or maintainability of the subsequent suit.

45. Upon final adjudication of the subsequent suit, either party shall be at liberty to place the judgment & decree passed therein before the Executing Court, whereupon the execution proceedings shall be dealt with in accordance with the final adjudication and law.

46. Since the subsequent suit concerns the validity of a decree passed on 01.06.2004 and its adjudication has a direct bearing upon the pending execution, the learned trial Court seized of the subsequent suit shall make every possible endeavour to dispose of the same expeditiously, preferably within six months from the date of receipt of a certified copy of this order, subject to cooperation of the parties and the normal course of proceedings.

47. Both the revisions stand disposed of in the above terms.

Order accordingly.

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