JUDGMENT/DECREE/ORDER - Decree Setting aside of, on ground of fraud played on defendant - Proper remedy Civil Procedure Code 1908, Section 151 - Scope. Civil Procedure Code 1908 Section 151 - Scope - Petition under Section 151, to set aside decree on ground of fraud played on defendant, not maintainable - Serious factual controversies cannot be enquired into an application filed under Section 151 - Defendant may file separate suit for setting aside decree obtained by fraud - Present remedy sought is misconceived - Return of application by trial Court without numbering it, justified - CRP dismissed.

In the elaborate affidavit filed in support of the application, several facts had been narrated and several allegations had been made as against one P. Anil Kumar, a builder, and also certain specific averments were made relating to taking of signatures on the alleged agreement of sale, on the written statement, vakalath which had been filed on behalf of the revision petitioner. The affidavit, in fact, is an elaborate affidavit running into 16 paras. As can be seen from the nature of averments made in the affidavit filed in support of the application, these are all factual controversies and these allegations relating to the fraud had been made, as against respondents-plaintiffs i.e., the parties and also one P. Anil Kumar who is said to be related to the 1st plaintiff i.e., the son of the 1st plaintiff. Certain submissions were made relating to the plea of limitation as well. [Para 6]

In 2002 (5) ALD 502 (DB) the Division Bench of the High Court observed that if the' evidence on record discloses that one party has played fraud on the other party, in such event the only remedy leftover to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud, but if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 of the Code. It is no doubt true that when fraud had been played on Court and if the Court is satisfied, the Court always is empowered to recall such an order.

However, as can be seen from the averments made in the written statement, it appears that since the execution of the agreement of sale was not put into controversy at all, the same had culminated into a decree. No doubt, now certain allegations are made under what circumstances the written statement was got filed, how the vakalat was obtained and certain other further facts. These serious factual controversies, in the considered opinion of this Court, definitely cannot be enquired into in an application filed under Section 151 of the Code. Even in this view of the matter, this Court is thoroughly satisfied that this remedy is a misconceived remedy. However, it is made clear that the observations if any made while returning this Interlocutory Application, may not come in the way of the petitioner, if the petitioner is advised to pursue his lawful remedies in accordance with law. Subject to the above observations, the civil revision petition shall stand dismissed.

[Para 6]

2002 (5) ALD 502 (DB) - Followed.

CASES CITED

1. A. V. Papayya Sastry and others v. Government of A.P. and others, 2007 (6) ALD 68 SC) = (2007) 4 SCC 22 [Para 6]

2. Anita v. R Rambilas, 2002 (5) ALD 502 (DB) [Para 6]

3. North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) by L.Rs., (2008) 8 SCC 511 [Para 6]

ORDER :-Heard Sri Pratap Narayana Sanghi, the learned Counsel representing the petitioner and Sri M.S. Ramchandra Rao, the learned Counsel representing the respondents.

2. The present civil revision petition is filed as against an order made in I.A. (SR) No.1598/2008 in O.S. No.1540/1994 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad. The revision petitioner being aggrieved of the return of the application without numbering the said application filed under Section 151 of the Code of Civil Procedure praying for setting aside the decree in O.S. No.1540/

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