The High Court's jurisdiction under Article 227 cannot be invoked to claim equitable supervisory jurisdiction by ignoring the prescribed procedure under the Code of Civil Procedure.

1. Heard the learned senior counsel, Mr. K.N. Chaubey, for the petitioner.

2. This application under Article 227 of the Constitution of India has been filed by the petitioner praying for the following relief’s :

(i) For quashing the Judgment dated 13.09.2012 and decree dated 26.09.2012 as contained in Annexure “5”

(ii) For issuance of an order quashing the order dated 12.08.2016 as contained in Annexure “6” and

(iii) For setting aside the execution proceeding including the order dated 02.09.2016 and 30.09.2016 as contained in Annexure “6”.

3. For better understanding the facts, it may be stated that the plaintiff respondent filed eviction suit being Title Suit No.30 of 2011 against the petitioner and his mother. The said suit was decreed ex.-parte by the Judgment and order dated 13.09.2012 and decree was followed. This is the judgment which is under challenge.

4. It appears that after obtaining the ex.-parte Judgment and decree, the plaintiff respondent filed execution case being Execution Case No.1 of 2013. In the said Execution case, an objection under Section 47 CPC was filed by the present petitioner and the Court below by the order dated 12.08.2016 rejected the objection petition under section 47 of the Code of Civil Procedure. This order is also under challenge. Accordingly, the petitioner prayed for their relief to the effect that the execution proceeding itself may be set aside.

5. The learned senior counsel relying on the various decisions of the Hon’ble Supreme Court, Allahabad High Court, Andhra Pradesh High Court and Calcutta High Court submitted that the plaintiff respondent by playing fraud on the Court obtained an ex.-parte decree. If the ex.-parte decree is fraudulently obtained by playing fraud then it is a nullity and the same can be interfered with even under Article 227 of the Constitution of India and even under the writ jurisdiction of the High Court. The decisions relied upon by learned senior counsel for the petitioner are : -

(i) AIR 2002 SC 1165 (ii) AIR 1977 Calcutta 281 (iii) AIR 1974 Andhra Pradesh 1 Full Bench (iv) AIR 2002 SC 2082 (v) AIR 1977 SC 1222 (vi) AIR 2000 Allahabad 58 (vii) AIR 2005 Guwahati 58 (viii) AIR 1998 SC 128 (ix) AIR 1999 SC 683 (x) AIR 2005 SC 3330 (xi) AIR 2007 (2) PLJR 201 (xii) AIR 1996 SC 1819.

6. On the strength of these decisions, the learned senior counsel, Mr. Chaubey, for the petitioner submitted that the Judgment which is nullity can be challenged even in co-lateral proceeding and even in execution case but the learned Court below rejected the application under Section 47 CPC also. The Executing Court also did not take into notice of the fact that the mother of the petitioner has filed an application under Order 9 Rule 13 CPC for setting aside the ex.-parte Judgment and Decree. According to the learned counsel, in some of the decisions relied upon by the petitioner, it has been held if the proceeding under Order 9 Rule 13 CPC is set aside then person who succeed in the Order 9 Rule 13 CPC proceeding is entitled for the restitution of the possession of the property. According to the learned counsel, the father of the petitioner had purchased the suit property by registered sale deed which is annexed with this application but the plaintiff respondent giving false address of the petitioner and his mother obtained the decree ex.-parte without service of the notice on the petitioner and if the decree is allowed to stand, then it will not only cause irreparable loss or injury but shall greatly prejudice the petitioner and it will occasion failure of justice.

7. Admittedly, eviction suit was filed by the plaintiff respondent and ex.-parte judgment and decree has been passed by the trial Court.

8. The Hon’ble Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar AIR 2005 SC 626 has held that “when an ex.-parte decree is passed, the defendant apart from filing a review petition and a suit for setting aside the ex.-parte decree on the ground of fraud has two clear option