The main legal point established in the judgment is that while a judgment obtained by playing fraud on the Court is a nullity and can be challenged in any Court, the District Consumer Forum has no jurisdiction to recall or review its order passed earlier, and the plea of fraud raised by the appellant in execution proceeding requires review of judgment which is not permissible under the Consumer Protection Act 1986.

ORDER

Akhtar Husain Khan, President - Heard learned Counsel for the appellant and perused order dated 12-07-2017 passed by District Consumer Forum, Jaunpur in Misc. Case No. 30/2015 Mussaib Hussain v. Manager Bajaj M/s. Niharika Automobiles whereby the District Consumer Forum has rejected objection filed by appellant and has passed order to issue NBW against appellant.

2. It is contended by learned Counsel for the appellant that present Misc. case has been registered for execution of judgment and order dated 29-12-2014 passed by the District Consumer Forum, Jaunpur in Complaint Case No. 182/2014 Manager Bajaj M/s. Niharika Automobiles.

3. It is further contended by learned Counsel for the appellant that the said judgment and order dated 29-12-2014 passed by the District Consumer Forum, Jaunpur is an ex parte order and has been obtained by fraud. As such appellant has moved objection before District Consumer Forum in execution proceeding. The District Consumer Forum has rejected objection of appellant without going through merits.

4. Learned Counsel for the appellant has referred judgment of Hon'ble Apex Court rendered in the case of S. P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs and others and reported in II (1993) BC 546 :(1994) 1 SCC 1 wherein Hon'ble Supreme Court has held as follows:-

'Fraud avoids all judicial acts, 'ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. Ist is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings."

5. I have considered the submission made by learned Counsel for the appellant and perused judgment of Honourable Apex Court referred by learned Counsel for the appellant.

6. In the case of Rajeev Hitendra Pathak and others v. Achyut Kashi Nath Karekak and another reported in IV (2011) CPJ 35(SC) the Hon'ble Apex Court has clearly held that District Consumer Forum has no jurisdiction to recall or review its order passed earlier. The plea of fraud raised by the appellant before District Consumer Forum in execution proceeding requires review of judgment which is not permissible under the Consumer Protection Act 1986. The fraud alleged by appellant cannot be said to be apparent on the face of record. The order dated 29-12-2014 has been passed ex parte and it shows that appellant did not turn out before District Consumer Forum after sufficient service of notice.

7. In view of above I am of the view that the appellant is not entitled to get benefit of above case of S.P. Chengalvaraya Naidu(Dead) by LRs. v. Jagannath (Dead) by LRs and others (supra). The appellant has opportunity to file appeal against judgment and order dated 29-12-2014 passed by the District Consumer Forum in accordance with law.

8. In view of above present appeal is disposed of finally with liberty to the appellant to file appeal against judgment and order dated 29-12-2014 passed by the District Consumer Forum in complaint case in accordance with law. NBW issued vide impugned order against appellant is set aside subject to condition that appellant shall participate in execution proceeding in accordance with law.

9. Let copy of this order be made available to the parties as per rules.