1983 Supreme(MP) 828

IN THE HIGH COURT OF MADHYA PRADESH
U.N. BHACHAWAT, J.
Jagdish Prasad – Appellant
Vs.
Nathuram – Respondent
C.R. No. 196 of 1981 (G)
Decided on : 19-09-1983

Headnote:Civil Procedure Code, 1908 – S.151 – application under – maintainability of – decree by competent Court – cannot be set aside under this provision on ground of fraud – Court becomes functus officio after passing the decree.

        Short Note

       1. After having registered the application of non – applicants No.1 to 7 as M.J.C. No. 6/1979, the Court below issued notice, amongst others, to the plaintiff – applicant also. The plaintiff – applicant inter alia, objected to the maintainability of the application under S. 151, CPC. The trial Court rejected the objection regarding the maintainability and held that the application was maintainable vide the impugned order. Hence the present revision.

       2. The argument of the learned counsel for the plaintiff – applicant is that after having passed the decree in C.S. No. 33 – A of 1979, the Court had become functus officio and, as such, it could not entertain the application under S.151 CPC for setting aside the decree that was passed. The learned counsel further submitted that the only remedy of non – applicants No.1 to 7 for setting aside the decree is by way of a separate suit on the alleged ground of fraud.

       3. Learned counsel for the non – applicants No.1 to 7 herein in his argument in counter submitted that this decree has created a cloud on the title of non – applicants No.1 to 7 and, taking advantage thereof, the mutation in the revenue papers; that was made in favour of these non – applicants, has been deleted and has been made in favour of the plaintiff – applicant, and despite this fact that the decree in Civil Suit No. 33 – A of 1979, in which these non – applicants were not a party, is not binding on them, in the interest of justice the trial Court was right in entertaining the application under S.151 CPC.

       4. Held: After having heard the learned counsel for the parties, I am of the view that the contention of the learned counsel for the plaintiff applicant deserves to be accepted with regard to the maintainability of the application under S.151 CPC for setting aside the decree in C.S. No. 33 – A of 1979, by that very Court, which had passed that decree, in fact and circumstances of the instant case.

       5. After having passed the decree in C.S. No. 33 – A of 1979, the Court had become functus officio and as such, it could not entertain the application under S.151 CPC, re – referred to hereinabove, for setting aside the decree. It is not a case where the trial Court had no jurisdiction to pass the decree in C.S. No.33 – A of 1979. Had it been so, the position would have been different, It is true that that decree is a decree in personum and not in rem and, as such, is not binding on the non – applicants No.1 to 7, but that does not create an entitlement in non – applicants No.1 to 7 to adopt the procedure, they have adopted, for setting aside the decree on the ground of fraud, and more particularly, when they were not parties to that suit.

       6. In the result, the revision succeeds and is allowed and, holding that the application filed by the non – applicants No.1 to 7 in the trial Court under S.151 CPC was not maintainable, the impugned order is set aside. No order as to costs.

       Revision allowed.