The absence of explicit allegations of fraud in a Section 47 application results in dismissal, emphasizing the need for substantial claims against execution of decrees.

ORDER :

P.B.BALAJI, J.

The revision petitioner challenges an order passed in REA.No.160 of 2022, which was an application filed by the revision petitioner under Section 47 of the Code of Civil Procedure read with Section 151 of the CPC.

2. I have heard Mr.V.Raghavachari, learned Senior Counsel appearing for the revision petitioner for Mr.K.P.Pramod Kumar and Mr.R.Nalliyappan, learned counsel appearing for respondents 1 to 5.

3. The submissions of Mr.V.Raghavachari, learned Senior Counsel are that in a suit for specific performance of an agreement of sale, the sale consideration was fixed at Rs.45,000/- out of which an advance of Rs.25,000/- had been paid by the plaintiff, leaving a balance of Rs.20,000/-. Expressing readiness and willingness, the plaintiff had filed a suit for specific performance in O.S.No. 816 of 1984. According to the learned Senior counsel, the defendant was not even served with summons in the said suit and therefore, the defendant had filed O.S.No.304 of 1985, challenging the decree in O.S.No.816 of 1984. The learned Senior Counsel would harp on the conduct of the respondents, especially the mutually destructive and inconsistent stands taken, one in the plaint in the suit for specific performance and the other in the written statement filed in O.S.No. 304 of 1985. The learned Senior Counsel would therefore state that when the respondents have played fraud upon the Court and the petitioner, the Executing Court ought to have applied the well settled principles of law enunciated by the Hon'ble Supreme Court as well as this Court, holding that fraud vitiates all actions and it can be challenged even in collateral proceedings. It is therefore the submission of the learned Senior Counsel that, when the decree is questioned as being fraudulently obtained, by taking out an application under Section 47 CPC, the Executing Court should not have shut its eyes and should have independently decided the issue.

4. Taking me through the impugned order, Mr.V.Raghavachari, learned Senior Counsel would further contend that the Executing Court has not even addressed the issue of fraud that has been alleged by the revision petitioner and has erroneously dismissed the Application on irrelevant facts and circumstances. The learned Senior Counsel would further state that even though the independent suit filed by the defendant in O.S.No.816 of 1984 viz., O.S.No. 304 of 1985 was dismissed, he would contend that it was only dismissed for non- prosecution and merely because a suit has been abandoned, it will not amount to any right accruing to the adversary party in the said suit. The learned Senior Counsel would further state that the question of lis pendens will also not apply to the facts of the present case and the order of the Trial Court is liable to be interfered with.

5. The learned Senior Counsel has relied on the following decisions:

(i) A.V. Papayya Sastry and Others v. Govt of AP and Others , reported in (2007) 4 SCC 221 ;

(ii) Ram Chandra Singh v. Savitri Devi and Others , reported in (2003) 8 SCC 319 ;

(iii) Ram Chandra Singh v. Savitri Devi and Others , reported in (2003) 8 SCC 319 ;

(iv) Mr.R.Vetri and another v. The District Collector and another , in W.A.No. 2170 of 2022, dated 13.04.2023;

(v) Celir LLP v. Sumati Prasad Bafna and Others , reported in (2024) SCC OnLine 3727;

(vi) Pitamber and another v. Board of Revenue, U.P. , Allahabad and others, reported in (1998) SCC OnLine All 927;

(vii) Loke Nath Sahu v. Achutananda D