NAJMI WAZIRI, J. - (1.) THIS petition impugns an order dated 15.4.2013 whereby the Executing Court, on the objection of the respondent, has framed the following issue: "1.Whether or not the decree has been obtained by playing fraud? Onus to prove on the parties."
(2.) THE petitioner's case is that the suit was decreed in his favour vide judgement and decree dated 31.5.2005 in Suit No.463/1996. It had attained finality since the appeal against the said order was dismissed by this Court. The respondents/objectors' claim was based upon the same documents, which had already been dealt with in the earlier proceedings; that the appeal against the judgement and decree dated 31.5.2005 was confirmed in appeal by the order of the Appellate Court on 21.5.2008; that the warrants of possession for plot/property No.144 in khasra No.13/23, Guru Nanak Nagar Post Office, Tilak Nagar, Delhi were resisted by the occupants, hence it could not be executed. The three suits filed by the occupants/respondent Nos.1 to 3 were dismissed on the ground that all questions had already been decided by the executing court and their separate objections/applications before the executing/Trial Court was also dismissed on 26.9.2011; the CM (Main) preferred by the respondents against the said order was subsequently withdrawn by them on 4.1.2012.
(3.) MR . Sanjiv Bahl,the learned counsel for the petitioner, submitted that respondent No.2 preferred CM (M) No.904/2012; that the impugned order was passed despite being the matter pending before this Court, hence it ought not to have passed the impugned order and indeed went beyond the jurisdiction vested in it by law. He submits that after the judgement and decree had attained finality the executing court had no jurisdiction to frame the issue which it did, accordingly he submits that the impugned order suffers from material irregularity and ought to be set aside. In response the learned counsel for the respondents submits that there is no error in the impugned order but it only seeks to determine whether the decree had been obtained by playing a fraud. In support of his contention learned counsel relied upon the judgement in United India Insurance Co. Ltd. V. Rajender Singh and Ors., 2000 3 SCC 581 which held that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant). He further relied upon the judgement of the Supreme Court in S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs., 1994 AIR(SC) 853 wherein it was held as under: "Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Code about three centuries ago. It is the settled proposition of law that a judgment or decreed 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 higher 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." The learned counsel also relied upon the judgement in Indian Bank v/s Satyam Fibres (India) (P) Ltd. "Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order." ;