Sudhir Agarwal, J. - (1.) THIS writ petition under Article 227 of the Constitution of India is an example of gross misuse of process of law. An Original Suit No. 301 of 1966 was filed by one Dwarika Prasad Sahu wherein father of Petitioner was one of the Defendants. A preliminary decree was passed on 07.12.1966 and it was made final on 03.12.1998. A Misc. Civil Appeal No. 144 of 1996 was filed against the aforesaid order which was decided on 19th August, 2003 and thereafter execution proceedings have been initiated. In order to obstruct the aforesaid execution proceedings several other steps have been taken i.e. filing of suits for cancellation of the judgment in Original Suit No. 301 of 1966, review of the trial Court order etc. One Writ Petition No. 1385 of 2011 filed yesterday by Munna Lal Shahu has already been dismissed by this Court vide judgment dated 23rd June, 2011.
(2.) LEARNED Counsel for the Petitioner stated that present Petitioner was not a party in appeal and he has not preferred any appeal against the judgment of lower appellate Court meaning thereby he has accepted the judgment. Now the present writ petition has been filed alleging that the trial Court and first appellate Court judgments have been obtained by playing fraud and misrepresentation and therefore the District Judge ought to have referred the matter for opinion of this Court under Section 113 Code of Civil Procedure. The submission is thoroughly misconceived. If earlier appeal has already been decided and nothing is pending the question of reference under Section 113 Code of Civil Procedure does not arise at all and secondly the alleged plea of fraud is not a pure question of law but it is a plea of fact and law both and if in the earlier proceedings of original suit neither any pleadings were made nor substantiated by evidence, at this stage of execution it cannot be entertained at all. In the judgments cited by learned Counsel for the Petitioner it is clearly stated that the plea of fraud has to be raised in the initial proceedings and has to be supported by evidence and only then it can be examined.
(3.) IT is evident that all attempts has been made by the Petitioner including of filing frivolous cases to obstruct execution which otherwise has to proceed. The Petitioner is guilty of abuse of the process. In my view, this is a case which deserves to be dismissed with exemplary cost, which I quantify as Rs. 5 lacs.;