MANOJ MISRA,J. - (1.) The present revision has been filed against the order dated 18.11.2016 passed by the Special Judge (SC/ST)/Additional District Judge, Gautam Budh Nagar rejecting Application No. 153-Ga filed by the revisionists to recall /set aside the order dated 16.09.1997 passed in Execution Case No. 24 of 1997 with a further prayer to substitute the revisionists in place of deceased-decree-holder (Raghuraj Singh).
(2.) The facts giving rise to the present revision are as follows: One, Raghuraj Singh (hereinafter referred to as decree-holder) sought enhancement of compensation by way of a reference under section 18 of the Land Acquisition Act, 1906, which came to be registered as LAR No. 137 of 1995, upon which, an award dated 31.05.1995 was passed thereby providing additional compensation of about Rs. 75,000,00/- To execute the award, the decree-holder filed Execution Case No.740 of 1995 against the opposite parties 2 and 3. In this execution case, an application was moved by Ghanshyam Das (opposite party no.1) for substitution in place of decree-holder on the strength of an assignment deed dated 27.12.1995 (registered on 04.01.1996). Before the substitution application could be dealt with, the Execution Case No.740 of 1995 was dismissed for non-prosecution vide order dated 24.01.1997. Thereafter, on 12.03.1997, a second Execution Case No. 24 of 1997 was filed by the decree-holder. In this second execution case, the opposite party no.1 again filed an application for substitution in place of the decree-holder on the strength of the aforesaid assignment deed. On this substitution application, on 16.09.1997, in the presence of counsel for the parties including counsel for the decree-holder, on the basis of no objection given by the decree-holder to allow the substitution application, by placing reliance on a decision of the Apex Court in the case of U.P. Jal Nigam, Lucknow v. Kalra Property (Pvt. Ltd.) : AIR 1996 SC 1170 , the substitution application was allowed and the execution application was amended accordingly by substituting Ghanshyam Das (opposite party no.1) in place of Raghuraj Singh the original decree-holder. Soon thereafter, on 12.10.1997, Raghuraj Singh, the original decree-holder, was murdered where upon a criminal case bearing Case Crime No. 187 of 1997 at P.S. Anoop Shahr, District Bulandshar was registered in which Pankaj Singh, son of late Raghuraj Singh, was made an accused. It appears that Pankaj Singh was tried and acquitted. In the meantime, on 27.05.2000, Pankaj Singh moved an application in the pending execution proceeding to strike off the name of Ghanshyam Das (the opposite party no.1) and to substitute his own name in place of his late father Raghuraj Singh. The said application came to be rejected by order dated 28.11.2008. Against the order dated 28.11.2008, Civil Revision (Defective) No. 52 of 2009 was filed before this Court by Pankaj Singh, which came to be dismissed vide judgment and order dated 24.05.2010. While dismissing the revision preferred by Pankaj Singh, this Court had observed as follows: "As per oral and documentary evidence brought on record the execution deed of transfer is admitted to the revisionist. At the instance of his father-Raghuraj Singh on filing of written application and affidavit, the executing court has replaced Raghuraj Singh and substituted Ghanshyam Das as decree-holder vide order dated 16.07.1997. It is noteworthy that Raghuraj Singh was alive on this date. On 04.08.1997, he himself made an application supported with an affidavit before the executing court spelling out his intention that name of Ghanshyam Das be placed as an executor of the decree in his place. The executing court, after hearing the parties, taking statement of the decree-holder, passed a formal order on 16.09.1997. This order has remained unchallenged till date. The learned executing court has rightly held that the revisionist-Pankaj Singh was entitled to be substituted as decree-holder" Against the judgment and order of this Court a special leave to appeal petition was filed which was rejected by the Apex Court. Upon dismissal of claim set up by Pankaj Singh, the revisionists, who are mother and sister respectively of Pankaj Singh, on 07.09.2011, filed application (paper no.153 Ga), purportedly, under Order 22, Rule 12 read with Section 151 C.P.C., to recall/ set aside the order dated 16.09.1997 and to substitute them in place of Raghuraj Singh for pursuing the execution proceeding of Execution Case No.24 of 1997. In the application, it was claimed that the revisionist no.1 (Smt. Jaishree Devi) was widow of late Raghuraj Singh and the revisionist no.2 (Smt. Meenakshi Singh) was his daughter. It was alleged that Raghuraj Singh was mentally and physically fit; that Ghanshyam Das (the opposite party no.1) got a fictitious/forged assignment deed prepared and by submitting forged consent of Raghuraj Singh, got himself substituted by playing fraud upon the Court and since the assignment deed had assigned a claim exceeding Rs. 76,000,00/- for a paltry sum of Rs. 1,000,00/- the assignment deed was nothing but void. It was claimed that the revisionists had no knowledge of the entire transaction and as soon as they came to know about the same, they have applied for recall of the order dated 16.09.1997 and for substitution of their name in place of Raghuraj Singh. An objection was filed refuting the allegations and by claiming that such an application was maintainable because the order dated 16.09.1997 was passed with the consent of the decree-holder and such a belated challenge to the order was legally sustainable. By the impugned order dated 18.11.2016, the court below rejected the application 153 Ga by holding that since the deed of assignment was a registered document disclosing assignment of claim for consideration of Rs. 1,000,00/-, paid by Bank Draft dated 31.12.1995, and the assignment was accepted by the decree-holder, upon which, the order dated 16.09.1997 was passed in the presence of counsel for the parties, and, thereafter, the assignee was substituted in place of the decree-holder, there remained no issue to be decided within the scope of Order 22, Rule 5 C.P.C. and as such the application was liable to be rejected.
(3.) Sri A.K. Mehrotra, learned counsel for the revisionist, has assailed the order passed by the court below on the ground that under section 47 of the Code of Civil Procedure where a question arises as to whether any person is or is the representative of a party, such question shall, for the purposes of the section, be determined by the Court. It has been submitted that the terms "representative of a party" used in sub-section (3) of section 47 of the Code has to be accorded wide interpretation and it includes an assignee /transferee of a party. Therefore, the question whether the opposite party no.1 (Ghanshyam Das) was assignee and whether the assignment deed dated 30.12.1995 was valid ought to have been decided in the execution proceeding itself as a civil suit and the objection ought to have been discarded summarily as was done by the court below. In support of the above submission he has placed reliance on: (i) a decision of the Apex Court in the case of Gangabai Gopaldas Mohata v. Fulchand, (1997) 10 SCC 387 ; (ii) another decision of the apex court in the case of Jugal Kishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 ; and (iii) a decision of the Jammu Kashmir High Court in the case of Misra Bibi v. Mohd. Hussain, AIR 2004 (J&K) 108= 2003 LawSuit (J&K) 322 (paragraph 11). It was submitted by him that the court below has at all addressed the challenge to the validity of the assignment deed which, on the face of the record, was fraudulent, inasmuch as compensation amount exceeding Rs. 75,000,00/- was assigned for a paltry sum of Rs. 1,000,00/- which was grossly inadequate. It was submitted that the assignment deed was in fact a forged document and as such void. Otherwise also, he claimed, evidences were on record to show that the assignment deed was obtained by playing fraud upon the decree-holder as regards its nature and, as such, it was void document and its cancellation was required. According to him, the court below has failed to address vital aspects of the matter. He went to the extent of submitting that the second execution application was even filed by Raghuraj Singh (the decree holder) and, in fact, fraud was played upon court therefore the court had ample power to recall its earlier order dated 16.09.1997, which was obtained by fraud. In this regard he has placed reliance on judgments of the Apex Court in the case of: (a) S.P. Chengalvaraya Naidu v. Jagannath (dead) by LR (1994) 1 SCC 1 ; and (b) Chandra Shashi v. Anil Kumar Verma (1995)1 SCC 421 . Sri A.K. Mehrotra also pointed out that from the documents on record it was established that when, in the previous execution case no. 740 of 1995, the assignment deed was set up by the opposite party no.1 (Ghanshyam Das), Raghuraj Singh (the decree-holder) had filed his objection and had challenged the assignment deed. He submitted that though the said issue could be decided in that proceeding because the said execution case was dismissed for non-prosecution but the said objection ought to have been considered to test the validity of assignment. It has been submitted that the aforesaid circumstance, coupled with the fact that fresh execution was allegedly filed by Raghuraj Singh and by his assignee (the opposite party no.1), would go to show that the assignment deed was a fraudulent act and as such any substitution made on the basis of such fraudulent deed was liable to be recalled. He further submitted that where an execution case is filed within limitation and the same remains pending, then on the death of the decree holder his heirs can seek for substitution at any time, as there is no limitation for the same. Therefore the prayer of the revisionists for substitution, even after 12 years of decree holder's death, was maintainable. In support of the above contention reliance has been placed on a decision of the apex court in the case of V. Uthirapathi v. Ashrab Ali, (1998) 3 SCC 148. In the backdrop of the above submissions, Sri Mehrotra submitted that the execution court ought to have recalled the order dated 16.09.1997 and, thereafter, should have tested the validity of the assignment deed by entertaining the application of the revisionists as a suit and, thereafter, should have determined the issue as to who were the legal representative of the deceased decree holder in exercise of power under sub-section (3) of section 47 of the Code of Civil Procedure. He has submitted that since the court below has rejected the application summarily, without adjudicating the questions raised, the order passed by the court below is liable to be set aside and the matter needs to be remanded back for fresh consideration. ;