| Headnote |
Code of Civil Procedure, 1908 – Or.XXI, r.92 r/w r.94, Or.XLI, rr.27-29 –Defendants (mortgagers) failed to repay the borrowed amount, father of appellant-original plaintiff filed suit – Consent decree passed – Plaintiff filed execution petition – Judgment debtors- defendants filed objections therein that the decree was obtained by fraud – Overruled by Executing Court vide order dtd.03.03.98 – Mortgaged property sold in Court auction – High Court in appeals and revision by judgment debtors called for a report from the Principal City Civil Judge as to whether the decree was obtained by fraud – Relying thereupon and holding that the decree was obtained by fraud and thus setting it aside, the appeals and revision were allowed by impugned common judgment – On appeal by original plaintiff and auction purchaser, held: All through-out there was delay and negligence on the part of the judgment debtors in not initiating the appropriate proceedings at appropriate stage – Order dtd. 03.03.98 was not challenged by the judgment debtors till the year 2000 – By then the mortgaged property was already sold in the execution proceedings and the sale was confirmed in favour of the auction purchaser, even the sale certificate was issued and thus the sale became final in terms of Or.XXI, r.92 r/w r.94 – Further, except the averments that the decree was obtained by fraud, misrepresentation, the judgment debtors did not lead any evidence in support thereof – Mere allegation that there was a fraud, not sufficient – Also, procedure u/Or.XLI, r.27-29 was not followed by High Court while calling for the report from the Principal City Civil Judge – High Court erred in relying upon the report and holding that the decree was obtained by fraud – Impugned common judgment set aside – Fraud.Code of Civil Procedure, 1908: 997 A Or.XLI, rr.27-29 – Held: Unless and until the procedure u/Or. XLI, rr.27-29 are followed, the parties to the appeal cannot be permitted to lead additional evidence. Or.XXI, rr.89-92, 94 – Application filed to set aside court auction/sale w.r.t the subject mortgaged property – Held: It is not the case of the judgment debtors that there was any material irregularity or fraud in publishing or conducting the sale – Their objection is that the decree was obtained by fraud – Application u/Or.XXI, r.90 was rightly dismissed by the Executing Court. Fraud – Pleadings – Held: When fraud is alleged, the same is required to be pleaded and established by leading evidence – Mere allegation that there was a fraud, not sufficient. Code of Civil Procedure, 1908 – s.96, Or.XXIII, r.3, Or.XLIII, r.1(m), r.1A(2) – Appeal against consent decree – Maintainability of – Held: As per s.96(3), the appeal against the decree passed with the consent of the parties shall be barred – However, as per Or.XXIII, r.3A no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful – However, when Or.XLIII, r.1(m) came to be omitted by Act 104 of 1976, simultaneously, Or.XLIII, r.1A came to be inserted by the same Act, which provides that in an appeal against the decree passed in a suit for recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. |
