Sabita Karmakar Borah vs Smti Jhun Jhun Kumari

Heard Mr. I. Choudhury, the learned counsel for the petitioner.

Also heard Mr. S. Biswas, the learned counsel for the respondent.

This application under Article 227 of the Constitution of India has been filed by the petitioner, namely, Ms. Sabita Karmakar Borah, impugning the order dated 06.01.2026 passed by the learned Civil Judge (Sr. Division), Sonitpur in Title Execution Case No. 3/2025.

By the impugned order, the application filed by the present petitioner under Section 47 of the Code of Civil Procedure, 1908 as well as the leave sought for from the Executing Court to adduce evidence in support of the contention raised in the application under Section 47 of the Code of Civil Procedure, 1908 was rejected.

The facts relevant for the consideration of the instant Revision Petition, in brief, are that the present respondent as plaintiff had instituted one Title Suit bearing Title Suit No. 22/2020, against the present petitioner, praying for specific performance of contract. The present petitioner contested the said suit by filing the written statement, wherein it was pleaded by the present petitioner that her signatures were obtained on blank documents and she never executed any agreement for sale with the respondent. It was also pleaded therein that the petitioner is not an educated lady.

Later on, the Trial Court on 05.04.2024 decreed the said suit on the basis of a joint compromise petition, which was numbered as Petition No. 851/2024, under Order 23 Rule 3 of the Code of Civil Procedure, 1908, wherein it was stated that the matter has been amicably settled between the parties on the basis of terms mentioned in the said petition.

Thereafter, an execution proceeding was initiated for execution of the compromise decree. The execution case was registered as Title Execution Case No. 3/2020. In the said execution proceedings, the present petitioner filed an application under Section 47 of the Code of Civil Procedure, 1908, praying for a declaration from the Executing Court that the compromise decree is vitiated by fraud and the same is not executable.

It is pertinent to mention herein that the present petitioner had also filed an application before the Executing Court, in the Title Execution Case No. 3/2025, praying for allowing her to adduce oral and documentary evidence to prove the allegation of fraud levelled by the petitioner in her application under Section 47 of the Code of Civil Procedure, 1908.

It is pertinent to mention herein that apart from the present petitioner, her father-in-law, namely, Shri Mohan Bora had also filed an application under Order 21 Rule 99/101 read with Section 47 of the Code of Civil Procedure, 1908 before the Executing Court.

Ultimately, by a common order dated 06.01.2026 passed in Title Execution No. 3/2025, the application filed by the present petitioner under Section 47 of the Code of Civil Procedure, 1908 as well as her prayer for adducing oral and documentary evidence and the petition filed by the father-in-law of the present petitioner under Order 21 Rule 99/101 read with Section 47 of the Code of Civil Procedure, 1908 were dismissed by the Executing Court. Being aggrieved by the said order of the Executing Court, the present petitioner has filed the instant Revision Petition.

Mr. I. Choudhury, the learned counsel for the petitioner has submitted that the Executing Court has erred in passing the impugned order by rejecting the application filed by the present petitioner under Section 47 of the Code of Civil Procedure, 1908. He submits that the said Court has also erred in rejecting the prayer of the present petitioner to adduce oral and documentary evidence in support of her application filed under Section 47 of the Code of Civil Procedure, 1908.

He submits that the compromise petition filed before the Trial Court, on the basis of which the compromise decree was passed by it, was obtained by playing fraud upon the petitioner by the respondent. He submits that since the petitioner is an uneducated lady and she is not conversant in English language, hence, she was not knowing as to what was written in the joint compromise petition. He submits that mere going through the contents of the compromise petition, it would reveal that when the petitioner is stated to have received only Rs. 7,60,000/-, she would not have agreed to enter into a compromise which required her to pay back Rs. 15,00,000/- to the plaintiff. He submits that the signature of the petitioner was obtained on the compromise petition by way of mis-representation. He submits that the petitioner had availed a personal loan for her medical treatment from the respondent in the year 2019 and at the time of availing that loan she also deposited the original land document with the respondent. The learned counsel for the petitioner further submits that on the day when the signatures of the petitioner was obtained on the compromise petition, she was told by the respondent that it is to facilitate the petitioner to obtain the loan from the bank by depositing original sale deed.

He further submits that the respondent took the original sale deed and the same was not yet returned back. He submits that in the application under Section 47 of the Code of Civil Procedure, 1908, the present petitioner has categorically alleged fraud and also alleged that the decree sought to be executed before the Executing Court is in nullity due to the fraud practice by the respondent for obtaining such a compromise decree.

The learned counsel for the petitioner submits that though the jurisdiction of the Executing Court is very limited, i.e., it cannot go beyond the decree, however, when it is alleged before the Executing Court that the decree is a nullity due to the fact that the fraud was played for obtaining the decree, the Executing Court can look into it and determine as to whether any fraud was played in obtaining the decree, which is sought for to be executed in the enforcement execution proceedings. He submits that the Executing Court ought not to have keep its hands off from the allegations raised by the petitioner regarding in executability of the decree due to its being nullity because of fraud played upon the Court by producing a compromise petition before it, which was obtained by fraud.

The learned counsel for the petitioner further submits that the Executing Court ought to have allowed the petitioner to adduce evidence to prove the allegation of fraud made by her in the application under Section 47 of the Code of Civil Procedure, 1908 and thereafter, should have decided the application under Section 47 of the Code of Civil Procedure, 1908 on its own merit.

He submits that the notion that the Executing Court cannot go beyond the decree, though is generally applicable and acceptable, however, same is not applicable where the allegation is made by the judgment debtor of the decree being a nullity on the ground of fraud.

He submits that the Executing Court ought to have afforded an opportunity to the petitioner to prove allegations of fraud made by her in application under Section 47 of the Code of Civil Procedure, 1908. In support of his submission, the petitioner has cited a ruling of the High Court of Karnataka in the case of “A. Muniswamy And Anr. Vs. Smt. Selvi” reported in 2002 0 Supreme (KAR) 269.

On the other hand, Mr. S. Biswas, the learned counsel for the respondent has submitted that the Executing Court has rightly dismissed the application under Section 47 of the Code of Civil Procedure, 1908 as well as the applications seeking leave to adduce oral and documentary evidence in the execution proceeding by the present petitioner to prove the allegations of fraud made by her in the application under Section 47 of the Code of Civil Procedure, 1908.

He submits that the Executing Court has rightly held that it cannot go beyond the decree and examine the validity of the same to find out as to whether it is a nullity on account of any fraud committed by someone for obtaining the decree. He submits that if fraud is alleged, the right course for her was to prefer an appeal under Order 43 Rule 1A of the Code of Civil Procedure, 1908. He submits that bar provided under Section 96(3) of the Code of Civil Procedure, 1908 is applicable only to those cases where the factum of compromise or agreement is not in dispute.

He submits that the Executing Court was correct in holding that it cannot go beyond the decree and examine as to whether the compromise decree was obtained by fraud. He, therefore, submits that the present Revision Petition may accordingly, be dismissed. In support of his submissions, the learned counsel for the respondent has cited the following rulings:

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

On perusal of the impugned order, it appears that the Executing Court dismissed the application filed by the present petitioner under Section 47 of the Code of Civil Procedure, 1908 mainly on the ground that from the averments made in said petition, it appears that the petitioner has challenged the validity and binding nature of the compromise decree itself and it was of the opinion that the Executing Court cannot go behind the decree, nor can it examine whether the decree was correctly and lawfully passed or not. It also appears that the Executing Court further observed in the impugned order that the aforesaid principle applies with greater force to a compromise decree which passed after the Court has recorded its satisfaction regarding the voluntariness and lawfulness of the compromise arrived at in between the parties.

The point to be determined in this Revision Petition is as to whether the Executing Court can look into the question of nullity of the decree on account of the allegations made by the petitioner that the decree was obtained by playing fraud by the present respondent.

For the sake of convenience, Section 47 of the Code of Civil Procedure, 1908 is reproduced herein below:

Thus, from the plain reading of the aforesaid provision, it appears that the Executing Court can, in the proceeding under Section 47 of the Code of Civil Procedure, 1908, look into the question relating to the execution, discharge or satisfaction of the decree. It cannot look into the question of legality or correctness of the decree passed by the Trial Court or the Appellate Court. It has to take the decree on its face value and take necessary steps for executing the same. The proposition that the Executing Court cannot go beyond the decree is well settled.

However, if a decree is nullity or void ab initio or passed by a Court, lacking inherent jurisdiction, the Executing Court can certainly determine such question as to whether on that account the decree becomes inexecutable. The Apex Court in the case cited by the learned counsel of the respondent, namely, Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors. (Supra) has observed that the Executing Court can allow an objection under Section 47 of the Code of Civil Procedure, 1908 to the executability of the decree, if it is found that the same is void ab initio and a nullity. The Apex Court in the case of “S.P. Chengalvaraya Naidu v. Jagannath” reported in (1994) 1 SCC 1 has observed as follows:

Thus, though, the settled legal proposition is that the Executing Court cannot go beyond the decree, however, if in an application under Section 47 of the Code of Civil Procedure, 1908, it is alleged that the decree is a nullity on account of fraud being played upon the Court, the said question has to be looked into and only after determining the said question, the Executing Court can proceed further either to go ahead with the execution with the decree or to refuse such execution on account of the decree being a nullity due to the fact that it was obtained by playing fraud upon the Court. The Executing Court cannot take its hands off from determining such a question, once such an allegation of decree being a nullity on account of fraud is alleged in an application under Section 47 of the Code of Civil Procedure, 1908, as the said question relates to the execution, discharge or satisfaction of the decree. To determine the said question, it has to give an opportunity, to the party alleging such a fraud, to establish such allegation by adducing evidence.

The submission of the learned counsel for the respondent that the petitioner could have preferred an appeal under Order 43 Rule 1A (2) of the Code of Civil Procedure, 1908 against the compromise decree and the bar contained in Section 96 (3) of the Code of Civil Procedure, 1908 would not have been applicable, or not she could have filed a petition under proviso to Rule 3 of Order 23 of the Code of Civil Procedure, 1908 to challenge the compromise is also correct. The petitioner could have taken recourse to said provisions. However, this Court is of the considered opinion that it would not preclude the petitioner from raising an objection, regarding the executability of the decree on account of its being nullity due to fraud, in an application under Section 47 of the Code of Civil Procedure, 1908. As held by the Apex Court in the case of “S.P. Chengalvaraya Naidu v. Jagannath” (Supra), that a decree obtained by playing fraud on the Court is a nullity and non est in the eye of law and such a decree can be challenged in any Court, even in collateral proceedings, hence, the same may also be questioned in an application under Section 47 of the Code of Civil Procedure, 1908 before an Executing Court once, such question is raised, the same shall have to be determined by such a Court before proceeding further.

In view of the discussions made in the foregoing paragraphs, this Court is of the considered opinion that the Executing Court erred while proceeding the impugned order in not deciding the issue raised by the petitioner in her application under Section 47 of the Code of Civil Procedure, 1908 regarding nullity of decree on account of its being obtained by fraud, holding same to be not maintainable. The Executing Court ought to have decided the contention raised by the petitioner by affording her the opportunity to adduce evidence and thereafter, proceeded with the execution case, accordingly.

As such, the impugned order, to the extent of its dismissing the application under Section 47 of the Code of Civil Procedure, 1908 filed by the present petitioner on the ground of maintainability as well the refusal by the Executing Court to allow the petitioner to adduce evidence to establish her allegations levelled in the said application is hereby set aside. The matter is remanded back to the Executing Court to decide the application filed by the petitioner under Section 47 of the Code of Civil Procedure, 1908 afresh after affording opportunities to both the sides to adduce evidence.

This CRP (IO), is accordingly, allowed in terms of the aforesaid directions.

The parties are left to bear their own cost.

Let a copy of this order be furnished to the Executing Court.