JUDGMENT
A.H. Joshi, J.
1. This is a revision application filed by the defendant who raised objection through Exh. 11 to the maintainability of the present respondent’s suit in Regular Civil Suit No. 1749 of 1995.
2. Petitioner herein had filed Regular Civil Suit No. 521 of 1979 for the relief of perpetual injunction, in which the present respondents were the defendants along with one Devidas Shivram Tambulkar.
In the said old suit, suit property was described as Plot No. 5 in Kasturba Nagar Layout which was in part of Khasra No. 7 Mouza Jaripatka, Ph. No. 11, admeasuring 60′ x 50′ = 3000 sq. feet, more particularly described in the plaint therein.
3. The defendants No. 1 and 2 therein (present respondents) filed Written Statement and claimed that they were in possession of the suit property on the basis of part performance based on agreement of sale dated 16-1-1971 executed by Devidas Shivram Tambulkar. They further pleaded that their title was perfected by two sale deeds executed by Devidas Shivram Tambulkar, and pleaded that the sale deed dated 16-2-1972 relied upon by the said plaintiff was invalid and he had no right to claim any right whatsoever on the basis of the sale deed dated 6-1-1972 through which the said plaintiff claimed to be owner and prayed for dismissal of the suit.
4. The said suit R. C. S. No. 521 of 1979 was decreed by judgment and decree dated 31-3-1989. The present respondents who were unsuccessful defendants preferred first appeal was dismissed. The District Court had observed in Para 9 of its judgment as follows:
It is pertinent to note that though the agreement dated 16-11-1971 was executed on 16-11-1971, the Sale Deed dated 10-10-1972 was executed on 10-10-1972 i.e. after 11 months time. Besides, the agreement dated 16-11-1971 was in favour of the appellant No. 2 Pundlik Dayaram Rangari only while the agreement dated 10-10-1972 is in favour of both the appellants’ recording the suit plot. Therefore, it is crystal clear that afterthought the respondent No. 2 Devidas had executed the sale deed dated 10-10-1972 in favour of the appellants though he had already executed the sale deed dated 17-2-1972 in favour of the respondent No. 1. Therefore under these circumstances in the present of sale deed dated 17-2-1972 the subsequent sale deed dated 10-10-1972 in favour of the appellants are the legal documents. The appellants are, therefore, not bona fide purchasers of the suit plot. Besides, the appellants are already allotted the plot No. 189 by Nagpur Improvement Trust. The suit plot is the plot No. 5 and, therefore, it cannot be said that the plot No. 5 is the same plot which is allotted to them by changing the plot No. 189. If the suit plot was acquired by Nagpur Improvement Trust, the appellants should have examined a witness from Nagpur Improvement Trust in support of their contentions. Therefore, it is not proved that the suit plot was acquired by Nagpur Improvement Trust and it is not in existence for execution of decree passed by the lower Court. As soon as the sale deed dated 17-2-1971 was executed in favour of the respondent No. 1, the ownership rights were created in her favour. Therefore as per the provisions of Section 48 of Transfer of Property Act, the subsequent sale deeds dated 10-10-1972 in favour of the appellants do not create ownership rights in favour of the appellants. Besides, it cannot be said that the sale deeds dated 10-10-1972 executed in favour of the appellants are in response to agreement dated 16-11-1971. Therefore, the appeal filed by the appellants has no any substance. There is no need to interfere with the findings of the lower Court.” (Quoted from page 19 of paper book)
5. The defendants present respondents preferred appeal under Section 100 of Civil Procedure Code which was registered as Second Appeal No. 105 of 1994. This appeal was dismissed by this Court by order dated 17-8-1995. Crucial observation in this Court’s order dismissing second appeal is inter alia in Para 3 reads which as follows:
Other objection raised by Shri Deshpande is that the suit plot does not remain now and the said decree is not executable. I am afraid I cannot consider this question in this second appeal as the execution proceeding is already pending.(Quoted from Page 20 of paper book)
6. The objection, referred to in first sentence of the portion quoted above is based on the plea, which was raised in first appeal as well as second appeal can be summarized as follows:
That during the pendency of suit by raising additional ground under Order 41, Rule 2 of Civil Procedure Code, the defendants 1 and 2 claimed that the suit plot No. 5 was subjected acquisition by Nagpur Improvement Trust and two new plots, Plot No. 189 and 190 of 1500 square fts., each were laid, and by lease deed dated 6-12-1989 plot No. 189 was granted in favour of the defendant No. 1 (i.e. the present respondent No. 1) and, therefore, suit was not maintainable.
7. The claim and prayers in R.C.S. No. 1749 of 1995 are that the decree passed in R.C.S. No. 521 of 1979 is nullity as the subject-matter of suit property was vested in Nagpur Improvement Trust in the year 1983 itself, and the decree cannot be executed insofar as the plot No. 189 has been validly-leased out to present plaintiff No. 1 on 6-12-1989. As a consequential relief, injunction is sought against the defendant restraining the defendant from executing the decree passed in R.C.S. No. 521 of 1979, insofar as the plot No. 189 in which the plaintiff No. 1 was in possession by virtue of lease deed dated 6-12-1989.
8. By filing application Exh. 11 in R.C.S. No. 1749 of 1995, the defendants have raised objections as follows:
(1) that the plea now raised in the suit was available, however, was not raised in the Written Statement in R.C.S. No. 521 of 1979;
(2) that the old suit was pertaining to the same subject-matter and fresh suit is not maintainable;
(3) that the suit is barred by limitation;
(4) that the acquisition in favour of the Nagpur Improvement Trust, Nagpur and further allotment in favour of the plaintiff of plot No. 189 was hit by Section 52 of the Transfer of Property Act etc., were also raised.
9. The learned Trial Judge heard and decided Exh. 11 and rejected it by order dated 28-7-1997. The defendant then filed a review application praying for review of order dated 28-7-1997. This application for review Exh. 32 was heard, decided and allowed by order dated 18-1-1997, and Exh. 11 was reopened for hearing.
10. Exh. 11 was re-heard and learned Civil Judge, Senior Division passed order below it on 4-1-2000. The learned Civil Judge, Senior Division recorded finding in Para 3 which reads as follows:
3. It may be mentioned here that the instant suit is filed for a declaration that the decree in civil suit No. 521/79 has been obtained by practising a fraud on Civil Court. Further relief of declaration that the said decree being a nullity, cannot be executed and the relief of perpetual injunction restraining the defendant from execution of the said decree. If the averments raised in the plaint is considered on its face value and also keeping in view the points of arguments raised regarding the maintainability of the suit, I am of humble opinion that in the instant suit there is mixed questions of law and facts and hence, in such circumstances the said questions cannot be decided by preliminary issue. I am fortified in taking this view from the observations reported in (1) Chopda Automobiles Finance, Hyderabad v. SK. Shabbir Sk. Noor 1995(1) Mh.LJ. 533, (2) Nagnath v. Kishan 1972 Mh.LJ. 354. (Quoted from Annexure E at Pages 45 and 46 of paper book)
11. This order dated 4-1-2000 is challenged in this revision petition.
12. The main argument which is advanced is restricted to Section 47 of Civil Procedure Code, though application Exh. 11 contained various grounds.
13. According to the learned Advocate Mr. S. P. Palshikar, as per Section 47 of Civil Procedure Code as it stands, all questions in relation to objection to executibility of a decree are required to be raised in the execution proceeding itself and this cannot be done by way of civil suit which action is specifically barred.
Learned Advocate Mr. Palshikar placed reliance on reported Judgment of Hon’ble Supreme Court Bramhadeo Chaudharty v. Rishikesh Prasad Jaiswal and Anr. .
14. In reply, learned Advocate Mr. Charde placed reliance on the following judgments:
(1) , Popat and Kotecha Property v. State Bank of India Staff Association. (2) , S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and Ors. (3) , Keepattel Bappu alias Moidunnin and Ors. v. Mugharikutty’s son Kizhakke Valappil Muhammad and Anr. (4) 1972 Mh.LJ. 304, Nagnath v. Kishan (5) , Addisons Paints and Chemicals Ltd. v. Sant Ram Parma Nand and Ors. (6) , Chandigarh Primary Co-operative Land Mortgage Bank Limited v. State of Punjab and Ors.
Learned Advocate Mr. Charde then placed reliance on commentary on Civil Procedure Code by C. K. Thakkar and has placed reliance on the questions which are commented by the learned author to be those which do not relate to the execution and therefore, cannot be gone into in an enquiry under Section 47 of Civil Procedure Code, and urged that whenever the claim in suit is that the decree in R.C.S. No. 521 of 1979 is obtained by fraud and that the decree is nullity, and this objection to the executability of decree cannot be gone into in the execution proceedings.
15. This Court has given anxious consideration to the questions agitated and submissions advanced by respective parties. This Court has perused the material placed on record as a part of paper book, and also considered the precedents cited at bar.
16. The judgment , however, is on different point though in head note it is cited as under Section 47 of Civil Procedure Code.
17. After considering entire relevant material this Court finds that the spirit underlined to Section 244 of Civil Procedure Code, 1882, has been translated with clarity in Section 47 of Civil Procedure Code and in order to eliminate further room of doubt, Sub-section (2) of Section 47 has been deleted and explanations have been substituted. The scheme is to prevent multiplicity of litigation, nevertheless, in-built limitations of the executing Court which have to be judicially recognized, have been left untouched even by amendments to Section 47 of Civil Procedure Code. The exceptions to maintainability of suit as were recognized and carved out while interpreting Section 244 of old Civil Procedure Code of 1882, as well as Section 47 of Civil Procedure Code in vogue as it stands after amendment, have not been done away.
A claim in a suit a claim that “the decree has been obtained by fraud or that the decree is nullity and is in-executable is still open for adjudication in a separate suit” emerges to be the ratio flowing from the Judgments relied upon by learned Advocate Mr. Charde. This being the settled position of law, this Court finds that it shall be of no gain to discuss the precedents relied upon by learned Advocate Mr. Charde.
18. This Court finds that the judgment relied upon by the learned Advocate Mr. Palshikar is besides the issue raised i.e. Section 47 of Civil Procedure Code.
19. In the result, the maintainability of a suit where the decree is sought to be declared as obtained by fraud, is still open for adjudication in an independent suit. In the light of this discussion, this Court finds that there is no merit in the Civil Revision Application. The order impugned cannot be held to be illegal or erroneous or unjust.
20. Rule is therefore, discharged. Parties shall bear own costs.