JUDGMENT
S.J. Mukhopadhaya, J.
Page 837
1. The joint petition (I.A. No. 654 of 2006) for substitution has been preferred on behalf of (1) Ram Niranjan Agrawal; (2) Vinod Kumar Agrawal; (3) Lal Chandra Agrawal; (4) Santosh Kumar Agrawal; (5) Ashok Kumar Agrawal; (6) Shyam Sundar Agrawal and (7) Sunil Kumar Agrawal. It is stated that they are the heirs and legal representatives of the original petitioner, Prahlad Rai Munka, who died during the pendency of the writ petition on 27th April, 2005 leaving them behind. Prayer has been made to delete the name of original petitioner and in his place, to substitute the names of heirs and legal representatives.
2. Learned Counsel for the respondents have no objection in regard to the substitution of the heirs and legal representatives of the original petitioner but raised objection with regard to maintainability of the writ petition and prayed to dismiss the case on some other grounds.
3. Having heard the counsel for the parties, it is ordered to delete the name of the original petitioner, Prahlad Rai Munka and to substitute the aforesaid 7 persons as petitioner Nos. 1 to 7, who have already appeared and filed Vakalatnama.
4. I.A. No. 654 of 2006 stands disposed of.
5. This writ petition has been preferred by the original petitioner against the order dated 25th February, 2004 passed by Recovery Officer, Debts Recovery Tribunal, Jharkhand, Ranchi in R.P. Case No. 186/2002. By the said order, the 2nd respondent ordered to attach the immovable property having area of 8 kathas 10 Chhataks and Page 838 30 square feet situated at village Hesal P.S. Sukhdeonagar, District-Ranchi bearing Thana No. 202, Khewat No. 4, Khata No. 122, R.S. Plot No. 1151 (part), corresponding to M.S. Plot No. 142/D1 and 142/D2, Holding No. 591/4, under Ward No. 1B. He also challenged the order dated 3rd September, 2004 passed by the Presiding Officer, Debts Recovery Tribunal, Ranchi in M.A. case No. 28/2004
6. Under Section 26(2) of Recovery of Debts Due to the Banks and Financial Institution Act, 1993 (hereinafter referred to as the ‘Act, 1993’), whereby and whereunder, the petition preferred by petitioner for withdrawal of the recovery certificate was rejected.
7. The main plea taken by the petitioner was that the so-called mortgage immovable property, in question, belonged to him and he is the original owner.
8. The 6th respondent, Allahabad Bank, Ranchi has appeared and opposed the writ petition on the ground that there is an alternative remedy and other grounds. However, such submission was disputed by the counsel for the petitioner on the ground that there is no such remedy available with him as he was not a party to the original proceeding. It was submitted that the petitioner has not taken any loan from the Bank nor is a guarantor. He has not mortgaged his immovable property, in question, and for that, the order of attachment was bad.
9. Learned Counsel for the petitioner relied on the decision of the Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath and Ors. . In the said case, the Supreme Court held that the principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One, who comes to the court, must come with clean hands. A person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. Reliance was also placed on the decision of the Supreme Court in Dadu Dayal Mahasabha v. Sukhdev Arya and Anr. , wherein the Supreme Court held that a court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties. The distinction in cases between fraud practiced upon the court and fraud practised upon a party, as was discussed in the case of Sadho Saran Rai v. Anant Rai reported in AIR 1923 Pat. 483, was also noticed. It was submitted that the 3rd respondent is the lonee but he has not explained as to why he has not repaid the loan amount. The Bank have also not come with clean hand as to why they have not asked the Tribunal to take step against the lonee and instead are pressing the matter of auction sale of immovable property, in question, which belonged to the petitioner.
10. Counsel for the Bank requested to dismiss the writ petition, the petitioner having suppressed the material facts that he has already filed a Title Suit No. 7/04 in the court of Sub-Judge-I, Ranchi, wherein he has prayed for adjudication of right, title and interest over the property, in suit, i.e. the immovable property, in question. Apart from declaration of title, prayer has been made to confirm his possession. It was submitted that the petitioner has alternative remedy Under Section 30 of the Act, 1993 against the order dated 25th February, 2004 and he may also prefer an appeal Under Section 20 against the order dated 3rd September, 2004 passed in M.A. case No. 28/2004.
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11. From the fact pleaded by petitioner, it appears that there is a dispute as to whether the immovable property, in question, belonged to the petitioner or the person mortgaged the same. Such issue cannot be determined by this Court under Article 226 of the Constitution of India and a suit in this regard seems to be pending.
12. So far as other issue is concerned, the petitioner being a party in M.A. case No. 28/2004, can avail alternative remedy against the impugned order dated 3rd September, 2004. In fact, the earlier order dated 25th February, 2004 merged with the subsequent order passed on 3rd September, 2004.
13. In view of such remedy available, this Court is not inclined to interfere with the impugned order under writ jurisdiction. The petitioner may avail the same. This writ petition is dismissed.