CIVIL PROCEDURE CODE, 1908 – Order XIV Rule 2; Order XXI Rules 97, 99, 101; Section 47 KERALA LAND CONSERVANCY ACT, 1957 – Section 20A FRAUD – DECREE OBTAINED BY FRAUD – CHALLENGE TO DECREE – MAINTAINABILITY OF SEPARATE SUIT – EXECUTION – JUDGMENT DEBTOR – REMEDY UNDER ORDER XXI RULES 97 & 99 CPC – PRELIMINARY ISSUE – MIXED QUESTION OF FACT AND LAW.
(2025) 7 KCD 111 : 2025 KER 51042
IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE M.A. ABDUL HAKHIM
FAO (RO) NO. 165 OF 2018
(Against the Judgment dated 11.06.2018 in AS No. 145 of 2016 of Additional District Court – VI, Kollam arising out of the Order/Judgment dated 05.03.2016 in OS No. 814 of 2009 of Additional Sub Court, Kollam)
Facts: The appellant (first defendant) challenged an order of the First Appellate Court which set aside a Trial Court’s judgment and remanded the case for fresh disposal. The original suit (O.S. No. 814 of 2009) was filed by the plaintiff (Shoukathumma @ Shoukath Beevi, later represented by legal heirs) to set aside a decree obtained against her in a prior appeal (A.S. No. 92/2002) on the grounds of fraud and collusion, to recover possession of property, and for consequential injunction. The plaintiff alleged that she was an illiterate person and was misled by the second defendant, who was entrusted with court papers and funds for the appeal, resulting in a fraudulent decree, and that she was subsequently evicted from the property.
The Trial Court dismissed the suit as not maintainable, treating it as a preliminary issue under Order 14 Rule 2(2) CPC. It found the suit barred by Order 21 Rules 97 to 103 CPC, contending that the plaintiff should have agitated her contentions before the Execution Court, and also found it barred under Section 20A of the Kerala Land Conservancy Act.
The First Appellate Court set aside the Trial Court’s judgment and remanded the matter, holding that whether the suit was barred under Order 21 Rules 97 to 103 CPC was a mixed question of fact and law and thus could not be disposed of as a preliminary issue under Order 14 Rule 2 CPC. It also found the Trial Court’s finding regarding Section 20A of the Kerala Land Conservancy Act improper for a threshold dismissal.
Issue: Whether the First Appellate Court was justified in setting aside the Trial Court’s preliminary dismissal and remanding the case, particularly on the grounds that the question of a bar under Order 21 Rules 97 to 103 CPC is a mixed question of fact and law, and that a separate suit challenging a decree on the grounds of fraud is maintainable.
Held:
The High Court affirmed that the remedy under Order 21 Rules 97 and 99 of the Civil Procedure Code, 1908, is not available to a judgment debtor, as a judgment debtor is expected to raise all contentions in the suit itself.
It was emphasized that a person who has suffered a decree can always challenge that decree on the ground of fraud by filing a separate suit, and the success of such a suit depends on proving the alleged fraud.
A suit challenging a decree on the ground of fraud and collusion does not fall within the scope of suits barred under Order 21 Rule 101 CPC.
The Court clarified that it is immaterial whether the judgment debtor resisted delivery or filed a petition under Order 21 Rule 99 CPC; a suit challenging the decree for fraud remains maintainable.
A fundamental principle reiterated was that fraud vitiates every proceeding, and consequently, a decree obtained through fraud can be challenged even in collateral proceedings.
The High Court concluded that the Trial Court was not legally correct in considering the maintainability of the suit as a preliminary issue under Order 14 Rule 2(2) CPC, especially when the central contention involved allegations of fraud and collusion in obtaining the decree, as such issues require factual determination through a full trial.
Therefore, the First Appellate Court was perfectly justified in setting aside the judgment of the Trial Court and remanding the case for fresh disposal in accordance with law.
The substantial questions of law pertaining to the bar under Order 21 Rules 97-103 CPC and the Kerala Land Conservancy Act, 1957, were deemed to be mixed questions of fact and law that require consideration by the Trial Court only after the conclusion of the trial.
Result: The First Appeal from Order (Remand Order) was dismissed without costs, thereby upholding the First Appellate Court’s decision to remand the case back to the Trial Court for fresh disposal.
