How decree obtained by fraud can be cancelled or set aside?

Ans:

Introduction:

          A decree which has been obtained by fraud can be cancelled by the same court which has passed the decree and the application filed. The party need not to file a fresh suit.

For example:

          “A” obtains a decree against “B” fraudulently for the recovery of one crore rupees as damages, can get the cancellation of the said decree by filing an application to the same court. The court shall call the respective parties and will decide accordingly.

Challenging validity of Judgment:

          Judgment, decree or order can be impeached on grounds of fraud, misrepresentation or lack of jurisdiction under Section 12(2) Civil Procedure Code, 1908. Relief can be obtained by aggrieved person by application to court which passed final judgment, decree or order and not by a separate suit.

For Example:

          Separate suit on ground of fraud, Misrepresentation or lack of jurisdiction stood barred by provisions of Section 12(2) Civil Procedure Code.

Case:

          In a case reported as 1985 CLC 1788, the court held that period between date of application for certified copy of decree and date when decree actually signed would have to be excluded.

Review:

          Service tribunal can not act as a civil court after disposal of appeal and review its own order except to correct clerical or arithmetical mistakes.

Case:

          In case titled “Ghulam Khan Vs Meena” the court held that the order of Civil Judge of District Judge allowing application under Section 12(2) and setting aside order passed by him whereby appeal filed was decided as per compromise arrived at between parties was unexceptionable.

          It was further held that:

(1)  It is correct that no lengthy procedure as provided in Civil Procedure Code for necessary decision of suits is necessary for disposal of application under Section 12(2).

(2)  Order  of District Judge who had earlier decided appeal through compromise, on his satisfaction, recalled his earlier order and as such his order on application under section 12(2) suffered from no legal infirmity.

(3)  Even otherwise order of District Judge had relegated parties to their original position existing prior to decision of appeal and this being a just decision called for no interference.

Setting aside of “Ex-Parte” decree:

          The petitioner had failed in proceedings for setting aside “Ex-Parte” decree moved application under section 12(2) civil procedure code, with similar prayer claiming that decree was fraudulently obtained.

Cases:

          In a case titled, “Ahmad Hasan Vs Imdad Ali”, Supreme Court affirmed impugned order holding that provision of section 12(2) Civil Procedure Code, were not intended to be a duplication of proceedings provided for in rule 13 Order IX, Civil Procedure Code and refused leave to appeal.

          In case reported as 1987 CLC 769, the court held that defendant, duly served with summons, would be duty bound to look after case either himself or through his counsel application filed by defendant under section 12(2) civil procedure code decree passed after due service on him would not be sustainable in law.

Limitation:

          The law of limitation shall come into effect only from that point in time when a person comes in knowledge of the fraud, not before that.

For example:

          “A” obtains a decree for recovery of possession of D’s house, while “D” gets backs, he can apply to the court questioning the validity of the decree.

Exception:

          Application of tenant for setting aside ex-parte order or eviction made under section 12(2) Civil Procedure Code, which was not applicable to rent proceedings.

Object of this section:

          This section defines the litigation in a specific circle generally speaking, against every cause of action a petitioner entitled to file a suit of petition but since litigation is a proceeding before the court of competent jurisdiction so law does not allow the aggrieved party to agitate his case at any other judicial forum when petition is filed before and court litigation confined before the court.

For Example:

          “A” gets a decree for the recovery of certain amount against “B” fraudulently. “B” can get the cancellation of said decree by filing a petition before the court under section 12(2) Civil Procedure Code.

For Example:

          “A” gets a decree of recovery of possession of house against tenant “B” under misrepresentation, “B” can get the said decree cancelled by filing a petition before the court.

Conclusion:

            Section 12(2) is not retrospective in effect. It provides an advantage to a person affected by a decree obtained fraudulently instead of filing a fresh suit, a person only has to file an application to the court which passed the decree, challenging the validity of that decree.