RAM CHANDRA SINGH versus SAVITRI DEVI AND ORS.

Citation: [2003] SUPP. 4 S.C.R. 543 · Decided: 09-10-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

RAM CHANDRA SINGH 
v. 
SA VITRI DEVI AND ORS. 
OCTOBER 9, 2003 
[V.N. KHARE, CJ. AND S.B. SINHA, J.] 
Code of Civil Procedure-Section 11-Res-judicata-Default of 
loan repayment by respondents to Bank-Decree by Trial Court in favour 
A 
B 
of the Bank-First appeal by respondents before High Court-During 
pendency of the appeal, auction sale of mortgaged lands in favour of C 
appellant in execution-Direction by High Court to pay the decretal 
amount in instalments on basis of consent between the parties-Review 
Petition by appellant before High Court on ground of suppression of 
auction sale and commission of fraud-Dismissal of review petition by 
High Court on ground of res-judicata:--Validity of-Held, is not valid D 
since the consent order was obtained on fraud and the appellant was not 
party to the appeal-Hence, remanded back to High Court for fresh 
consideration to take into account subsequent events. 
Respondent 2 had taken a loan from respondent-Bank by 
mortgaging lands admeasuring 95.20 acres. On default of repayment, E 
the Bank filed a suit before trial court claiming the loan amount with 
pendente-lite and future interest and for a preliminary decree for 
possession of the mortgaged lands. In the suit of the Bank, respondent 
1, sister of respondent 2, filed an application claiming a share in the 
mortgaged lands on the basis of a preliminary decree of the trial court F 
passed in her favour in a partition suit. The trial court passed a 
preliminary decree in favour of the Bank for the loan amount with 
pendente-lite and future interest. A preliminary decree was also passed 
for sale of the share of respondent 2 in the mortgaged lands. The trial 
court passed a fiAal decree for sale of the mortgaged lands. 
The respondent filed a First Appeal before High Court. The High 
Court allowed the First Appeal passing a consent order directing the 
respondents to pay the decretal amount to the Bank in two instalments. 
G 
On failure of the respondents to pay the decretal amount, the Bank 
filed an Execution application before the Executing court for sale of H 
543 
544 
SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R. 
A the mortgaged-lands. The trial •court .directed sale of part of the 
mortgaged lands through auction. The auction sale was confirmed by 
the Executing Court in favour of the appellant, being the highest · 
bidder, and the appellant deposited the bid-amount accordingly. The 
respondents 'filed an application (or setting aside the auction sale. The 
B application was dismissed. The appellant took possession of the auctioned 
land. The respondents filed a Revision Petition before High Court on 
the ground that the decretal amount.has been paid as per the consent 
order. The High Court allowed the revision petition and set aside the 
auction sale; 
c 
The appellant filed a Title suit for setting aside the preliminary 
decree passed by the trial court in the partition· suit in favour of 
respondent 1. The appellant also filed an application before the trial 
court in the partition suit of respondent 1 stating that the preliminary 
decree obtained by respondent 1 was collusive and fraudulent and 
D ~ence the final decree proceeding initiated is null and void; and that 
the father of respondent 2, having died in 1944, respondent 2 alone 
succeeded to the mortgaged lands as the Hindu Succession Act, 1956 
came in force much later. The trial court allowed the application of' 
E 
the appellant. 
· 
The respondents filed a Civil Revision Petition before the High 
Court. The appellant also filed a Civil Review Application before the 
High Court for revit~wing.the consent order passed in the First appeal 
filed by the respondents on the ground that the parties to the _appeal· 
F had suppressed the fact of auction sale of the mortgage lands to the 
appellant before the Court. The High C~urt a~lowed the Civil Revision 
Petition of the respondents and dismissed the Civil Review Application 
of. the appellant on the gro~nd of res-judicara. Hence these appeals. 
The appellant contended that the respondents obtained a consent 
G order from the High Courf by committing fraud on the court and 
hence cannot be allowed to take. the benefit thereof; and that the 
mortgaged lands were purchased by him in auction sale even before 
the consent order passed by the High Court in First Appeal to the 
respondents to pay the decretal ·amount to the Bank in two instalments 
H and hence the consent order is null and void. 
\ .
R.C. SIN

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