1999 ALL. L. J. 62 ::(1999) 1 CivilCourtC 260 ::(1998) 2 All RentCas 568 ::1998 All CJ 2 1085 ::(1998) 34 All LR 178 ::(1998) 2 All WC 1573 ::(1999) 2 ICC 489

Allahabad High Court

Hon'ble Judge(s): J. C. Gupta , J

Civil P.C. (5 of 1908) , S.47— Objection as to execution of Decree - Maintainability - Decree obtained by playing fraud upon party - Objection as to, cannot be raised in execution. There is a marked distinction between the cases where the order or judgment is obtained by playing fraud upon the Court from those cases where fraud has been played upon a party. In the former cases judgment and order would be non est i.e. void ab initio, while in the later type of cases the order would only be voidable. It is well @page-ALJ63 settled law that every Court or Tribunal possesses an inherent power to recall its judgment or order if the same has been obtained by playing fraud upon the Court/Tribunal. However, in the cases of fraud on a party to the suit, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Where the defendant challenged the ex parte decree on ground that it was obtained by playing fraud upon him, before executing Court, such objection could not be entertained by executing Court. Proper course was to file an application for setting aside such decree, before trial court.(Para 5 8) .....