Text Practice Mode


created Nov 25th 2018, 05:57 by MahaveerYadav



542 words
11 completed
Consequently. I answer substantial question of law No. I that the provisions of section 13(1) of the M.P. Accommodation Control Act, would not remain in operation before the determination of provisional rent under section 13(2) of the M.P. Accommodation Control Act. In my opinion, no substantial question of law has been framed in this regard neither any such application has been filed by the appellants after admission of the appeal on 13-8-1999. The appellants  have filed an application under Order 6, Rule 17 read with section 151 of Civil Procedure Code. On 14-3-2002 which is on a belated stage. At this stage the plea cannot be accepted. The appellant has called in question legality of his conviction under section 302 of the Indian Penal Code sentenced to RI for life passed by learned Addl. Sessions Judge, Rajgarh(Biaora) in Sessions Trail No. 1/1992 judgment dated 7-12-1996. This is the appeal of the year 1997. Appellant is on bail. Neither appellant nor his Advocates are present, though, this appeal is being listed for final hearing since 2005. On 24-8-2005 appeal was asjourned because none appeared on behalf of the appellant. Thereafter it was listed on 2-2-2006. On this date, Advocate Shri Vikas Yadav sought adjournment on the ground of sickness of arguing counsel Sr. Advocated Shri Jaisingh. The appeal was adjourned for two weeks. "The respondents fraudulently  obtained a mutation in the land records on 22-1-1977. Fraud cloaks everything. Fraud avoids all judicial acts. A decree obtained by playing fraud is a nullity and it can be challenged any court, even in collateral proceedings. Hence it is open to the appellant to file a suit challenging the said fraudulent mutation against the legal heirs of the respondent, whose appeal has been abated. If the suit is filed within two months from today, it shall not be dismissed as being barred by limitation." Looking to the above principle of law and oral and documentary evidence on record, in my opinion, the respondent No. I has obtained a decree of specific performance by practicing a fraud. Hence, in such circumstances the decree is nullity, void ab initio and it cannot be executed. With regard to another objection of the learned counsel for the respondent No. I that the objection filed by the objectors before the executing Court under Order 21, Rule 97 of Civil Procedure Code was not maintainable, in opinion, the aforesaid argument is also not tenable because as submitted earlier the respondent No. i has also pleaded a relief of possession in pursuance to the decree of specific performance of the contract. In the decree it was the condition that the respondent No. 2 put a wall around the open plot. In such circumstances the decree holder will get possession of the open land after execution of decree and under Order 21, Rule 97 a stranger can claim his right in execution of decree. The Hon'ble Supreme Court in case of State of Jammu and Kashmir vs. Ghulam Mohd, Dar and another, AIR 2004 SC 510 has held as under with regard provisions of Order 21, Rule 97 of Civil Procedure Code and status of a stranger claiming his right in the decretal property: "27, There is a fallacy in the above reasoning.  

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