JUDGMENT J. C. Gupta, J.
1. Heard petitioner's counsel and learned counsel appearing for the caveator.
2. It appears that respondent No. 3 filed suit for rent ejectment against the present petitioner which was decreed ex parte on 27.10.93 as the petitioner, after filing vakalatnama and written statement did not participate in the proceedings any further. The petitioner then moved an application purporting to be under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree but the same was not also prosecuted and was dismissed in default. The decree-holder respondent No. 3 thereafter put the decree in execution, and before the executing court, the petitioner filed objections purporting to be under Section 47 of the Civil Procedure Code, inter alia, alleging that the petitioner was not the tenant in the premises in question but it was her husband who was the tenant. She further alleged that she never filed written statement nor had engaged any counsel and she also never appeared in Court nor she was served with any summons. Before the executing court, an application was also moved on her behalf that the signatures appearing on vakalatnama and the written statement be got compared with her admitted signatures. The executing Court rejected the said application and the petitioner allowed the said order to become final as she never challenged that order in any court of law. She again moved an application with the same prayer and the same has been rejected by the executing court while rejecting the objections of the petitioner filed under Section 47. C.P.C.
3. Learned counsel for the petitioner urged that great prejudice has been caused to the petitioner on account of rejection of her application for comparison of her signatures by an expert. The question of prejudice can only be considered if it is found that objections under Section 47, C.P.C. against the execution of the decree were maintainable tn law.
4. It is well-settled law that the executing court must execute the decree as it stands. It cannot question the correctness or the validity of the decree except where the decree is a nullity. The question of validity of the decree is not one in execution or about the discharge or satisfaction of the decree and can be gone into only by way of a separate suit and not in execution proceedings. A party cannot avoid execution of a decree merely on the ground that it was obtained by playing fraud upon him, because the question is not one which relates to the execution of decree but one which affects its very subsistence. Where the decree is impeached in execution proceedings as having been obtained by fraud on the judgment-debtor, Section 47, C.P.C. will not come as a bar to a suit filed for setting aside the decree.
5. 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 oh initio, while in the latter type of cases, the order would only be voidable. It is well-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. In this connection, a reference may be had to the Supreme Court decisions in the case of Indian Bank v. M. S. Satyam Fibres (India) Ltd., JT 1996 (7) SC 135 and Binoy K. Mukherji v. Mohan Lal Goenka, AIR 1950 Col 287.
6. Learned counsel for the petitioner placed reliance on the case of Urban Improvement Trust, Jodhpur v. Gokul Narain, AIR 1996 SC 1819. and argued that question of nullity of decree can be set up at any stage Including execution. There can be no dispute about this proposition. However, in the aforesaid case of Urban Improvement Trust, the decree was granted for certain benefits and the same was challenged by the judgment-debtor in the execution proceedings on the ground that the Court granting such benefits did not have jurisdiction to entertain claim. It would thus appear that in the aforesaid case decree was challenged as without Jurisdiction, null and void.
7. Reliance was also placed on the case of S. P. Chengolvaraya Naidu v. Jagannath, AIR 1994 SC 853. It was also a case where fraud was played upon the Court and in the circumstances. It was held that the preliminary decree passed earlier having been obtained by playing fraud upon the Court, was a nullity.
8. In view of the aforesaid decisions, it is thus clear that objection of the petitioner under Section 47, C.P.C. against the maintainability of the execution proceedings was itself not maintainable and if as per her case, fraud was played upon her. she was free to file a suit for getting the ex parts decree set aside on that ground.
9. Learned counsel for the petitioner argued that in the present case, decree for eviction was a nullity and was thus not executable, inasmuch as rent for not less than four months was not due on the date of service of notice of demand. A perusal of the averments made in the plaint, however, shows the position otherwise. It was clearly pleaded by the landlord and proved from the evidence on record that while purchasing the property in question in the year 1994, the right to recover arrears of rent was also assigned to the plaintiff and he was entitled to recover rent from 1.4.1990. A notice of demand was served upon the defendant-petitioner on 26.5.1992 and as per the plaintiffs case, the defendant-petitioner was in arrears of rent for more than four months on the date of service of notice of demand upon her.
10. It may not be out of place to mention here that after the ex parte decree, the petitioner's husband filed a regular suit alleging that he was the tenant in the disputed accommodation and was not liable to be evicted otherwise than in accordance with law. The said suit was dismissed holding that he could not prove that he was the tenant in the premises in question.
11. In the circumstances, the view taken by the courts below that objection under Section 47, C.P.C. could not be entertained legally in the proceedings relating to the execution of the decree is correct and the impugned orders do not call for Interference.
12. For the reasons stated above, this writ petition is dismissed in limine.