Judgment:
ORDER
N.V. Ramana, J.
1. By this application filed under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') the petitioner prays to recall the order dated 17.10.2008 passed by this Court in C.R.P. M.P. No. 5532 of 2008 in C.R.P. (SR) No. 20935 of 2008.
2. The learned Counsel for the petitioner submits that respondent Nos. 9 and 12 who are co-purchasers of the land in dispute have tampered with the revenue records and played fraud upon the authority in obtaining orders, and since they have obtained the orders by playing fraud upon the authorities, having regard to the judgments of the apex Court in S.P. Chengalvaraya Naidu v. Jagannath : (1994) 1 SCC 1 : 1994 (1) ALT 1 (DN SC) and United India Insurance Co Ltd. v. Rajendra Singh : AIR 2000 SC 1165 : 2000 (4) ALT 14.2 (DNSC), the orders of the Joint Collector, Ranga Reddy District, which the petitioner has assailed in the revision are liable to be set aside. Hence, he prayed that the order dated 17.10.2008 passed by this Court, refusing to grant leave to prefer revision against the orders assailed therein, be recalled and the C.R.P. be heard on merits.
3. Having heard the learned Counsel for the petitioner and having regard to the facts and circumstances of the case, the following question arises for consideration:
Whether the Court in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, 1908 can recall its own order based on an application filed by the petitioner seeking to recall the order under the premise that the proceedings under challenge was obtained by the opposite party in a fraudulent manner?
4. Though the present application seeks to recall the order passed by this Court earlier, but in fact, seeks review of the said order. An application filed under Section 151 CPC cannot be treated or equated with that of an application filed for review under Order 47 Rule 1 CPC. The remedy of review of orders passed by the Courts, is provided to a party under Order 47 Rule 1 CPC. The party, who does not resort to that remedy, cannot invoke inherent powers of the Court to recall and review its own order. The question of exercising power to recall by necessary implication in order to prevent abuse of process of Court, would arise only when the opposite party had obtained an order by playing fraud upon the Court, but an application under Section 151 CPC, seeking to recall an order, based on fraud alleged to have been committed by the other party on him, certainly cannot be a ground to recall the order.
5. A similar and identical question, as is involved in the present case, came up for consideration before the apex Court on more than one occasion. In Indian Bank v. Satyam Fibres (India) (P) Ltd. : (1996) 5 SCC 550 : 1997 (4) ALT 14 (D.N.), the apex Court having considered the said question held that the Court has power to decide the question relating to fraud by recording evidence in appropriate cases, and it can recall its order. That in cases of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit or proceedings, direct the affected party to file a separate suit for setting aside the decree obtained by fraud. On the question of exercising power under Section 151 CPC or under Article 226 of the Constitution of India, the apex Court held that the power of recall is necessary for orderly administration of the Court's business. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of the Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court.
6. Relying on the above judgment and also its earlier judgment in A.R. Anthulay v. R.S. Naik : (1988) 2 SCC 602, the apex Court in Budhia Swain and Ors. v. Gopinath Deb and Ors. : (1999) 4 SCC 396, held that when the Court is misled by a party or when the Court itself commits a mistake, which prejudices a party, the Courts have inherent power to recall and set aside the order that is obtained by fraud practised upon the Court. The apex Court further held that the Court may recall the order earlier made by it, if (i) the proceedings culminating in the order suffer from inherent lack of jurisdiction which is patent; (ii) fraud or collusion have been used to obtain the judgment; (iii) there has been a mistake by the court prejudicing a party; or (iv) a judgment has been rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The apex Court further held that the power to recall the judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action or where a proper remedy in some other proceedings such as appeal was available, but not availed of, then in such a case, the power to recall the judgment will not be exercised. That a party, who has not intended to participate in the proceedings till it attains finality, has no right to question the said order at a subsequent stage on the ground that he was not a party to such proceedings. That distinction is required to be drawn between lack of jurisdiction and mere error in exercise of jurisdiction. The lack of jurisdiction leads to an irresistible conclusion that it goes to the very root of the matter as the Court has no jurisdiction to entertain such matter, and the order passed by such Court, is a nullity, and in such cases, the Court can exercise inherent power under Section 151 CPC. However, mere error in the exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed therein unless the order is set aside by a challenge in prescribed manner, and in such cases, the question of exercising the inherent jurisdiction under Section 151 CPC does not arise.
7. A Division Bench of this Court in Anita v. R. Rambilas 2002 (5) ALT 604 : 2002 (5) ALD 502 (D.B) similar question in the light of various judgments of the apex Court and other High Courts held as follows:
By reading the judgments of the apex Court, we have no hesitation in holding that the review/recall petition would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. But if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 C.P.C.
8. Thus from the proposition of law, as laid down by the apex Court and the judgment of a Division Bench of this Court, referred to supra, it is clear that there is clear distinction between fraud practised upon the Court and fraud committed by a party on the other party to the suit or proceedings. In view of the clear distinction, and having regard to the fact that it is the specific case of the petitioner that respondent Nos. 9 and 12 had played fraud upon him before the authority, I am of the considered opinion that the question of exercising power under Section 151 CPC to recall the order, based on the allegation made by the petitioner that respondent Nos. 9 and 12 had obtained order by committing fraud upon him, does not arise, and reliance placed by the petitioner on the judgments of the apex Court in S.P. Chengalvaraya Naidu v. Jagannath and United India Insurance Co. Ltd. v. Rajendra Singh, would not be of any assistance to the petitioner, inasmuch as the said decisions dealt with the question of fraud practiced upon the Court and not against a party.
9. Hence, the present application is not maintainable, and the same is accordingly dismissed.