logo

This Product is Licensed to ,

Change Font Style & Size  Show / Hide
24

  •            

 
CDJ 2025 SC 1858 print Preview print Next print
Court : Supreme Court of India
Case No : Civil Appeal No(s). 12251 of 2025
Judges: THE HONOURABLE MR. JUSTICE MANOJ MISRA & THE HONOURABLE MR. JUSTICE S.V.N. BHATTI
Parties : S. Kalaimamani & Others Versus DS.S. Sudhakaran & Others
Appearing Advocates : For the Petitioners: ----- For the Respondents: -----
Date of Judgment : 27-11-2025
Head Note :-
Civil Procedure Code, 1908 - Section 96 -
Summary :-
1. Statutes / Acts / Rules / Orders Mentioned:
- Article 227 of the Constitution of India
- Section 96 of the Code of Civil Procedure, 1908 ("CPC")

2. Catch Words:
- Fraud
- Supervisory jurisdiction
- Appeal under Section 96 CPC

3. Summary:
The Supreme Court examined an appeal against a Madras High Court order that set aside a preliminary decree in a civil suit and directed parties to proceed further. The appellants argued that the High Court exceeded its jurisdiction by invoking Article 227 when an appeal under Section 96 CPC was available. The respondents contended that the decree was obtained by fraud, rendering it a nullity. The Court held that where a statutory remedy exists, the High Court must not exercise supervisory powers under Article 227. Consequently, the Supreme Court set aside the High Court’s order and directed the parties to pursue their appeals under the CPC, allowing re‑presentation of appeals within four weeks. The appeal was allowed in these terms.

4. Conclusion:
Appeal Allowed
Judgment :-

1. We have heard learned Counsel for the parties.

2. This appeal impugns judgment and order dated 14.12.2023 passed by the High Court of Judicature at Madras[High Court] in Civil Revision Petition No. 2902/2023 and CMP No. 17968/2023 by which the High Court allowed the revision and set aside the preliminary decree dated 24.08.2022 in Original Suit No. 195/2009 and gave liberty to the parties to approach the court below by taking necessary steps to proceed further in the suit in the manner known to law.

3. The short and unimpeachable submission made on behalf of the appellants is that the High Court clearly exceeded its jurisdiction by interfering with a preliminary decree passed in a regular civil suit in its supervisory jurisdiction under Article 227 of the Constitution of India when an appeal lay to the High Court under Section 96 of the Code of Civil Procedure, 1908 ("CPC").

4. The learned Counsel for the respondents, though admitted that the petitioners (respondents here) had the remedy of an appeal under Section 96 of the CPC before the High Court, claimed that since the decree was obtained by playing fraud upon the Court, and fraud vitiates all solemn proceedings, the decree being nullity could have been set at naught in any proceedings.

5. We have considered the submissions and have perused the record. We find that the ground on basis of which respondents claim that fraud was played upon the Court is debatable and, therefore, when an appeal could have been filed before the High Court under Section 96 CPC, the High Court ought not to have exercised its supervisory jurisdiction under Article 227 of the Constitution of India. Our view is fortified by various decisions of this Court holding that where a remedy lies under CPC, the High Court must desist from exercising powers under Article 227 of the Constitution[See: Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others, (2019) 9 SCC 538; Mohd. Ali v. V. Jaya, (2022) 10 SCC 477].

6. For the reason aforesaid, without entering upon the merits of the case, we deem it appropriate to set aside the order passed by the High Court and relegate the parties to avail remedy under the CPC.

7. At this stage, we have been informed that one of the parties to the suit, namely, PACE Builders (i.e. defendant No. 5 in the suit), had presented an appeal under Section 96 CPC before the High Court which was returned on account of the impugned order. Likewise, another party, namely, Ben Foundation (i.e. defendant No. 6 in the suit), claims that it could not present an appeal because of the pending proceedings before the High Court under Article 227 of the Constitution of India. They are both willing to re-present and present their respective appeals against the preliminary decree passed in Original Suit No. 195/2009.

8. In such circumstances, we deem it appropriate to observe that if PACE Builders (defendant No. 5) re-presents its appeal within four weeks from today, the same shall be entertained by the High Court by treating it as not to have been returned. Likewise, Ben Foundation (defendant No. 6) may also present its appeal along with a delay condonation application within four weeks from today. If so presented, it shall be dealt with in accordance with law.

9. This appeal is allowed in the aforesaid terms.

10. Pending application(s), if any, shall stand disposed of.
 
  CDJLawJournal