1. This appeal is filed challenging the judgment and decree dated 9.11.2004 passed in O.S.No.7082/1995 on the file of the VIII Additional City Civil
Judge, Bengaluru City (CCH-15).
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
Brief facts of the case:
3. It is the case of the appellants/defendant Nos.1 and 2 that the father of the defendant Nos.1 and 2 one Narayana Reddy S/o Gurappa died on
18.10.1992. The respondent No.1 is the plaintiff before the Court below. The respondent Nos.2 and 3 are the brothers of the appellants and they were
the defendant Nos.3 and 4 before the Court below. Respondent No.4 is the mother of the appellants and she was defendant No.5 in the said suit. It is
the contention of the defendant Nos.1 and 2 in this appeal that the plaintiff filed a suit in O.S.No.7082/1995 seeking the relief of declaration that the
judgment and decree passed in O.S.No.3245/1980 (former O.S.No.180/1978) which was passed on 30.10.1990 is null and void and unenforceable
against the plaintiff and sought for setting aside the judgment and decree. The said suit was filed on 20.10.1995 after five years of the preliminary
decree.
4. Sri Narayana Reddy, father of the appellants had a brother by name Sri Nagappa Reddy. Sri Nagappa Reddy had filed a suit against Narayana
Reddy in O.S.No.54/1959 on the file of the Civil Judge for partition and separate possession in respect of joint family properties and three items were
involved in the said suit for partition. The said suit was decreed. Thereafter, all the three schedule items were sold and the sale proceeds were divided
equally between Narayana Reddy and Nagappa Reddy pursuant to the directions in the decree in O.S.No.54/1959. Narayana Reddy got about
Rs.12,000/-. Then there was a public auction of the site by the BDA and the amount of Rs.12,000/- was utilized for the purpose of purchase of the
site bearing No.192 (Old No.4) 3rd Cross, Cambridge Layout, Ulsoor, Bangalore. The public auction by the BDA was held in the year 1962. Thus, the
BDA site became the Joint Hindu Family property in the hands of Narayana Reddy, as he got the money by the sale of his portion of certain items of
properties involved in O.S.No.54/1959. In fact, those properties had been willed in favour of the children by the grandfather Gurappa Reddy. In
Gurappa Reddy’s hands they were ancestral joint family properties.
5. Narayana Reddy without legal necessity and without there being any benefit to the estate sold the said site on 19.5.1978 in favour of the
plaintiff/respondent No.1. As the sale was not for legal necessity, the plaintiffs (appellants herein) filed a suit in O.S.No.3245/1980 against Narayana
Reddy as the defendant No.1 and defendant Nos.2, 3 and 4 being the mother and brothers of the plaintiffs and defendant No.5 being the present
plaintiff/purchaser of item No.1.
6. The said suit was contested by all the defendants including defendant No.5, i.e., the present plaintiff and he filed the written statement in the said
suit. The Court below in the said suit framed the issues based on the pleadings and thereafter, recorded the evidence and decreed the suit. The
present plaintiff who has been arrayed as defendant No.5 did not cross-examine the plaintiffs for the reasons best known to him.
The suit was decreed on 30.10.1990 granting 2/5th share in item No.1 of the schedule to the plaint in O.S.No.3245/1980. The present plaintiff has
challenged the said judgment and decree after five years of the decree. The said suit was barred by time and the same was not an exparte decree. In
fact, the plaintiff did not contest the case. However, he filed the said suit on the ground that there was a fraud. The particulars of fraud have not been
pleaded in the suit. Inspite of it, the Trial Court has granted the decree vide judgment dated 9.11.2004, which is illegal, perverse, unreasonable, unjust
and opposed to law. Hence, the present appeal is filed.
7. The main contention in the appeal is that the plaintiff (defendant No.5 in O.S.No.3245/1980) had engaged a very senior counsel Sri Y. Siddappa
before the Court below. He represented the defendant No.5 and also the defendant Nos.1 and 2, who were also the contesting defendants. Defendant
Nos.3 and 4 were represented by another senior counsel. It can never be imagined that the decree was obtained by fraud by the appellants. There is
no iota of evidence to prove the fraud. The learned Trial Judge ought not to have granted any decree. There are two types of fraud; one is intrinsic
and another is extrinsic. In order to succeed in a case like this, intrinsic fraud must be played upon the Court. The allegations do not indicate any
details of intrinsic fraud. Extrinsic fraud, if any, cannot be a ground to set aside the decree and the same is not pleaded and there are no particulars of
fraud.
8. It is further contended that the suit was filed after lapse of five years of judgment and decree. He being a party to the said previous suit, has no
locus standi to file the present suit for setting aside the judgment and decree. The very contention that the defendant Nos.1 and 2 have played fraud on
the Court is unsustainable. Certain properties were left out in the previous suit and another suit was filed for partition in O.S.No.1876/1993 and the
present suit schedule properties were not the properties in the said suit. In the previous suit, some items of properties were given up and the plaintiffs
in the said suit proceeded only against item No.1. That is not a ground to allege fraud. The Court below erroneously granted the decree on the ground
that fraud was played. The earlier judgment is not an exparte decree and even if it is an exparte decree, it has to be got set aside by filing an
application under Order 9 Rule 13 of CPC and not by alleging fraud, the details of which are not given in the present suit. The other contention is that
the suit is barred by time, because the suit is filed five years after the judgment and decree on the ground of fraud.
9. The allegation that the defendant No.1 in the said suit (O.S.No.3245/1980), Narayana Reddy assured that he will take care of the entire situation is
not proved. The allegations that Narayana Reddy and advocate Sri Y. Siddappa had assured that he need not worry and need not come to the Court
unless he gets notice, is not proved. Even if it is so, it was the duty of the plaintiff to contest the suit in a manner known to law by appearing before the
Court. For his latches, the appellants/defendant Nos.1 and 2 cannot be blamed. The very approach of the Trial Court is erroneous and the judgment
and decree has to be set aside.
10. The learned counsel for the appellants/defendant Nos.1 and 2 in his arguments vehemently contended that there is no dispute that the property
was acquired by Narayana Reddy out of the joint family funds. The Court below in the original suit discussed in detail and decreed the suit. The
plaintiff instead of invoking Order 9 Rule 13 of CPC, filed the suit making the allegation of fraud. The plaintiff in the first suit filed the written
statement but did not cross-examine the witnesses. He also did not file any appeal but filed the suit after five years. The very suit filed by the plaintiff
before the Court below is barred by limitation under Article 123 of the Limitation Act, 1963. He also admitted in the cross-examination that he has
been served with FDP notice in the year 1994 and the suit was filed in the year 1995 and also there is no merit in the said suit. Inspite of it, the Court
below has committed an error in entertaining the suit filed by the plaintiff. The suit itself is not maintainable.
11. The suit schedule property was purchased in the year 1978 when the BDA conducted public auction and the defendant No.1 in O.S.No.3245/1980
was not having any source of income to purchase the said property. The same was purchased out of the sale proceeds in which the defendant No.1
has got the share. The Court below failed to take note of the fact that the fraud has not been pleaded in the suit, but the Court presumed without any
material. The plaintiff in the cross-examination categorically admitted that the advocate told to come after the notice and the same cannot be believed
in the absence of any material. The plaintiff also admitted that he met the junior advocate of Siddappa but did not examine him. The counsel would
also contend that there was no legal necessity to sell the suit schedule property in favour of the plaintiff. The reason mentioned is to perform the
marriage of Kalavathi. But the marriage of the said Kalavathi was performed after seven years and not at the time of selling the property. Hence,
inspite of suit schedule property was available for partition, the Court below has committed an error decreeing the suit on the ground of fraud.
12. The learned counsel for the appellants/defendant Nos.1 and 2 in support of his contentions relied upon the judgment of the Hon’ble Supreme
Court in the case of SNEH GUPTA v. DEVI SARUP AND OTHERS reported in (2009) 6 SCC 1w9i4th regard to the limitation and brought to the
notice of this Court the principle laid down in the judgment referring paragraph No.59 of the judgment, he contended that if a suit is not filed within the
period of limitation, the remedy would be barred. In paragraph No.57 it is held that Article 123 of the Limitation Act is in two parts. In a case where
summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part
shall apply.
13. The counsel contended that in this case, the summons was served and also the defendants appeared through the counsel and filed the written
statement and he was aware of the proceedings and they had engaged a lawyer. He did not contest the matter and hence the question of filing the suit
after five years alleging fraud cannot be sustained. Hence, the suit is barred by limitation under Article 123 of the Limitation Act.
14. The learned counsel referring to paragraph No.65 of the judgment would contend that the onus is on the defendant to show that the application is
within time and that he had knowledge of the decree within 30 days of the application. If the defendant produces some evidence to show that the
application is within time, it is for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more
than 30 days before the date of the application.
15. In the case on hand, the plaintiff has not filed the suit within the prescribed period of limitation, as envisaged under Article 123 of the Limitation
Act.
16. The learned counsel for the appellants also relied upon the judgment of the Hon’ble Supreme Court in the case of MD. NOORUL HODA v.
BIBI RAIFUNNISA AND OTHERS reported in (1996) 7 SCC .7 R67eferring this judgment, the learned counsel brought to notice of this Court
paragraph No.6 of the judgment, wherein it is held that the question is as to whether Article 59 or Article 113 of the Schedule to the Limitation Act is
applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act had provided inter alia for suits to be set aside decree obtained by
fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted.
Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be
applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a
party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract
between the inter se parties.
17. There is no pleading in the suit that there was a fraud. The suit is filed after five years and the same is also barred under the Limitation Act.
Article 113 of the Schedule to the Limitation Act is not applicable to the case on hand, as contended by the respondent.
18. The learned counsel for the appellants also relied upon the judgment of the Hon’ble Supreme Court in the case of PRAKASH CHANDER
MANCHANDA AND ANOTHER v. SMT. JANKI MANCHANDA reported in AIR 1987 S.C R 4e2ferring this judgment he would contend that
the plaintiff ought to have filed the application under Order 9 Rule 13 of CPC to set aside the judgment and decree of the lower Court and the same
has not been done.
19. The learned counsel for the appellants also relied on the judgment of the Hon’ble Supreme Court in the case of MAHABIR SINGH v.
SUBHASH AND OTHERS reported in (2008) 1 SCC 3.5 R8eferring this judgment, the counsel brought to the notice of this Court paragraph Nos.6
and 8 of the judgment. In paragraph No.8, it is held that the period of limitation would, thus, be reckoned from that day of his knowledge. As the
application under Order 9 Rule 13 of the CPC was filed one-and-a-half years after the first respondent came to know about passing of the exparte
decree in the suit, the said application evidently was barred by limitation.
20. The counsel referring this judgment would contend that it is admitted in the cross-examination that he has received the notice in the FDP also and
the application is not filed within the time. The suit was filed after one year one month after his knowledge. Hence, the suit is liable to be dismissed on
the ground of limitation.
21. The learned counsel also relied on the judgment of the Hon’ble Supreme Court in the case of RABINDRA SINGH v. FINANCIAL
COMMISSIONER, COOPERATION, PUNJAB AND OTHERS reported in (2008) 7 SC.C B 6r6in3ging to the notice of this Court paragraph
No.19 of the judgment, the learned counsel contended that the suit itself is not maintainable. The plaintiff can file an application for setting aside the
exparte decree; file a suit stating that service of notice was fraudulently suppressed; prefer an appeal and file an application for review and not to file
the suit for setting aside the judgment and decree.
22. The learned counsel also relied on the judgment of the Hon’ble Supreme Court in the case of BHIVCHANDRA SHANKAR MORE v.
BALU GANGARAM MORE AND OTHERS passed in Civil Appeal No.4669/2 a0n1d9 brought to the notice of this Court paragraph No.10 of the
judgment, wherein it is held that a conjoint reading of Order 9 Rule 13 of CPC and Section 96(2) of CPC indicates that the defendant who suffered an
exparte decree has two remedies: (i) either to file an application under Order 9 Rule 13 of CPC to set aside the exparte decree to satisfy the Court
that summons were not duly served or those served, he was prevented by “sufficient cause†from appearing in the Court when the suit was called
for hearing; (ii) to file a regular appeal from the original decree to the first appellate court and challenge the exparte decree on merits.
23. The same has not been done by the plaintiff. Hence, the plaintiff ought to have invoked Order 9 Rule 13 of CPC or Section 96(2) of CPC. Hence,
the suit itself is not maintainable.
24. The learned counsel for the appellants relied on the judgment of the Hon’ble Supreme Court in the case of PARIMAL v. VEENA ALIAS
BHARTI reported in (2011) 3 SCC 545.
Referring this judgment he brought to the notice of this Court paragraph No.12 of the judgment, wherein it is held that an exparte decree against a
defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from
appearing when the suit was called on for hearing.
25. The same has not been done by the plaintiff and there is no explanation as to what prevented him from not appearing before the Court. Hence, the
Trial Court ought not to have entertained the suit of the plaintiff.
26. Per contra, the learned counsel for the respondent No.1/plaintiff in his arguments vehemently contended that in order to substantiate the case of
the plaintiff that fraud was committed by the defendant Nos.1 and 2, brought to the notice of this Court that written statement was filed by the
defendant Nos.1 and 2 and defendant No.5 by the very same counsel Sri Y. Siddappa. The very contention of the appellants/defendant Nos.1 and 2 in
the appeal that Article 123 of the Limitation Act is applicable, cannot be accepted. Article 113 of the Limitation Act is applicable to the case on hand.
The defendants themselves have admitted in the written statement and also in the affidavit that limitation is for a period of three years and now cannot
contend that Article 123 is applicable to the case on hand. The other contention of the counsel appearing for the plaintiff is that the suit is filed for the
relief of partition not only in respect of item No.1 of the suit schedule property but also in respect of other item Nos.2 to 8. The defendants got
dismissed the suit in respect of other items of the suit schedule property and only adjudicated the matter in respect of item No.1 of the suit schedule
property, which was purchased by the plaintiff. No permission was sought while deleting other items of the suit schedule property reserving right to
claim in respect of item Nos.2 to 8 and subsequently they have filed one more suit in the year 1993 in respect of other items of property and the same
also came to be dismissed. RFA is filed against the judgment of dismissal of the suit which was filed by the defendants for the relief of partition.
27. The counsel for the respondent No.1 relied upon paragraph Nos.22, 26 and 39 of the judgment of the Hon’ble Supreme Court in the case of
A.V. PAPAYYA SASTRY AND OTHERS v. GOVT. OF A.P. AND OTHERS reported in (2007) 4 SCC .2 2In1 paragraph No.22, the Apex
Court has held that it is settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a
nullity and non est in the eye of law. Such a judgment, decree or order â€" by the first court or by the final court â€" has to be treated as nullity by
every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
28. In paragraph No.26 of the judgment, the Apex Court has held that fraud may be defined as an act of deliberate deception with the design of
securing some unfair and undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn
proceedings stand vitiated if they are actuated by fraud. The principle of “finality of litigation†cannot be stretched to the extent of an absurdity
that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
29. In paragraph No.39 of the judgment, the Apex Court has held that once it is established that the order was obtained by a successful party by
practicing or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be
allowed to stand.
30. The learned counsel for the respondent No.1 relied upon the Division Bench judgment of this Court in the case ofG .M. MAHENDRA v. G.M.
MOHAN AND ANOTHER reported in 2010 SCC Online KAR 52 a9n1d brought to the notice of this Court paragraph No.40 of the judgment and
contended that the plaintiff in a suit for partition is required to include whole of the claim which he is entitled to make in respect of the cause of action.
But it is also open for the plaintiff to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. If the plaintiff omits
to sue in respect of or intentionally relinquishes any portion of his claim later on he cannot sue in respect of the portion so omitted or relinquished and
similarly sub-rule(3) of Order 2 also provides for the plaintiff to seek permission of the Court to institute a suit in respect of any one of the cause of
action at a future date.
31. In the case on hand, the defendant Nos.1 and 2 though included all the properties, subsequently deleted the other properties in order to commit
fraud on the plaintiff. Subsequently also filed one more suit for the relief of partition, which also came to be dismissed and RFA is pending. Hence, the
very deleting of the other properties is nothing but fraud played on the plaintiff. Hence, the judgment is aptly applicable to the case on hand.
32. The learned counsel also relied on the unreported decision of this Court in the case of ELIZABETH v. SMT. MARIYAMMA AND OTHERS
passed in R.S.A.No.466/2009 and brought to my notice paragraph Nos.15 and 18 of the judgment. In paragraph No.15 the Court has discussed that
when a suit is brought for partition of joint family property, question would be whether only certain property or properties alone can be brought for
partition or in other words, whether certain properties admittedly belonging to the joint family can be excluded in a suit for partition. In the case of Sri
Tukaram v. Sri Sambhaji and others (ILR 1998 KAR 681) ,it held that there is no partition by metes and bounds of the family properties. The present
suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the
suit which are admittedly the joint family properties.
33. Further, in paragraph No.18 of the judgment, it is held that a suit for partition would not be maintainable when filed seeking partition of alienated
item only, particularly when the joint family owned number of properties and non inclusion of all other properties belonging to the family in the plaint
would be fatal. In view of the principles laid down in this judgment, continuing the suit against the property of the plaintiff, deleting other properties is
fatal to the case of the defendants.
34. The learned counsel for the respondent No.1 also relied on paragraph Nos.11 and 21.11 of the Hon'ble Supreme Court’s judgment in the case
of ESHA BHATTACHARJEE v. MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS reported in (2013)
12 SCC 649. In paragraph No.11 of the judgment, the Court discussed with regard to the scope of Order 9 Rule 13 of CPC with regard to sufficient
cause. In paragraph No.21.11, the Apex Court held that it is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of limitation.
35. The counsel relied on the Hon'ble Supreme Court’s judgment in the case of RAM PRAKASH AGARWAL AND ANOTHER v. GOPI
KRISHAN (DEAD THROUGH LRS) AND OTHERS reported in (2013) 11 SCC 296 and brought to my notice paragraph Nos.28.3 and 28.4. In
paragraph No.28.3, it is held that in the event that an order has been obtained from the Court by playing fraud upon it, it is always open to the Court to
recall the said order on the application of the person aggrieved, and such power can also be exercised by the appellate Court.
36. In paragraph No.28.4, it is held that the Court cannot investigate such a factual issue, and in such an eventuality, a party has the right to get the
said judgment or order set aside, by filing an independent suit. Hence, the plaintiff has rightly filed the suit for setting aside the judgment and decree.
37. The learned counsel for the respondent No.1 relied on the Hon'ble Supreme Court’s judgment in the case ofM AHESH YADAV AND
ANOTHER v. RAJESHWAR SINGH AND OTHERS reported in (2009) 2 SCC a2n0d5 brought to my notice paragraph Nos.15 and 16 of the
judgment with regard to Order 9 Rule 13 of CPC. In paragraph No.15, it is held that if an application for setting aside the exparte decree was
maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an exparte decree is
passed, the defendant may have more than one remedy. He may file a suit contending that the decree was obtained fraudulently. He may file an
application under Order 9 Rule 13 of CPC for setting aside the exparte decree. He may prefer an appeal from the exparte judgment and decree. In a
given case, he may also file a review application.
38. Referring this judgment, he would contend that when the judgment and decree was obtained fraudulently, he may file the suit questioning the
judgment and decree and the same has been done in the case on hand. Hence, the judgment is aptly applicable to the case on hand.
39. The learned counsel for the respondent No.1 also relied on the judgment in the case of NARAINDAS (SINCE DECEASED) BY LRS. v.
BHAGWANDAS (SINCE DECEASED) BY LRS. AND OTHERS reported in 1993 M.P.L.J. 1005.
Referring this judgment he brought to the notice of this Court that law is settled that when an exparte decree is passed, the defendant to get rid of the
said decree can avail either of the four remedies, he may pray for review; or he may apply for setting aside of the exparte decree under Order 9 Rule
13 of CPC on the ground of existence of sufficient cause for his non-appearance or because of the non-service or defective service of summons; or
he may file an appeal; or he may also institute a suit on limited ground of fraud.
40. In the case on hand, fraud has been played and hence the plaintiff has rightly filed the suit to set aside the judgment and decree.
41. The learned counsel for the respondent No.1 also relied on the judgment of the Hon'ble Supreme Court in the case ofB HANU KUMAR JAIN v.
ARCHANA KUMAR AND ANOTHER reported in (2005) 1 SCC .7 8T7he counsel brought to the notice of this Court paragraph No.26 of the
judgment wherein it is held that when an exparte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the
exparte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in
terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result
whereof the exparte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to
Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable.
42. The learned counsel would also contend that the present case is on account of fraud played by the defendants in the suit for partition. Hence, the
remedy available to the plaintiff is not only to file a review petition, appeal and an application under Order 9 Rule 13 of CPC, but suit can also be filed
to set aside the exparte decree on the ground of fraud.
43. The counsel relying upon these judgments would contend that the Court below has considered the material available on record and rightly
proceeded and decreed the suit of the plaintiff on the ground that the defendants have played fraud and obtained the decree in respect of the property
sold in favour of the plaintiff excluding the other joint family properties. No doubt, they have filed one more suit for the relief of partition and the same
also came to be dismissed. The appeal is pending before this Court. The Court below has considered the material available on record and rightly came
to the conclusion that the decree was obtained by playing fraud and hence there are no grounds to set aside the judgment and decree and the appeal
has to be dismissed.
44. The learned counsel for the appellants in his reply arguments vehemently contended that if the plaintiff is not a party to the suit then he can file a
suit. But in the case on hand, written statement was filed and he did not contest the matter and there is an admission that he had the knowledge. When
such being the case, Article 59 and Article 123 of the Limitation Act are applicable. Hence, the suit is hopelessly barred by limitation. Hence, the
judgment and decree has to be set aside.
45. Having heard the arguments of the learned counsel for the appellants and the learned counsel for the respondents and keeping in view the
contentions of the respective parties, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in granting the judgment and decree in coming to the conclusion that the fraud has been played in
obtaining the decree and it requires interference of this Court?
(ii) Whether the Court below has committed an error in entertaining the suit on the ground of fraud and the plaintiff ought to have either filed an
application under Order 9 Rule 13 of CPC or an appeal under Section 96 of CPC against the judgment and decree and suit itself is not maintainable
and it requires interference of this Court?
(iii) Whether the Court below has committed an error in not dismissing the suit on the ground that the suit is barred by limitation and whether it
requires interference of this Court?
(iv) What order?
Point No.(i):-
46. The main contention of the appellants/defendant Nos.1 and 2 is that the Court below has committed an error in coming to the conclusion that fraud
has been committed by defendant Nos.1 and 2. In keeping the contention, this Court refers to the contents of the plaint. The main grounds urged in the
plaint is that except item No.1 of the property, the plaintiffs have withdrawn the suit claim in respect of item Nos.2 to 8, hence, the plaintiffs ought to
have sought for the relief of cancellation of the sale deed and ought to have brought all the legal heirs on record. Therefore, the suit is bad for non
joinder of necessary parties. The main contention urged in the suit is that they played fraud by withdrawing the claim against all the joint family
members and proceeded against only the third party purchaser i.e., plaintiff. The other contention is that defendant Nos.1 and 2 subsequent to
obtaining the decree against the plaintiff, they filed one more suit in O.S.No.1876/1993 after obtaining the decree by playing fraud, in so far as the
property which has been purchased by the plaintiff. The main contention of the appellants’ counsel is that the plaintiff ought to have pleaded the
fraud in the plaint itself and the same has not been done and also there is no specific allegations of fraud in the suit. The Court below, in the absence
of specific pleadings in the plaint, has committed an error in decreeing the suit on the ground of fraud.
47. Having considered the contentions urged by defendant Nos.1 and 2 and pleadings and evidence available on record, this Court has to re-appreciate
the same since this Court has got the scope of re-appreciating the question of fact and also the question of law.
48. Now this Court has to re-appreciate the evidence available on record. The plaintiff has been examined as P.W.1 and he reiterates the averments
of the plaint in his affidavit in lieu of his chief examination and he got marked the documents at Ex.P1 to Ex.P5. He was subjected to cross-
examination in so far as the fraud is concerned. It is elicited that in the partition suit, he engaged his own counsel and filed the written statement on his
behalf but he volunteers that Sri.Narayana Reddy who sold the property in his favour took complete responsibility for conducting the case on his
behalf in the said partition suit. The said Narayana Reddy himself engaged the counsel on his behalf. Narayana Reddy was also represented by the
very same counsel Siddappa. However, the plaintiff admits that he used to enquire his advocate Siddappa about the progress of the partition suit and
further, he says that the said advocate Siddappa told him not to come to Court, unless he receives the notice from the Court. He admits that after filing
his vakalath in the earlier suit, he did not attend the Court regularly but he volunteers that in the said suit his counsel told him not to attend the Court.
However, he used to contact his advocate frequently and enquire about his case. He admits that after filing the written statement, he did not attend the
Court. But he used to visit his advocate’s office once in three months and follow up the earlier case. He came to know about the decree only in
the year 1994. He also says that after filing the partition suit, he contacted Narayana Reddy and he was in touch with him for nearly about 8 to 9
years. Whenever he had an occasion to meet, he used to discuss with him. It is suggested that when the suit was pending, he intentionally did not
attend the Court and the same was denied. He also says that he came to know that both Narayana Reddy and his counsel Siddappa fell ill. He did not
contact the junior advocate of Siddappa when the advocate Siddappa and Narayana Reddy fell sick. He admits that he did not follow up with respect
to the progress of the case of Narayana Reddy when his advocate Siddappa fell sick. He further admits that he has not given any power of attorney
to Narayana Reddy to attend the partition suit on his behalf. It is suggested to him that as per the assurance given by Narayana Reddy and advocate
Siddappa, he did not attend the hearing of the partition suit.
49. The defendant No.1 in O.S.No.7082/95, examined himself as D.W.1. In his evidence, he reiterated the averments of the written statement in lieu
of his chief examination claiming that the property, which the plaintiff has purchased is the joint family property and there was an undertaking by the
plaintiff’s counsel not to proceed with the construction work. He also contended that the suit is barred by law of limitation. He was subjected to
cross-examination.
50. In the cross-examination, he admits that during 1978, when the first suit was filed for the relief of partition, he was not staying with his father and
he was residing separately since 8 years prior to that suit, as he was not in good terms with his father. It is also elicited that when he was examined in
O.S.No.3245/1980, the earlier suit for partition, he gave evidence in terms of Ex.P6. In his evidence, he has stated that he was living jointly with his
father and brothers. He admits that there was no prayer for cancellation of the sale deed executed in favour of the plaintiff in the suit. He also admits
that he has withdrawn the prayer in respect of the suit item Nos.2 to 8 in the said suit. Further, he admits that after the death of advocate Y.Siddappa,
the plaintiff did not engage the counsel and no vakalath was filed on behalf of defendant No.5 in O.S.No.3245/1980 i.e., plaintiff in O.S.No.7082/1995.
It is suggested that he has obtained the decree in O.S.No.3245/80 by playing fraud and the same was denied. He admits that the suit schedule
property of O.S.No.1876/1993 which was filed subsequently are those properties which were the subject matter of the earlier suit in O.S.No.3245/80.
He further admits that he did not take the consent of other defendants in O.S.No.3245/80 to withdraw the claim in respect of item Nos.2 to 8, but he
contended that it was not necessary. He further admits that the plaintiff has constructed the house in the suit schedule property and he is residing in
the said property.
51. Having considered the oral and documentary evidence of the plaintiff and defendants who have been examined before the Court, the plaintiff in
para Nos.10 and 11 of the plaint has categorically contended that decree was obtained by playing fraud. The plaintiff reiterated the same in his
evidence. In the cross-examination, no doubt he admits that he engaged the counsel and he did not follow up the case. Further, he admits that when
Narayana Reddy and his advocate fell ill, he did not contact the junior counsel. It is to be noted that D.W.1 in the cross-examination categorically
admits that during the year 1978, he was not staying with his father since he was not in good terms with his father and he was residing separately.
Hence, it is clear that he was not staying along with his father 8 years prior to filing of the earlier suit. But he categorically admits that in terms of
Ex.P6, in the suit in O.S.No.3245/80 he has deposed that he was living jointly with his father and brothers.
52. The first instance of fraud has been emerged in the said suit by falsely deposing that he was living along with his father and brothers inspite he
was not residing with his father and brothers since 8 years prior to filing of the suit. The other instance of the fraud is that the defendants had the
knowledge that the plaintiff and defendant Nos.1 and 2 in the earlier suit i.e., father of the D.W.1 and defendant No.2 had engaged the very same
counsel Sri. Y.Siddappa. It is also admitted that in the written statement the very same advocate has signed on behalf of defendant Nos.1 and 2 and
defendant No.5 who is the plaintiff in the present suit. Hence, it is clear that all of them have engaged the very same counsel. It is the case of the
plaintiff before the Court that Sri.Narayana Reddy who is the father of D.W.1 took responsibility to engage the counsel and he himself engaged the
counsel Sri.Y.Siddappa and got filed the written statement of the plaintiff in the said suit. It is also the case of the plaintiff that the counsel
Sri.Y.Siddappa and Sri.Narayana Reddy both of them had assured that they would take care of his case. It is pertinent to note that in the cross-
examination of P.W.1, the very counsel appearing for the defendants suggested that as per the assurance given by Narayana Reddy and Siddappa, he
did not attend the hearing of the partition suit and the same has been admitted by P.W.1. The very suggestion is clear that an assurance was given by
Narayana Reddy and Siddappa stating that his presence would be required only when the notice is issued to him and no necessity of coming to the
Court till then.
53. The other circumstances is with regard to advocate who was on record on behalf of defendant No.5 and also on behalf of defendant Nos.1 and 2
in the earlier suit is one and the same and during the pendency of the suit, he passed away and the present plaintiff did not engage any other counsel.
Except filing the written statement, he did not contest the case further. It is the specific case of the plaintiff that he came to know about the decree in
the year 1995 but he subsequently deposed and admitted that he came to know that suit came to be decreed in the year 1994. He categorically
deposed and also pleaded in the plaint that he came to know about the decree when he received the notice of FDP proceedings in the year 1994.
Nothing is elicited in the cross-examination of P.W.4 that he was having knowledge of the decree prior to 1994. Hence, it is clear that he had
knowledge in the year 1994 and also not engaged the counsel after the death of advocate Sri.Y.Siddappa and further, he categorically admits that he
does not know the death of advocate and also the death of Narayana Reddy. The said Narayana Reddy who had taken the responsibility of the
plaintiff since he had sold the property in favour of the plaintiff for valuable consideration and he also passed away.
54. The plaintiffs have filed the suit for relief of partition in respect of 8 items of the suit schedule property and subsequently, the plaintiffs in the
earlier suit by withdrawing the suit claim in respect of item Nos.2 to 8 of the suit schedule property obtained the decree in respect of property which
was sold in favour of the plaintiff herein deleting item Nos.2 to 8. This is also the another circumstance to substantiate the contention of the plaintiff
that the defendants have played fraud and obtained the decree. D.W.1 in the cross-examination categorically admits that he did not seek the consent
of other defendants in O.S.No.3245/80 to withdraw the claim in respect of item Nos.2 to 8 and he states that it was not necessary. It is to be noted
that while deleting item Nos.2 to 8 also, the plaintiffs in the earlier suit have not reserved their right and obtained the leave of the Court. It clearly
shows that only in order to obtain the decree against the plaintiff in respect of the property which has been sold in favour of him, the other items of the
suit schedule property were withdrawn. Hence, the contention of the counsel appearing for defendant Nos.1 and 2 that no fraud has been committed
cannot be accepted. The material available on record substantiate the contention of the plaintiff before the Court that the decree has been obtained in
respect of only the property which has been sold to the plaintiff.
55. Learned counsel appearing for respondent No.1 in his arguments relied upon the judgment of the Division Bench of this Court in
G.M.Mahendra’s case stated supra and referring to this judgment, he contended that plaintiff in a suit for partition is required to include whole of
the claim which he is entitled to make in respect of the cause of action. But it is also open for the plaintiff to relinquish any portion of his claim in order
to bring the suit within the jurisdiction of any Court. If the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim later
on he cannot sue in respect of the portion so omitted or relinquished and similarly sub-rule(3) of Order 2 also provides for the plaintiff to seek
permission of the Court to institute a suit in respect of any of the cause of action at a future date. This judgment is aptly applicable to the case on
hand, since I have discussed that though the suit was filed in respect of item Nos.1 to 8 and during the pendency of the suit, item Nos.2 to 8 were
deleted by retaining only the suit schedule property for the relief of obtaining the decree and not reserved their right in respect of item Nos.2 to 8 and
they have not sought any permission of the Court under sub-rule (3) of Order 2 of Code of Civil Procedure. Hence, it is nothing but fraud committed
by defendant Nos.1 and 2 in the earlier suit to obtain the decree.
56. The learned counsel also relied upon the unreported judgment of this Court passed in R.S.A. No.466/2009 in Elizbeth’s case stated supra. In
the said judgment, this Court referring to the judgment of Sri Thukaram Vs. Sri.Sambhaji and Others (ILR 1998 KAR 681) held that there is no
partition by meets and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages
and also other house properties, which have not been included in the suit which are admittedly in the joint family properties. It is further held that the
suit for partition would not be maintainable when suit is filed seeking partition of alienated item only, particularly when the joint family owned number
of properties and non inclusion of all other properties belonging to the family in the plaint would be fatal. Continuing the suit against the property of the
plaintiff, deleting other properties is fatal to the case of the defendants. In the present case also the same has been done.
57. The appellants â€" defendant Nos.1 and 2 in the appeal have also contended that the property was not sold for legal necessities and that the same
is a joint family property and Narayana Reddy has no absolute right to sell the property. It is to be noted that it is the contention of the plaintiffs in the
earlier suit that the property was sold not for any legal necessities and while filing the suit included item Nos.1 to 8 of the schedule property. The first
item of suit schedule property was sold in favour of defendant No.5. When the other properties were also there and if it is assumed that the sale made
by Narayana Reddy is not for legal necessity and when he was having his share in the family properties, the very property which has been sold in
favour of defendant No.5 in the earlier suit can be allotted to Narayana Reddy. This Court can also take note of the equity and consider the property
which has been sold in favour of defendant No.5 could be allotted in favour of Narayana Reddy. Hence, the question of granting the share in favour
of all the persons cannot be accepted. This Court, on perusal of the material available on record found that the decree was obtained by playing fraud
on the Court as well as on defendant No.5. When such being the case, the contention of the appellants cannot be accepted.
58. Having considered the principles laid down in the judgments stated supra and also considering the pleadings as well as the evidence of the
respective parties, the Court below rightly answered issued No.1 that the defendants have played fraud in the earlier suit for partition and obtained the
decree and the contention of the defendants’ counsel in this appeal that no such fraud has been committed, cannot be accepted. The material
placed before the Court and the answers elicited from the mouth of D.W.1 discloses that they played fraud and obtained the decree by deleting item
Nos.2 to 8 of the suit schedule property. The learned counsel who was on record passed away during the pendency of the suit and also defendant
Nos.1 and 2 i.e., the vendor of the plaintiff and the plaintiff herein have engaged the very same counsel. An assurance was given to the plaintiff by
both father of D.W.1 and also the counsel on record that they would take care of the suit and hence, he has not appeared in the said suit after filing of
the written statement. Non-appearance is also substantiated by the plaintiff and hence, there are no grounds to reverse the findings of the Trial Court
in respect of issue No.3 in coming to the conclusion that defendants have played fraud in obtaining the decree. Hence, I answer point No.1 in the
negative.
59. Point No.(ii):- It is the contention of the defendants in the present appeal that the Court below has committed an error in entertaining the suit on
the ground of fraud and the plaintiff ought to have either filed an application under Order 9 Rule 13 of Code of Civil Procedure or an appeal under
Section 96 of Code of Civil Procedure against the judgment and decree and suit itself is not maintainable. In support of the said contention, the
defendants’ counsel in this appeal has relied upon the judgment reported in AIR 1987 SC 42 in Prakash Chander Manchanda’s case stated
supra. Referring to this judgment, he contended that plaintiff ought to have filed the application under Order 9 Rule 13 of Code of Civil Procedure to
set aside the judgment and decree of the lower court and the same has not been done.
60. Learned counsel also relied upon the judgment reported in (2008) 7 SCC 663 in Rabindra Singh’s case stated supra and brought to my notice
paragraph No.19 of the judgment and contended that the suit itself is not maintainable. The plaintiff can file an application for setting aside the exparte
decree or file a suit stating that service of notice was fraudulently suppressed or prefer an appeal and file an application for review and not to file the
suit for setting aside the judgment and decree. The learned counsel also relied upon the unreported judgment of Hon’ble Supreme Court in Civil
Appeal No.4669/2019 in Bhivchandra Shankar More’s case stated supra and contended that conjoint reading of Order 9 Rule 13 of Code of Civil
Procedure and Section 96(2) of Code of Civil Procedure indicates that the defendant who suffered an exparte decree has two remedies of either to
file an application under Order 9 Rule 13 of Code of Civil Procedure to set aside the exparte decree to satisfy the Court that summons were not duly
served or those served, he was prevented by “sufficient cause†from appearing in the Court when the suit was called for hearing or to file a
regular appeal from the original decree to the first Appellate Court and challenge the exparte decree and the same has not been done.
61. The learned counsel also relied upon the judgment reported in (2011) 3 SCC 545 in Parimal’s case, wherein it is held that the exparte decree
against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause
from appearing when the suit was called on for hearing. In the said judgment, no doubt it is held that if the party satisfies the Court with sufficient
cause that he has been prevented and no notice had been served, then he can seek the relief either under Order 9 Rule 13 of Code of Civil Procedure
or by filing an appeal under Section 96(2) of Code of Civil Procedure. There is no dispute with regard to the principles laid down in the judgment to
invoke Order 9 Rule 13 or to file an appeal under Section 96(2) of Code of Civil Procedure when there was an exparte decree, but in the case on
hand, it is to be noted that this Court has already discussed with regard to under what circumstances the decree has been obtained by the defendants
in the earlier suit. The fraud played by the defendants has been proved and this Court while answering point No.1 comes to the conclusion that fraud
has been committed in obtaining the decree. The respondents’ counsel referred to the judgment of the Apex Court in A.V.Papayya Sastry’s
case stated supra reported in (2007) 4 SCC 221 and contended that if any judgment, decree or order is obtained by playing fraud, the same has to be
treated as nullity by every court, superior or inferior.
62. The learned counsel for respondent No.1 also brought to my notice the judgment reported in 2013 (12) SCC 649 in Esha Bhattacharjee’s case
stated supra, wherein it is held that it is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to
the technicalities of law of limitation and further brought to my notice the judgment reported in (2013) 11 SCC 296 in Ram Prakash’s case stated
supra. In the said judgment, the Apex Court held that in the event that an order has been obtained from the Court by playing fraud upon it, it is always
open to the Court to recall the said order on the application of the person aggrieved. Hence, it is clear that the principles laid down in the above
referred decision by the learned counsel for respondent No.1 aptly applicable to the case on hand. The suit can be filed if any fraud has been
committed in obtaining the judgment and decree and the said view has already been reiterated in the judgment reported in (2009) 2 SCC 205 in
Mahesh Yadav’s case, wherein the Apex Court has held that apart from the relief under Order 9 Rule 13 of Code of Civil Procedure or filing an
appeal, the party can file a suit if any fraud has been committed. The Court in Naraindas’s case stated supra reported in 1993 M.P.L.J. 1005 held
that it is settled law that when the exparte decree is passed, the defendant to get rid of the said decree can avail either of the four remedies, he may
pray for review or he may apply for setting aside of the exparte decree or he may file an appeal or he may also institute a suit on limited ground of
fraud.
63. In the case on hand, this Court has also given the finding and confirmed issue No.1 of the Trial Court while answering point No.1. Hence, the
principles laid down in the judgments referred by the respondent’s counsel are aptly applicable to the case on hand and the contention of the
defendants’ counsel in the appeal that plaintiff ought to have filed an application under Order 9 Rule 13 of Code of Civil Procedure or an appeal
under Section 96(2) of the Code of Civil Procedure cannot be accepted. The Court can entertain the suit when the decree is obtained by playing
fraud. Hence, I answer point No.2 in the negative.
64. Point No.(iii):- The contention of the learned counsel for the appellants/defendants in this appeal is that the Court below has committed an error in
not dismissing the suit on the ground that suit is barred by law of limitation. The main contention of the defendants in this appeal is that the suit was
filed by the plaintiff in the year 1995 and the decree of the previous suit was drawn in the year 1990. Hence, the suit was filed after five years of the
judgment and decree. The plaintiff was represented in the earlier suit and engaged the counsel. The plaintiff ought to have filed the application within
30 days in terms of Article 123 of the Limitation Act, 1963 and the present suit is also filed after 1 ½ years from the date of knowledge. Hence, the
suit is hopelessly barred by law of limitation. Learned counsel also referring to Article 123 and Article 59 of the Limitation Act would contend that
Articles 123 and 59 of the Limitation Act would attract but not Article 113 of the Limitation Act. Hence, the suit is barred by law of Limitation.
65. Learned counsel for the appellants in his arguments referred the decision of the Hon’ble Supreme Court reported in (2009) 6 SCC 194 in Sneh
Gupta’s case stated supra and contended that Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon
a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply.
66. In the case on hand, the summons has been served and he has been represented through counsel, but he did not contest the matter. He ought to
have filed the suit within 30 days as prescribed by the law of limitation. The learned counsel relied upon the judgment reported in (1986) 7 SCC 767 in
MD. Noorhul Hoda’s case stated supra, wherein it has been held that the question is as to whether Article 59 or Article 113 of the Schedule to
the Limitation Act is applicable to the facts of this case. Article 59 of the Schedule to the Limitation Act provides inter alia for suits to be set aside
decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in
Schedule III was attracted. Article 59 of the Schedule to the Act will govern any suit to set aside the decree either on fraud or on any other ground.
Therefore, Article 59 would be applicable to any suit to set aside the decree either on fraud or any other ground.
67. Learned counsel also relied upon the judgment reported in (2008) 1 SCC 358 in Mahabir Singh’s case stated supra and contended that the
period of limitation would, thus, be reckoned from that day of his knowledge.
68. Per contra, learned counsel appearing for the respondents would content that Article 123 or Article 59 is not applicable for the reason that the
present suit is filed making the allegation of fraud and the very judgment and decree obtained by fraud is a nullity. Further he would contend by
referring to the judgment reported in (2013) 12 SCC 649 in Esha Bhattacharjee’s case stated supra that the Court has to bear in mind that no one
gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. Learned counsel also by relying
upon the judgment reported in (2013) 11 SCC 296 in Ram Prakash’s case would contend that if any order or judgment or decree has been
obtained from the Court by playing fraud, it is always open to the Court to recall the order on the application of the person aggrieved and such power
can also be exercised by the Appellate Court. It is also held in the above referred decision that in case of fraud, the very obtaining of such judgment
and decree amounts to nullity and he may institute a suit on the ground of fraud.
69. Having considered the contentions urged by both the counsel appearing for the defendants and plaintiff, Articles 59, 113 and 123 are extracted as
under:-
SL.NO. DESCRIPTION OF PERIOD OF TIME FROM WHICH
SUIT LIMITATION PEROID BEGINS TO
RUN
59. To cancel or set aside an Three years When the facts entitling
instrument or decree or the plaintiff to have the
for the rescission of a instrument or decree
contract. cancelled or set aside or
the contract rescinded
first becomes known to
him.
113. Any suit for which no Three years When the right to sue
period of limitation is accrues.
provided elsewhere in
this Schedule.
123. To set aside a decree Thirty days The date of the decree or
passed ex prate or to where the summons or
rehear an appeal decree notice was not duly
or heard ex prate. served when the
Explanation â€" For the applicant had knowledge
purpose of this article, of the decree.
substituted service
under rule 20 of Order V
of the Code of Civil
Procedure, 1908 shall
not be deemed to be
due service.
70. Having referred Article 123 of the Limitation Act, no doubt 30 days is fixed to set aside the decree passed ex parte or to re-hear an appeal
decreed or heard ex parte. It is to be noted that the suit is filed making the allegation that fraud has been played and decree has been obtained and this
Court also given findings considering point No.1 that fraud has been played. When such being the case Article 123 cannot be invoked. This Court also
would like to refer Article 59 of the Act and the same states that to cancel or set aside an instrument or decree or for the rescission of a contract,
three years time is fixed. The provision is also very clear that when the facts entitling the plaintiff to have the instrument or decree cancelled or set
aside or the contract rescinded first become known to him.
71. Taking into consideration of the said fact, in the case on hand, it is the case of the plaintiff that he came to know about the judgment and decree in
the year 1994. Though he contended that he came to know about the decree in the year 1995, his admission is very clear that when he received the
notice from FDP proceedings, he came to know the judgment and decree and thereafter, he filed the suit. He filed the suit in the year 1995 almost
after one year and when the plaintiffs sough the relief to set aside the instrument or decree from the date of knowledge, the prescribed limitation is of
three years. It is also important to note that the main contention of the plaintiff is that Article 113 is applicable. Any suit for which no period of
limitation is provided else where in the schedule, the period of limitation is three years that is when the right to sue accrues. It is to be noted that
Article 59 and also Article 113 prescribes the period of limitation as 3 years from the date of accrual of right and also when the facts entitling the
plaintiff to have instrument or decree cancelled or set aside or the contract rescinded first become known to him. First of all in view of the judgments
of the Apex Court, if any judgment is obtained by fraud, the same is nullity. When such being the case, this Court also given findings that when the
defendants have obtained the judgment and decree by playing fraud, the period of limitation doesn’t arise since the very judgment and decree is a
nullity and nonest. The defendant in the written statement, in the evidence and so also in the affidavit of the defendants admitted the period of three
years. Now the defendants cannot contend that Article 123 is applicable.
72. Having considered the judgment and decree as nullity, the relief sought by the plaintiff to set aside the the judgment and decree and when the suit
is filed within three years on the ground of fraud from the date of knowledge, Article 123 is not applicable. The Apex Court also in the judgment
referred supra has categorically held that apart from the relief under Order 9 Rule 13 or filing of an appeal under Section 96(2) of Code of Civil
Procedure, the plaintiff can file a suit when the fraud has been attributed. In the case on hand, it is the specific contention that he came to know the
decree in the year 1994 and the defendants have also failed to prove that he had knowledge of the decree in the year 1990 itself and no material is
placed on record in support of the fact that he had knowledge prior to 1994. When such being the case, Article 113 is applicable since limitation
prescribed is of three years from the date when the right to sue accrues. In case of fraud, the question of limitation also does not arise and only when
a right to sue is accrued, the same has to be questioned and prayed to set aside the judgment and decree within three years. The plaintiff filed suit on
the ground of fraud and this Court confirmed the judgment of the Trial Court that fraud has been played in getting the decree. Hence, the very
judgment is nullity and nonest and the Court has to bear in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse
to the technicalities of law and limitation. It is always open to the Court to recall the order on the application of the person aggrieved and such power
can also be exercised by the Appellate Court and the judgment and decree amounts to nullity. Hence, the contention of the defendants in this appeal
that suit is barred by limitation cannot be accepted. Therefore, I answer point No.3 in the negative.
73. In view of the discussions made above, I pass the following:-
ORDER
The appeal is dismissed.
