A C ANANTHASWAMY Vs. BORAIAH

JUDGEMENT

(1.) This appeal by special leave is filed by the legal representatives of original plaintiff, Patel Chikkahanumaiah (since deceased, against the judgment and order dated 17-12-1998 delivered by High Court of Karnataka in Regular First Appeal No. 358 of 1989 whereby the High Court has dismissed the suit bearing No. O.S. 4802/80 filed in the Court of Addl. City Civil Judge, Bangalore against Boraiah (since deceased). Respondents are the legal representatives of the said Boraiah.

(2.) The facts giving rise to this appeal are as follows:- On 26-7-1974, the said Boraiah instituted suit bearing O. S. No. 648 of 1974 for declaration and permanent injunction against Patel Chikkahanumaiah in the Court of Second Munsiff, Bangalore. On 18-8-1975, the suit was decreed in favour of Boraiah. It was an ex parte decree. On 13-6-1977, Patel Chikkahanumaiah applied for setting aside the ex parte decree under Order 9, Rule 13 of Code of Civil Procedure on account of non-service of summons. Simultaneously, on the same day, he also preferred R.A. No. 54 of 1977 against the said ex parte decree. On 8-3-1978, R.A. No. 54 of 1977 was dismissed as time barred. In the meantime, Boraiah applied for execution vide Execution Case No. 441/77. On 12-1-1979, Patel Chikkahanumaiah instituted the present suit bearing O.S. No. 7 of 1979, subsequently re-numbered as O.S. No. 4802/80, under section 9, CPC in the Court of Additional City Civil Judge (X, Bangalore, for setting aside the ex parte decree dated 18-8-1975 and for permanent injunction restraining Boraiah from executing the said decree on the ground that the said decree had been obtained by fraud and misrepresentation. It was alleged that Boraiah had deliberately failed to give proper name and address and consequently Patel Chikkahanumaiah could not be served.

(3.) By judgment and decree dated 29-5-1989, the trial Court decreed the said suit by holding that fraud had been practiced by Boraiah by not giving proper name and address of Patel Chikkahanumaiah, who was a defendant in the suit bearing No.O.S. 648/74. The trial Court also found fraud on the part of Boraiah in the service of the summons. In the circumstances, the trial Court cancelled the decree dated 18-8-1975.