SAJU GEORGE Vs. MOHAMMED SHERIF

JUDGEMENT

(1.) The additional third defendant in O.S. 49 of 2006 before the Sub Court. Ernakulam, who along with the other defendants suffered a decree is the appellant. The suit was one for declaration that the decree obtained by the first defendant in the OS. 475 of 1998 before the Sub Court, Ernakulam is vitiated by fraud and that the further proceedings in pursuance thereto are not binding on the plaintiff in the present suit.

(2.) The parties are hereinafter referred to as they are arrayed before the trial court. According to the plaintiff, he obtained the plaint schedule property as per Ext. A1 dated 16.5.1995. a partition deed in which D schedule consisting of 13 cents of land in Sy. No. 184/3 of Maradu Village was set apart to him. Ever since then, he has been in absolute possession and enjoyment of the property. The plaintiff stays in the tarwad house. The house in the property was in the name of the mother of the plaintiff and after the death of the mother it was to vest with the plaintiff. It is alleged that the brother of the plaintiff got assignment of the house from the mother to his daughter who in turn assigned the house to the first defendant. In 1996 the plaintiff obtained employment in Travancore Titanium Products and thereafter had resided at Thiruvananthapuram for attending his work. He occasionally used to come to the property to collect yield. While so in December, 2005 he got information that the property was sold in court auction. He then made enquiries and found that a false and fabricated agreement for sale between the plaintiff and the first defendant had been drawn up. As per the said agreement, the plaintiff had agreed to sell his property at Rs. 15,000/- per cent and the agreement was dated 18.2.1998 and a sum of Rs. 1,75,000/- was paid as advance. The period for execution of the sale deed was six months. The plaintiff came to know that alleging that he had not honoured the terms of the agreement, a suit for specific performance had been filed and a decree obtained. He was not aware of the agreement and subsequent proceedings. He was not in receipt of the lawyer's notice alleged to have been issued by the first defendant nor has he received any process or summons from the court regarding the institution of O.S. 475 of 1998. He had no notice of the execution proceedings also and all proceedings were taken behind his back and therefore, the decree in O.S. 475 of 1998 is not binding on him and is in fact null and void. If that be so, it is further contended that further proceedings taken in pursuance to such a fraudulent decree cannot be sustained.

(3.) The first defendant resisted the suit pointing out that the allegations lack merits. The property was brought to sale in execution of the decree in O.S. 475 of 1998 and was purchased by the first defendant. He sold it to the third defendant on 19.1.2006. The agreement which was the subject matter of O.S. 475 of 1998 was a genuine document executed by the plaintiff and advance amount was in fact paid to him. He then gives details of what transpired thereafter and when the plaintiff failed to perform his part of the contract, lawyer's notice was issued. It was returned with the endorsement no such addressee. He thereafter filed the suit. On the date when the suit was posted for return of summons, a counsel had appeared on behalf of the plaintiff and represented that he wanted to file a written statement. Thereafter there was no participation on the part of the plaintiff and he was set ex parte and an ex parte decree was passed. E.P. 318 of 2001 was filed for execution of the decree. The notice issued to the judgment debtor was returned unserved. Therefore, publication was effected in Mathrubhumi daily dated 9.10.2002. The sale was held on 29.11.2002 and certificate was issued. When the matter was posted for delivery, notice was again issued to the plaintiff which also returned unserved and publication was effected. It is thereafter that delivery was given to the first defendant and later he sold the property to the third defendant. This defendant contended that the decree in O.S. 475 of 1998 is binding and valid and there are no grounds to ignore that decree.