SUKESINI Vs. SAJEEV CHANDRAN

JUDGEMENT

(1.) The plaintiff in the suit is the appellant in this Second Appeal.

(2.) The suit was one for setting aside the decree and judgment in an earlier suit in respect of the suit property. The fact that the suit property belonged to the plaintiff is not in dispute. According to the plaintiff, she entrusted the title deed of the property with one Dr. K. R.Thankappan with whom she was living to enable him to raise a loan; that a few persons attempted to install a gate in front of the suit property on 15.9.2008 and that the enquiry made by the plaintiff thereafter revealed that Dr. K. R.Thankappan borrowed money from the defendant against the security of the title deed of the suit property and since Dr. K. R.Thankappan did not repay the loan, the defendant created a false agreement for sale in respect of the suit property and filed a suit as O.S.No.470 of 1992 and obtained a decree for specific performance in respect of the suit property. It is alleged by the plaintiff that she did not receive summons from the court in the said suit and pursuant to the ex parte decree obtained by the defendant, he got the sale deed of the property executed through the process of the court. It is specifically alleged by the plaintiff in the suit that she came to know of the suit and the decree only on 17.9.2008. According to the plaintiff, the decree obtained by the defendant in O.S.No.470 of 1992 is not binding on the suit property as the same is vitiated by fraud and hence the suit. The defendant resisted the suit contending that the plaintiff has executed an agreement for sale in respect of the suit property on 10.4.1991 in his favour, after receiving a sum of Rs.70,000/- by way of advance sale consideration and that since the suit property was not conveyed as per the terms of the said agreement, he filed O.S.No.470 of 1992 and obtained a decree for specific performance of the agreement for sale and got delivery of the property through the process of the court in execution of the said decree. It is specifically contended by the defendant in the written statement that the plaintiff had received summons from the court in the suit filed by him and she had filed a written statement also in the suit. In other words, according to the defendant, the allegation in the plaint that the plaintiff knew about the decree and judgment in O.S.No.470 of 1992 only on 17.9.2008 is incorrect and since the plaintiff was aware of the decree and judgment in O.S.No.470 of 1992, the suit instituted in the year 2008 is barred by limitation.

(3.) The trial court considered the issue of limitation raised by the defendant as a preliminary issue and rejected the plaint invoking Rule 11(d) of Order VII of the Code of Civil Procedure ("the Code" for short) holding that the plaintiff was aware of the suit O.S.No.470 of 1992 and therefore, the suit is barred by limitation. The plaintiff though took up the matter in appeal, the appellate court confirmed the decision of the trial court. Hence this Second Appeal by the plaintiff.