THIRUMATHAL Vs. ANNAMMAL

JUDGEMENT

(1.) A third party to the suit and decree filed two applications under order 21 rule 97 of the Code of Civil Procedure (for short CPC) claiming an interest in the plaint schedule property in the suit. She is the appellant. She will be referred to as the appellant in this judgment. The respondents in the appeals are the plaintiff and defendant in the suit. They will be referred to as the plaintiff and defendant throughout. The applications of the appellant were dismissed by the execution court. She filed separate appeals. Both her appeals met dismissal. Hence she filed the second appeals.

(2.) The suit which was numbered OS 479/2009 was a suit for partition. It was filed contending that the plaint schedule property measuring 14 cents was the property of Maniyappa Kounder. He had 2 sons; Aruchami and the defendant. The plaintiff is the wife of Aruchami. The suit was compromised in the lok-adalat. The plaintiff and defendant agreed that they had one-half share each in the suit property. The lok- adalat passed an award which was agreed to be treated as the preliminary decree. The plaintiff filed F.D.I.A 1109/2010 requesting to pass a final decree. The final decree was passed. The plaintiff and defendant filed separate execution petitions to take delivery of possession of the respective properties allotted to them in the final decree. Their petitions were numbered EP 133/2014 and EP 117/2014 respectively. The appellant filed EA 294/2014 in EP 117/2014 and EA 3/2015 in EP 133/2014 claiming an interest in the properties sought to be delivered. These are admitted facts.

(3.) The contentions of the appellant go as under: A compromise decree was passed in OS 319/1968 which was a suit filed by the appellant's mother Chellathal Koundachi against Maniyappa Kounder who was the father of the defendant and the plaintiff's husband Aruchami. The plaint schedule property in OS 319/1968 included the plaint schedule property in OS 479/2009. As per the compromise decree in OS 319/1968, Chellathal Koundachi was permitted to use a cart-track through the plaint schedule property in that suit for travel and transportation of goods. Thereafter Maniyappa Kounder filed OS 336/1973 against Chellathal Koundachi and her husband Vella Kounder seeking a decree of injunction in respect of the same property excluding the cart-track. OS 336/1973 was dismissed holding that the parties to the said suit were in joint possession of the plaint schedule property therein. The appeal filed by Maniyappa Kounder as AS 53/1977 was dismissed on the same ground. Suppressing all these facts the plaintiff in collusion with the defendant filed OS 479/2009 for partition and they obtained an award from the lok- adalat fraudulently. They managed to get the final decree passed by playing fraud on the court by suppressing the decrees in OS 319/1968 and OS 336/1973 and without impleading the appellant. Therefore the preliminary decree and the final decree in OS 479/2009 are to be declared null and void, unenforceable and not binding on the appellant.