KANNAIYAN Vs. PERIAMALAI

JUDGEMENT

(1.) THE appellants plaint was rejected underO.7, Rule 11, C.P.C. as barred by res judicata.

(2.) THE respondent filed a suit against the appellants for partition and separate possession. Preliminary decree was passed on 30.4.1985. THEreafter, the respondent applied for passing of final decree on 9.4.1986. THE appellants entered appearance on 16.8.1986 and filed an application to set aside the ex parte decree along with an application to condone the delay of 470 delays. According to them, even before the passing of preliminary decree, there was a Panchayat and the respondent had agreed to receive Rs.2,000 in lieu of his claim and also promised to withdraw the suit. THE appellants under the impression that the suit would be withdrawn, had not appeared in Court on the date when preliminary decree was passed. Only when they received notice of the final decree proceedings, they came to know of the fraud committed by the respondent. So they filed an application to set aside the ex parte decree. But there was a delay of 470 days which had to be condoned. THE trial Court condoned the delay. But in revision filed against that in C.R.P. No.1632 of 1988, this Court had set aside the order of the trial Court on 24.9.1993. THEreafter, the appellants filed O.S. of 1997 for a declaration that the decree is invalid on the ground of fraud. This was rejected by the District Munsif, Sirkazhi on the ground that the suit is barred by res judicata. Against that, the appellants preferred an appeal to the Principal Sub Court, Mayladuthurai who confirmed the same and therefore, this second appeal.

(3.) WHILE a decree obtained by fraud will not operate as res judicata as held by the Supreme Court in the decision referred to above, definitely the appellants cannot say that having once invited a decision regarding the case of fraud pleaded by the appellants which was found to be false, a subsequent suit on the same ground is definitely barred by res judicata. The same witnesses will have to be called in for evidence and the same documents will have to be produced before the Court and the trial Court will be called upon to decide whether the case of the Panchayat pleaded by the appellants is true or not and whether the preliminary decree had been obtained fraudulently by the respondent suppressing the panchayat despite the finding in C.R.P. No.1632 of 1988 which has become final, that there was no panchayat and that there was no fraud played by the respondent. This goes contrary to all settled principles of jurisprudence. Therefore, none of the substantial question of law raised by the appellants merit acceptance. The C.M.S.A is dismissed with costs. C.M.P.No.362 of 2001 is closed.