V A V BALAKRISHNA NAIDU Vs. MINOR SURESH

JUDGEMENT

(1.) AN ex parte decree in a suit for specific performance is sought to be set aside in a subsequent suit on the ground that the ex parte decree was obtained by playing fraud upon the Court.

(2.) THE appellant claimed that he had entered into an agreement for sale with the father of the respondent. THE notice issued by the appellant herein prior to filing the suit was returned unserved. THEn he filed O.S. No.486 of 1980 for specific performance. THE suit summons returned unserved. Substituted service was effected. THEreafter, an ex parte decree was passed by the Court. This was in 1981. Even in the execution proceedings notice was not received by the judgment debtor. THEreafter the Court executed the sale deed on 7.4.1983. So through out there is no proof that the father of the respondent herein was aware of the suit notice, the initiation of the suit or its culmination or the execution proceedings. It appears that in 1984, the appellant armed by the sale deed in his favour came to take possession of the suit properties, only then the respondent came to know of the decree and therefore, O.S. No.183 of 1984 was filed by him represented by his mother for cancellation of the decree in O.S. No.486 of 1980 and for possession. THE suit was decreed and the present appeal has been filed.

(3.) THERE is something not quite above board in this case. But chimeras of suspicion cannot take the place of concrete evidence. The question whether the respondent's father was of unsound mind is not really relevant to this case. Had a challenge been made on that ground in an appeal against the earlier decree, the question might have been different. The respondent claims that his father disappeared in 1980 and has not been seen since. It was reported across the Bar that even today his whereabouts are not known. But the pleadings do not show that the respondent has filed the suit as the legal representative of his father. For one thing he cannot do so because seven years had not lapsed from the date of the alleged disappearance and the date of filing of suit so the presumption of death did not arise.