K NAINAR CHETTIAR Vs. RUSABALI

JUDGEMENT

(1.) In this civil revision petition, the fair and decreetal orders, dated 05.12.2007, passed in unnumbered I.A.No......of 2007 in O.S.No.251 of 1994, on the file of the Sub Court, Thoothukudi, are being challenged.

(2.) It is found that the respondents 1 and 2 are the plaintiffs and the respondents 3 and 4 are the defendant in the suit in O.S.No.251 of 1994. It is further found the said suit has been laid for partition. It is further found that the said suit had been contested by the defendants by filing a written statement. However, it is found that in culmination, an ex parte preliminary decree had come to be passed in the suit on 11.08.2003 and thereafter, it is found that the plaintiffs preferred I.A.No.194 of 2004 for passing a final decree in terms of the preliminary decree and accordingly, it is seen that an ex parte final decree had also come to be passed in the suit on 30.09.2005. It is further seen that the plaintiffs had levied execution proceedings in E.P.No.43 of 2006 for recovery of possession of the properties allotted to them by way of the final decree passed in the suit. While the matter stood thus, it is found that the petitioners, who are third parties to the proceedings, had preferred an application, under Order IX Rule 13 r/w Sections 146 and 151 of the Code of Civil Procedure, mainly contending that the respondents 3 and 4 / defendants, during the pendency of the suit, have alienated the first item of the third schedule properties to one Subramanian Chettiar on 22.06.2001 and accordingly, handed over the possession of the said property to the purchaser Subramanian Chettiar and thereafter, according to the petitioners, they had purchased the above said property for a valid consideration, on 05.02.2007 from Subramanian Chettiar and accordingly, he had delivered the possession of the same to them and inasmuch as the respondents 3 and 4 / defendants knew very well about the conveyance of the title of the said property to Subramanian Chettiar and in turn, Subramanian Chettiar, having conveyed the same in favour of the petitioners, the respondents 3 and 4 should have brought to the notice of the Court about the above said alienations and accordingly, sought permission of the Court to implead the petitioners in the suit proceedings, however, they had deliberately failed to take steps to implead the petitioners and on the other hand, according to the petitioners, the respondents 3 and 4 / defendants, in collusion with the respondents 1 and 2 / plaintiffs schemed to knock away the properties inclusive of the property, which the petitioners had purchased as above stated and in such view of the matter, it is stated that on account of the fraud committed by the parties involved in the suit proceedings and inasmuch as thereby the interest of the petitioners had been seriously affected and the decrees seem to have been obtained by the plaintiffs in collusion with the defendants, without bringing to the knowledge of the Court about the alienations made pendente lite, it is the case of the petitioners that a fraud has been committed by the plaintiffs and the defendants and hence, according to them, the ex parte preliminary and final decrees in the suit are liable to be set aside and hence, the petitioners had come come forward with the above said application, under Order IX Rule 13 r/w Sections 146 and 151 of the Code of Civil Procedure.

(3.) The above said application of the petitioners was returned by the Court concerned as the final decree had been passed in the suit on 30.09.2005 and further as the petitioners are not parties in the suit and to state how the application is maintainable. The petitioners had re-presented the application contending that Section 151 C.P.C., can be invoked to serve the ends of justice and also to prevent the abuse of process of the Court and inasmuch as they had purchased one of the items of the suit schedule properties as above stated pendente lite and after sale, as the defendants remained ex parte and consequently, ex parte preliminary and final decrees had come to be passed and as the decrees have come to be passed in collusion of the plaintiffs and the defendants and as the Commissioner had also failed to bring it to the notice of the Court about the petitioners' possession at the time of passing final decree, the Court had also been misled in the proceedings and hence, as fraud has been committed by the parties to the suit, according to the petitioners, the application preferred by them is maintainable as per certain decisions relied upon by them.