ARUMUGA THEVAR Vs. GOVINDA THEVAR

JUDGEMENT

(1.) DEFENDANTS 2 to 4 in O. S. No. 197 of 1967, District Munsifs Court, Devakottai, are the petitioners in this Civil Revision Petition. The 1st respondent herein and his mother, one deceased Mahamayee Ammal , instituted that suit praying for a decree for partition and separate possession of their one-third share in the A and B schedule properties to the suit. On the death of Mahamayee Ammal , respondents 2 and 3 herein, who are the sisters of the 1st respondent and daughters of deceased Mahamayee Ammal , were impleaded as defendants 21 and 22 in the suit. Consequent upon the death of the mother of the respondents herein, the 1st respondent prayed for a decree for partition of one-third share on his behalf and on behalf of respondents 2 and 3 herein. Though the suit was resisted by the petitioners and others on several grounds, on 24. 2. 1977 when the suit was posted in the special list, the petitioners were absent and were set ex parte and on the same day, a preliminary decree for partition and separate possession as prayed for by the 1st respondent was passed in the suit regarding the suit properties. In i. A. No. 457 of 1977, the petitioners herein and others prayed for the relief of seaing aside the ex parte decree passed against them on 24-2-1977 on the ground that the 1st respondent represented to them that he would inform the court that the subject matter of the dispute between the parties in O. S. No. 197 of 1967 and O. S. No. 531 of 1971 had been referred for bringing about a settlement by Panchayat to one Thettamangalam Ramanatha Thevar and therefore, the suit may be adjourned to some other dated, but he did not do so and that was responsible for their absence from Court that day. It was also their further case that there was some delay in their further case that there was some delay in their reaching the court on that day and that led to the passing of the ex parte decree. This application was resisted by the 1st respondent herein on the ground that the reasons given by the petitioners were not true and that they had what only and wilfully refrained from attending court and hence, the petition to set aside the ex parte decree was liable to be dismissed. On 20-1-1978, the learned District Munsif , Devakottai , dismissed i. A. No. 457 of 1977 holding that the reasons given by the petitioners in support of their petition to set aside the ex parte decree, were not true and that no sufficient cause for their nonappearance had also been made out. Aggrieved by this, the petitioners and others preferred C. M. A. No. 26 of 1978 before the Sub Court, Devakotta i. On 6-2-1979, the learned Subordinate Judg concurred with the conclusions of the learned District Munsif and upholding the Civil Miscellaneous Appeal. It is not now in dispute that the order in C. M. A. No. 26 of 1978, Sub Court, Devakottai , has become final, either on account of further proceedings not having been taken or such proceedings having been dismissed in limine. Thereafter, on 31-3-1982, the 1st respondent herein filed I. A. No. 879 of 1982 in o. S. No. 197 of 1967, for the appointment of a Commissioner to divide the properties in accordance with the preliminary decree and for passing a final decree, inclusive of mesne profits. In the statement of objections filed by the petitioners, they contended that the decree obtained by the 1st respondent herein in O. S. No. 197 of 1967 is a nullity, as it had been obtained by fraud and collusion. In Paragraphs 8 and 9 of the statement of objections, the petitioners stated that while negotiations for settling the disputes were going on, the 1st respondent managed to turn down the request for adjournment of the case, which was posted to 24-2-1977 and that the decree had been obtained by the 1st respondent as a result of fraud and collusion, which could be impeached under section 44 of the Indian Evidence Act. The learned district Munsif , considering the objections thus raised by the petitioners, took the view that the prior preceedings in I. A. No. 457 of 1977 culminating in the dismissal of C. M. A. No. 26 of 1978, would preclude the petitioners from raising any objection regarding the invalidity of the preliminary decree passed on 24-2-1977 in O. S. No. 197 of 1967 and appointed a Commissioner for the purpose of dividing the properties in accordance with the preliminary decree to facilitate the passing of a final decree. It is the correctness of this order, that it challenged by the petitioners in this Civil Revision Petition.

(2.) LEARNED counsel for the petitioners, relying upon section 44 of the Evidence Act, contended that it is open to the petitioners to plead the invalidity of the preliminary decree on grounds of fraud and collusion, even though they might have failed in their prior attempt to set aside the same. According to the learned counsel, the view taken by the court below that the prior proceedings in IA. No. 457 of 1977 would bar an objection being taken in this regard by the petitioners, is not correct. Reliance was placed by the learned counsel for the petitioners in this connection upon the decisions in Shewa Lachha v. Bhawarilal , A. I. R. 1973 Bom. 139; Khired Chandra v. Banshidhar , A. I. R. 1978 Orissa 111 and Vellappan v. Peter Thomas, A. I. R. 1979 Ker. 195. Per centra , learned counsel for the 1st respondent submitted that in view of the prior proceedings unsuccessfully taken by the petitioners and others in I A. No. 457 of 1977, the validity of the ex parte decree passed on 24-2-1977 had been upheld and that adjudication would constitute res judicata and the petitioners cannot therefore be permitted to invite the court at the stage of execution to go being the decree. LEARNED counsel further submitted that section 44 of the evidence Act does not confer any substantive right on the petitioners to impeach the decree, but is in the nature of an enabling provision with reference to procedure enabling a party, against whom a judgment in one proceeding is sought to be relied in evidence, in another, to show that the judgment so relied on was obtained by fraud or cellusion or rendered by a court incompetent to deliver the same and therefore, the Court cannot be invited to set aside the decree at the instance of some of the parties claiming that it was obtained by practising fraud. Counsel further pointed out that even on the assumption that section 44 of the Evidence Act would apply, the allegations of fraud and collusion set out by the petitioners are very general and vague and devoid of particulars and no decree could be set aside on such general allegations relating to fraud and collusion, without specific details and particulars. Reliance in this connection was placed by the learned counsel in Pul in Behari Dey v. Satya Charon Dey , 70 I. C. 548:a. I. R. 1923 Cal. 79 and Bishundee Narain v. See- geni Rai , A. I. R. 1951 S. C. 280: 1951 S. C. J. 413: 1951 S. C. R. 548.