ABDUL GAFFAR Vs. COMMISSIONER AND OTHERS

JUDGEMENT

(1.) Heard counsel for the parties.

(2.) The counsel for the petitioner argues that an ex-parte decree was passed on 30.12.1980 in favour of the petitioner. On 11.8.1982 and 24.10.1983, two applications were filed seeking recall of the ex-parte decree, first was by the State Government and the second one was by the Nagar Nigam. Both the said applications came to be dismissed on 13.6.1986 and the said order has attained finality and has not been challenged in any Court of law. The counsel for the petitioner argues that on the basis of ex-parte decree, the petitioner had filed another suit in the year 1988 being Suit No. 185 of 1988, which too was decreed. The counsel for the petitioner further argues that the proceedings with regard to mutation entries in the revenue records were initiated in between the parties and in all the said proceedings reference of ex-parte decree dated 30.12.1980 was made, as such the State Government and the respondent authorities were well aware of the ex-parte decree, however, on the basis of a report of the A.D.M. dated 27.10.2001, whereby for the first time he advised that the steps be taken for recall of the ex-parte decree. An application was moved along with delay condonation application on 30th January, 2002. The Court below vide its order dated 15.4.2008, allowed the application under Section 5 of the Indian Limitation Act mainly on the ground that ex-parte order dated 30.12.1980 was obtained on the basis of documents, which prima facie appeared to be forged. He further held that in the cases where the decree is obtained by playing of fraud, Section 5 of the Indian Limitation Act will have no applicability and he thus proceeded to condone the delay. The said order dated 15.4.2008 was challenged by filing a revision, which too was dismissed vide order dated 15th May, 2008.

(3.) The counsel for the petitioner has placed reliance on the judgments of this Court in the case of [2016(133) RD 66]; Shripal Singh Chauhan and others v. Special Judge, C.B.I. Court No. 4 as well as judgment of the Supreme Court in the case of Basawaraj and Another v. Special Land Acquisition Offier ; (2013) 14 SCC 81.