GURUDAS B VELIP Vs. GOPAL MALU GAOKAR

JUDGEMENT

(1.) The above appeal challenges the order dated 5th December, 2006, passed by the learned Civil Judge, Senior Division at Quepem, in Special Inventory Proceedings No. 9/2003/A, whereby the application filed by the respondents at Exhibit 13 to set aside the judgment and Decree dated 10.7.2001 was allowed. In another application at Exhibit 20, to set aside the entire proceedings, was also allowed. The application for condonation of delay to file a review at Exhibit 25 also came to be allowed by the impugned order.

(2.) The brief facts of the case are that by judgment and Decree dated 10th July, 2001, the shares described in the Inventory Proceedings initiated upon the death of Narayan Gaokar and Smt. Abolem Narayan Gaonkar, were allotted as per the final schedule of partition drawn on the said day at Exhibit 10. Thereafter, an application was filed by the respondent No. 2 on 29.9.2009 to set aside the said judgment and Decree whereby the properties were inter alia allotted to the appellant herein. The said application was filed essentially on the ground that the appellant had committed a fraud by concealing the names of the legal heirs/legal representatives left by the deceased and not citing them as interested parties in the proceedings. It was further disputed that the appellant was the sole legal heir of the said deceased. The said application was objected by the appellant. The learned Judge by the impugned Order relying upon Article 771 of the Portuguese Civil Procedure Code, set aside the final judgment passed in the said Inventory Proceedings.

(3.) The learned Counsel appearing for the appellant has assailed the impugned judgment as, according to him, the applications itself were not maintainable as in view of the contentions raised in the said applications, the proper remedy for the respondents was to file a suit and not to file an application as sought to be done by the respondents herein. He further submitted that the provisions of Article 771 of the Portuguese Civil Procedure Code is not at all applicable to the facts and circumstances of the present case. He, accordingly, submitted that the impugned Order deserves to be quashed and set aside.