PANNAYALA VENKATASWAMY GOUD Vs. RUDRA VEERAIAH

JUDGEMENT

(1.) The unsuccessful plaintiffs who have lost in both the Courts below have come up in Second Appeal. The suit is filed for setting aside an ex parte decree dated 28-8-1969 passed in O.S.No.31 of 1969on the file of the Chief Judge, City Civil Court, Hyderabad on the ground that it was obtained by fraud and consequently to cancel the sale deed dated 23-4-1981 got executed by the defendant through Court in execution of the said decree. The facts leading to the Second Appeal may be briefly stated: The plaintiffs 1 and 2 are the sons and Plaintiff No.3 is the widow and Plaintiffs 4 to 8 are the daughters of one late Pannyala Balaiah who died on 12-4-1978. The Plaintiffs 1 and 2 and their father borrowed a sum of Rs.9,000 from the defendant who is a money lender under two promissory notes dated 9-4-1961 (Exs.B-1 and B-2). They also executed an agreement (Ex.B-3) on the same date agreeing to mortgage the properties mentioned in Schedules 1 and 2 p of the said agreement to the defendant if they fail to repay the amounts borrowed within one year. It is the case of the plaintiffs that they have subsequently discharged the entire amount borrowed by them by paying a sum of Rs.740/- which was acknowledged by the defendant in the letter Ex.A-1 and a further sum of Rs.4,580/- under Ex.A-2 receipt dated 22-4-1962 and the balance was repaid in kind as per the request of the defendant. The defendant, however, fabricated and created three more promissory notes marked as Exs.C-1, C-2 and C-3 and also an agreement dated 18-6-1967 marked as Ex.C-4 by forging their signatures. The defendant subsequently fabricated an arbitration agreement (Ex.C-8) dated 17-3-1968 purporting to refer the disputes to an arbitrator one P. Pentaiah, who was wholly unknown to the plaintiffs and who was a henchman of the defendant. The arbitrator is stated to have passed an award on 16-7-1968 (Ex.C-15). The plaintiffs were not served with any notice by the arbitrator and they have no notice of the alleged award. The defendant filed O.S. No.31 of 1969 on the file of the Chief Judge, City Civil Court, Hyderabad for making the said award rule of the Court and managed to obtain an ex parte decree dated 28-8-1969 (Ex.A-3) by suppressing notices to the plaintiff with the help of the Process Server of the Court. After keeping quiet for more than eleven years after obtaining the said decree, the defendant almost on the verge of the period of limitation, got the decree transmitted to the Court of Subordinate Judge, Sanga Reddy, Medak District. In the said Court, the defendant filed E.P. No.7 of 1981 and obtained a registered sale deed got executed by the Court in his favour on 23-4-1981 (Ex.A-4). The defendant managed to get the sale deed executed by playing fraud on the Court by managing to get an endorsement that the plaintiffs refused the notices sent to them. Thereafter, the defendant filed E.P. 21 of 1981 for delivery of possession of the lands covered by the sale deed. It is only when the Bailiff came to the village to deliver possession on 17-7-1981, the plaintiffs came to know about the fraud played by the defendant. Thereupon they filed an application being LA. No.1802 of 1981 in O.S. No.31 of 1969 to set aside the ex parte decree as per the legal advice tendered to them. They, however, withdrew the said application on 16-11-1981 and filed the present suit.

(2.) The suit was resisted by the defendant denying that any fraud was played by him and stating that the promissory notes Exs.C-1 to C-3 and C-4 agreement as well as the arbitration agreement are all true and valid, that the Plaintiffs had full knowledge of all the proceedings before the arbitrator as well as before the Courts at every stage, as notices were duly issued to them by the arbitrator as well as the Courts. But the plaintiffs deliberately refused to receive them and they ultimately came forward with the present suit with totally false and baseless allegations with a view to deny the fruits of the decree to the defendant and to harass him. The defendant further pleaded that the order dismissing the application filed under Order 9, Rule 13 CPC operates as res judicata and it is also barred by limitation.

(3.) After framing issues and after considering the oral and documentary evidence adduced on both sides, the trial Court dismissed the suit with costs holding, inter alia, that the plaintiffs failed to establish the fraud alleged and that the suit is barred by res judicata in view of the order dismissing the application filed under Order 9, Rule 13 CPC and the suit is also barred by limitation. On appeal, the appellate Court concurring with the view of the trial Court confirmed the judgment and decree of the trial Court and dismissed the appeal.