GUDURU SRINIVAS Vs. AMRADI PRABHAKAR

JUDGEMENT

(1.) This revision is disposed of at the stage of admission. The petitioner is said to be an unfortunate affected party in this case. The plaintiff in O.S.No.137 of 2012 on the file of the Senior Civil Judge's Court, Siddipet filed a suit for declaration of his title over the plaint schedule property therein as well as for possession. The revision petitioner contends that while he is the owner of the property, the plaintiff fraudulently arrayed the defendant as the person claiming title and has been interfering with his possession. The defendant remained ex parte. Subsequently, the suit was decreed ex parte. It would appear that the plaintiff sought to execute the decree.

(2.) Sri K.Govind, learned counsel for the petitioner contended that the petitioner has come to know at the stage of the execution about the fraud played by the plaintiff and sought to come on record as defendant No.2. He submitted that the petitioner filed a petition before the trial Court in I.A.No.609 of 2012 under Order I Rule 10 C.P.C. seeking to come on record as defendant No.2. The trial Court dismissed the application first on the ground that the suit has already been disposed of and that a petition under Order I Rule 10 C.P.C. therefore does not lie; and secondly on the ground that the proper course for the petitioner would be to file a claim petition under Order XXI Rule 58 C.P.C. in the execution petition filed by the plaintiff. The learned counsel for the petitioner contended that when a party played fraud on the Court, the entire proceedings stand vitiated and the Court cannot remain a helpless spectator. He placed reliance upon Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., 1997 5 Supreme 485. The Supreme Court observed that fraud confers an inherent power upon the Court to recall its judgment or order if the same is obtained by fraud.

(3.) The learned counsel for the petitioner contended that the plaintiff obtained the ex parte decree fradulently and that the same is liable to be aside as the same is brought to the notice of the Court. I am not able to agree with the contention for the reason that although fraud vitiates the proceedings, fraud prima facie should be made out at the outset before the proceedings can be set aside. In the present case, the fraud cannot be said to have been established. Further in the given facts and circumstances of the case, fraud is only a question of fact. I therefore, cannot accept the contention of the learned counsel for the petitioner that it is patent that the plaintiff obtained a fraudulent decree and that the same is therefore liable to be set aside.