PASUPULA SUBBARAYUDU Vs. GOOLLA JANGAMAIAH AND OTHERS

JUDGEMENT

(1.) This is a petition under Section 115 of the Civil Procedure Code to revise the order of the learned District Munsif Banganapalli, permitting the respondent to amend the plaint under Order 6 Rule 17 of the Civil Procedure Code.

(2.) The facts relevant to the disposal of this petition may be briefly stated : The respondent to this petition instituted O.S. No. 42 of 1953 on the file of the District Munsif Court Banganapalli, against one late Yerikala Ganganna, the father of the 3rd respondent, for the recovery of money on the foot of a promissory note. He also filed an application for the attachment of properties of the defendant in the suit under Order 38 Rule 5 of the C.P.C., and obtained the attachment. The petitioner herein filed an application I.A. 552 of 1953, on the file of the District Munsiff Court Banganpallh for raising the attachment. He also filed O.S. 8/1954, on the file of the District Munsiff Court Banganpalli praying for a declaration that the properties attached belonged to the plaintiff in that suit the present petitioner and for a permanent injunction restraining the defendant from interfering with his possession. It was alleged in the plaint that the plaintiff obtained a sale deed from the wife of the late Yerikala Ganganna, and that consideration for the sale was paid by the discharge of all existing debts. To that suit the present respondent was impleaded as the second defendant. The learned District Munsiff in and by his judgment dated 31st August, 1954, passed a decree in terms prayed for in the plaint. The second defendant and defendants 3 to 6, who adopted the written statement of the 2nd defendant, did not file any appeal and, therefore, that decision must be deemed to have become final and conclusive between the parties.

(3.) Meanwhile, I.A. 521 of 1953 filed by the present petitioner for raising the attachment was allowed by the learned District Munsiff on 31st May 1954. Aggrieved by that order, the 1st respondent filed O.S. 57 of 1955 on the file of the District Munsiff Court Banganpalli under Order 21 Rule 63 Civil Procedure Code for setting aside of the order passed in I.A. 521 of 1953 in O.S. 42 of 1953. The 1st defendant to that action is the present petitioner. That suit was filed on 2-6-1955. The present petitioner, who was impleaded as the 1st defendant, filed a written statement alleging inter alia that the decision in O.S. 8 of 1954 was a bar to the present suit. In January 1956, the present respondent who is the plaintiff in O. S. 57 of 1955 filed I. A. 34 of 1956 for permission to amend the plaint under Order 6, Rule 17 of the C.P.C. The amendments sought for were two: (1) it was prayed that the suit may be permitted to be filed in a representative capacity for and on behalf of all the creditors of Ganganna and (2) to add a paragraph containing allegations to the effect that the decree in O. S. 8 of 1954 was obtained by fraud by reason of the fact that the present petitioner deceived the plaintiff by making representations that the matter would be settled by certain panchayatdars, and that the plaintiff need not attend the court on the day of trial, and that contrary to those representations he attended the trial and obtained a decree. It is, therefore, alleged that the decree in O. S. 8 of 1954 was vitiated by fraud, and the amendment sought for a declaration that the decree obtained in O. S. 8 of 1954 is vitiated by fraud and not binding upon the respondent and for its cancellation.