KANHAIYALAL Vs. RAMKISHAN

JUDGEMENT

(1.) THIS appeal is directed against the order of remand passed by the IVth additional District Judge, Ujjain under Order 41, Rule 23, C. P. C. , and the only question raised in this appeal is that the appeal in the Court below should not have been entertained as the same was barred by limitation.

(2.) FACTS material for consideration of the question thus raised are as follows :

(3.) APPELLANT Kanhaiyalal filed Civil Suit No. 44 of 1937 and obtained a decree declaring his right to certain properties and also granting injunction against madanlal and his son Ramchandra which was ultimately confirmed by the Indore high Court in Civil Second Appeal No. 116 of 1939. This decree was put into execution. In the course of the execution of that decree the judgment-debtors madanlal and his son Ramchandra raised the contention that the decree did not include the land which is the subject-matter of the present suit. This contention was ultimately rejected in Civil Second Appeal No. 291 of 1950. Thereupon another son of Madanlal namely Ramkrishan filed the present suit claiming a declaration that the decisions in Civil Second Appeal No, 116/1939 and Second appeal No. 291/1950 are not binding upon him inasmuch as he was not a party to that suit, the land was ancestral and the appellant decree-holder had obtained the decree by misrepresentation and fraud. It was also pleaded that his father and brother were grosslv negligent in defending the suit. Claim on the basis of partition and allotment of suit land to him therein was also put forward. The present appellant who was the decree-holder in the earlier litigation contested suit on various grounds including that of res judicata.