RAGHUNATH TAMBE Vs. M P ELECTRICITY BOARD

JUDGEMENT

(1.) THE brief facts which have led the filing of this petition be noticed : The present petitioner, Raghunath Tambe, filed a suit. In this suit, a prayer was made that he be provided with an electric connection. The Madhya Pradesh Electricity Board through its Chairman and two private persons; namely; Chunne Khan and Abdul, were arrayed as defendants. The suit was decreed. A direction was given that the present petitioner be provided with an electric connection in the manner in which a prayer was made in the main suit. A perusal of the decree indicates that a direction was also given that the electricity connection be provided to defendants Nos. 2 and 3 in the suit from another direction. At the same time, observations were made that steps be also taken with a view to remove the lines providing electricity connection to one Poundrik and Hirway and that these two persons be provided with electricity connection through an alternate route. It is against this latter portion of the directions contained in the judgment and decree passed in civil suit No. 44-A of 1991 on 24th December, 1993, a petition was preferred by the present respondent No. 4. This petition was under Order IX, Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ). It has been asserted by him that as some observations made in the above suit affects his rights i. e. , the rights of Hirway, the respondent No. 4, in the present petition and he was not arrayed as a defendant, therefore, the decree should be treated as an exparte decree and the same be modified. It is this application which was allowed by the Court below. Against this, the present petitioner/decree-holder has come to this Court.

(2.) THE learned counsel for the respondent No. 4 submits that his rights are being affected by the decree, therefore, he was within his rights to file application under Order IX, Rule 13 of the Code. It is this contention of the learned counsel for the respondent No. 4, which is being seriously opposed by the learned counsel for the petitioner. He submits that as the decree has been executed, there is no scope for interference in the proceedings which have now been initiated under Order 9, Rule 13 of the Code.

(3.) THE question as to whether an exparte decree can be set aside at the instance of a person who is not party to the main proceedings is a matter which was gone into by the Allahabad High Court in the case reported as Surajdeo v. Board of Revenue, UP. , Allahabad, AIR 1982 All. 23. In that case, it was observed that 'where a stranger who was not a party to a suit alleges that the decree passed was obtained by fraud and collusion, he can bring a regular suit for the reliefs claimed by him but there is no hard and fast rule that he cannot bring the correct facts to the notice of the court concerned that fraud had been practised upon the Court and that the Court had committed patent illegality in passing the ex parts decree to which he was not a party. ' This decision does advance the proposition sought to be put across by the counsel for the respondent No. 4. On the other hand, the learned counsel for the petitioner placed reliance on a decision given in Subahu Kumar Jain v. Jagdish Prasad Choudhury, AIR 1990 Gauhati 66. The decision referred to above was noticed by the Gauhati High Court but was not followed. The Gauhati High Court thought apt to follow the earlier decision given by that Court in N. C. L. M. Saha v. S. R. Dev, AIR 1976 Gauhati 7.