LAXMI NARAYAN THAKUR, REPRESENTED BY MARFATDAR BABAJI NITYANANDA DAS Vs. PUNIYA BEHERA AND ANR. AND GOPALAMANI PATNAIK

JUDGEMENT

(1.) THIS is an appeal by Defendant No. 1 against the judgment and decree of the Additional Subordinate Judge, Puri, confirming the decision of the Munsif, Puri, in O.S. No. 244 of 1960.

(2.) THE Plaintiffs filed the suit fur setting aside the judgment and decree passed by the Munsif, Puri, in Original Suit No. 60 of 1959(1) on the ground of fraud and prayed therein for injuncting the Defendants from executing the decree in the said suit. Plaintiff No. 1 is the husband of Plaintiff No. 2. The Plaintiffs' case in short is that Defendant No. 1 on the allegation of having purchased the suit house from Defendant No. 2, the widow of Padmacharan Patnaik, filed O.S. No. 60 of 59 in the Court of the Munsif at Puri for evicting the Plaintiffs from the said house. Defendant No. 1 as Plaintiff in the said suit acting through Marfatdar Nityananda Das suppressed the service of summons, the notices, and the copy of the plaint etc. on these Plaintiffs, the Defendants in the said suit, and fraudulently obtained an ex parte decree on 31 -8 -1959 against these Plaintiffs. Previous to the aforesaid suit, Padma Charan Patnaik, husband of Defendant No. 2, had brought a suit being O.S. No. 35/357 of 1951/50(1) in the Court of the Munsif, Puri, against Plaintiff No. 1, and in the said suit Padmacharan's prayer for evicting the Plaintiff No. 1 from the suit house had been dismissed in O.S. No. 68/59 this aforesaid fact was also intentionally suppressed.

(3.) THE trial Court decreed the Plaintiffs' suit on the finding that the ex parte decree in O.S. No. 6a/59 was obtained by Defendant No. 1 by fraudulent means and as such was void and inoperative; that the Plaintiffs are bound by the decree in O.S. No. 35/357 of 1951/50(1) but they are not bound by the decree in O.S. No. 63/50 that the question of estoppel as raised by Defendant No. 1 is immaterial and does not arise on the facts and circumstances of this case; that the suit was filed within time and that the decree in O.S. No. 68/59 being fraudulent cannot operate as res judicata. Defendant No. 1 was also injuncted from executing the decree in O.S. No. 6a/09 against the Plaintiffs.