GOBARDHAN SINGH Vs. LALMUNI SINGH

JUDGEMENT

(1.) HEARD learned counsel for the petitioners, who are defendants in Title Suit No. 144/1993, which was filed by the plaintiffsopposite parties for partition of the suit land after avoiding compromise decree dated 12.7.1993 passed in an earlier suit for partition bearing Title Suit No. 149/ 1992.

(2.) THE petitioners challenge the impugned order dated 11.10.2002 passed in Title Suit No. 144/1993, by which the learned Subordinate Judge -Ill, Bhabhua (Kaimur) rejected his petition under Order -XXIII Rule 3A of the Code of Civil Procedure (hereinafter referred to as 'the Code ' for the sake of brevity) for dismissing the suit on the ground of maintainability.

(3.) FROM the aforesaid averments as well as from the materials on record including the impugned order it is apparent that the subsequent suit, namely, Title Suit No. 144 of 1993 was mainly for partition of the share of the opposite parties after avoiding the decree passed in the earlier Title Suit No. 149 of 1992, which was obtained by forgery and fraud, not only upon the defendants of that suit but also upon the court. Section 44 of the Indian Evidence Act clearly provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42 of the Evidence Act and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion can show the same in a subsequent suit. Section 4 of the Code further provides that in absence of any specified provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law. Hence in the facts and circumstances of the case Section 31 of the Specific Relief Act, which is the special law, will be applicable which provides that any person who apprehends that any such instrument, which is obtained by forgery or fraud, may cause injury, may sue.