GOHLI Vs. BAL KRISHAN

JUDGEMENT

(1.) APPELLANTS have filed this appeal under Order 43, Rule 1 (u) of the Code of Civil Procedure against order dated 21-12-2000 of learned Additional District judge, Rainban, upsetting respondent Bal krishan's suit's dismissal, ordered vide judgment dated 17-4-1999 of learned sub-Judge, Ramban.

(2.) RESPONDENT, Bal Krishan, had instituted a suit against the appellants, seeking declaration that property comprising of land and houses of one Mst. Ramku had vested in him by virtue of Will, and that ex-parte decree of learned Sub Judge, Ramban in file no. 11/civil dated 19-12-1988 was null and void. Learned Sub Judge, Ramban, held the suit not maintainable, holding that a decree, be it ex-parte or otherwise, could be questioned in a subsequent suit only if it had been attacked on the ground of having been obtained by fraud or misrepresentation of facts. He found that Bal Krishan, plaintiff, had not averred any such thing in his plaint and in that view of the matter the suit was not maintainable.

(3.) ON an appeal taken against the decree of learned Sub Judge, Ramban, learned additional District Judge, Ramban, found on facts that plaintiff had specifically pleaded that appellants had obtained the decree by misrepresentation of facts. Learned appellate Court found that the trial Court had missed to notice that it had, in paragraph No. 4 of its judgment, recorded that the decree had been alleged to have been obtained by respondent herein, by misrepresentation of facts. Holding that the plaintiff made requisite pleadings that decree had been obtained by misrepresentation of facts, the first Appellate Court, upsetting the decree of learned Sub Judge, Ramban, remanded the suit to the trial Court for trial after affording opportunity to the parties to lead evidence.