(VALLURU) BASAVAYYA Vs. GOVINDARAJU VEERABHADRA RAO

JUDGEMENT

(1.) Plaintiffs 1 and 2, who are father and son, are the appellants. This second appeal arises out of a suit instituted by them for a declaration that the decree obtained by defendants 1 to 4 against plaintiff 1 in O.S. 44 of 1921 on the file of the Sub-Court, Coca-nada, is not binding on them.

(2.) The facts are these: One Sitapathi Rao was a divided brother of one Krishna- murti. After his death plaintiff 1 purchased items 7 and 8 of the properties involved in the suit, O.S. No. 44 of 1921. These properties belonged to Sitapathi Rao. The sale deed, Ex. A, was executed by his widow Venkayamma and her adopted son represented by her, and by Mahalakshmamma and her minor son, who are defendants 1 to 4 in the present suit, represented by her. After Venkayamma's death these defendants as plaintiffs filed O.S. 44 of 1921 to recover the properties of Sitapathi Rao as reversioners to his estate. By that time defendants 1 and 2 had become majors and defendants 3 and 4 (plaintiffs 3 and 4), who were still minors, were represented by their mother, Mahalakshmamma. In that suit the present plaintiff 1 was impleaded as defendant 12 and it was alleged that he was in possession of items 7 and 8 as a tenant. Those items are the present suit properties. Defendants 4, 5 and 12 (the present plaintiffs) were ex parte in that suit. The suit was compromised by the plaintiffs therein and they obtained a decree.

(3.) The present plaintiffs seek to set aside the decree in O.S. 44 of 1921 on the ground that defendants 1 to 4 played a fraud upon the Subordinate Judge's Court of Cocanada as they abstained from bringing to the notice of that Court the sale deed, Ex. A, and misrepresented that plaintiff 1 was only a tenant in possession, while as a matter of fact he was holding the properties as a vendee under Ex. A and also on. the ground that they fraudulently prevented the service of summons on plaintiff 1 and got him declared ex parte. With respect to the latter ground both the Courts found that plaintiff 1 was not properly served and that the defendants had really nothing to do with the act of the Court in declaring the plaintiff ex parte.