MARIRAM MAJHI Vs. LUDHU MAJHI

JUDGEMENT

(1.) This writ petition is under Article 227 of the Constitution of India wherein the order dated 07.02.2018 passed in Title (P) Suit No.125/94 whereby and whereunder the show cause dated 08.04.2010 filed on behalf of the defendant who is petitioner in this writ petition on the point of appointment of Pleader Commissioner, has been rejected, is before this Court.

(2.) Mr. K. C. Mahto, leaned counsel for the petitioner submits that after passing of the preliminary decree, the trial court has proceeded for appointment of Survey knowing Pleader Commissioner in order to prepare the final decree and at that time, he has filed the show cause stating therein that the preliminary decree has been obtained by the plaintiff by commission of fraud and, therefore, the decree obtained through fraud will be vitiated but the said application having been rejected, therefore, this writ petition has been filed.

(3.) This Court, after hearing learned counsel for the petitioner and going across the pleading made in the writ petition as also the impugned order, has found that the partition suit has been filed by the plaintiff in which a preliminary decree was passed on 16.01.2005, after knowing it, the petitioner has filed an application for setting aside the said preliminary decree on the ground of fraud but the same has been rejected vide order dated 20.12.2014. It is further evident that when the preliminary decree has been passed by the trial court, a Survey knowing Pleader Commissioner has been appointed. At that juncture objection has been filed by the petitioner on 08.04.2010 making therein objection regarding the appointment of Survey knowing Pleader Commissioner on the ground that the preliminary decree since has been obtained by way of fraud, the said decree will be said nullity in the eye of law on the basis of the principle of that fraud vitiated everything and, therefore, the trial court ought to have been taken into consideration this aspect of the matter instead of rejecting the said objection.