*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.833 of 2004 %25.11.2011 #Nannuri Sathi Reddy ..Appellant. Vs. $Nannuri Narsi Reddy and others. ..Respondents. !Counsel for the appellant : Sri K.Narasimhachari ^Counsel for Respondents : Sri B.N.Swamiji <Gist : >Head Note: ?Cases Referred: 1. 2002 (5) ALD 502 (DB) 2. AIR 1993 SC 1139 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.833 of 2004 JUDGMENT: The appellant herein filed O.S.No.513 of 1989 on the file of the District Munsif, Ramannapet, for a declaration that he has acquired the rights of ownership, vis-à-vis the suit schedule property, on the basis of an oral partition in the family. Most of the respondents herein figured as defendants in that suit. An ex parte decree was passed on 13.02.1990. Thereafter, the appellant filed E.P.No.3 of 1991 for execution of the said decree, at that stage. One year thereafter, respondents 1 to 4, 7 and 8 herein filed O.S.No.205 of 1991, against the appellant and respondents 5 and 6, with a prayer to cancel the decree in O.S.No.513 of 1989. It was pleaded that though the summons in that suit were not served in accordance with the procedure prescribed under Rule 5 C.P.C., the process server endorsed that the summons were served, and taking the same into account, the trial Court set the defendants therein ex parte and passed the ex parte decree. An allegation of fraud on the part of the appellant herein was made. The appellant alone contested O.S.No.205 of 1991. The trial Court dismissed the suit through its judgment, dated 08.12.1998. Respondents 1 to 4 herein filed A.S.No.11 of 1999 in the Court of Senior Civil Judge, Bhongir. The appeal was allowed through judgment dated 15.07.2003. Hence, this second appeal. Sri K.Narasimhachari, learned counsel for the appellant, submits that the very institution of O.S.No.205 of 1991 was opposed to law. He contends that, in case respondents 1 to 4, 7 and 8 were of the view that the summons were not served in accordance with law, they could have filed an application under Rule 13 of Order IX C.P.C. or preferred an appeal. He submits that even on merits, the trial Court recorded a finding to the effect that the summons were properly served. Learned counsel further submits that during the pendency of O.S.No.205 of 1991, the 9th respondent herein filed O.S.No.61 of 1998, against the appellant and respondents 1 to 8 and certain others, for partition. S ri B.N.Swamiji, learned counsel for the respondents, on the other hand, submits that the appellant obtained the ex parte decree in O.S.No.513 of 1989 by playing fraud. He submits that there is no bar in law, for institution of a separate suit for cancellation of the decree obtained by fraud. The trial Court framed only one issue for its consideration viz., “Whether the plaintiffs are entitled for the cancellation of the decree passed in O.S.No.513 of 1989?” On behalf of respondents, PWs.1 to 6 were examined and Exs.A.1 and A.2 were filed. On behalf of the appellant, DWs.1 to 5 were examined and Exs.B.1 to B.35 were filed. The suit was dismissed and the lower Appellate Court framed only one point, as to “Whether the affixture of summons was done in accordance with law?”, for its consideration. The appeal was allowed. This Court is of the view that a substantial question of law, viz., Whether a separate suit can be instituted for cancellation of a decree in another suit, by the persons, who figured as parties to such decree?, arises for consideration in this second appeal. It is not uncommon that the suits are dismissed for default or decreed ex parte, depending on the non- appearance of the plaintiff or defendants, as the case may be. Order IX C.P.C. prescribes the nature of steps to be taken in this regard. While the plaintiffs are entitled to file applications for restoration of the suits, the defendants are conferred with the right to file applications to set aside the ex parte decrees. Further remedies in the form of appeals, or revisions, as the case may be, are provided against the orders allowing, or rejecting the applications filed under the said provisions. Alternatively, a defendant, who suffered an ex parte decree can prefer an appeal, without exhausting the remedy under Order IX C.P.C. Filing of a separate suit, for cancellation of an ex parte decree, by persons, who are parties to that very decree, is unknown to law. It is not only opposed to the provisions of C.P.C., but also to the public policy. Once persons, who figure as parties to the suit, or proceedings are conferred with the rights of filing applications, revisions, appeals or further appeals, they cannot be permitted to file a suit in respect of those very proceedings. If such a course is permitted, an independent suit can be filed for setting aside the decree, which acquired finality after the exhaustion of remedies of appeals, simply by raising the plea of fraud. Assuming that one of the parties played fraud in obtaining a decree, the same can be urged in the further remedies. Learned counsel for the respondents places reliance upon the judgment of this Court in Anitha v. Rambilas[1]. In that case, the parties filed a common application under Section 13(1)(b) of C.P.C. for obtaining divorce by mutual consent. After the trial Court passed a decree of mutual consent, the wife filed an application to set aside the same, alleging that her consent was procured by fraud. The trial Court dismissed the application. In the appeal, this Court affirmed the finding recorded by the trial Court to the effect that no fraud was played. In the course of discussion, Their Lordships observed that in case the appellant therein was of the view that fraud was played, an independent suit could have been filed. No principle, as such, was laid in clear terms. Further, the nature of disposal given to the appeal does not support the contention that, in the event of any party alleging fraud, in the course of obtaining a consent order, the only remedy is to file a suit. Reference was made to a judgment of the Privy Council of the year 1923. That was at a time when Order 23 of C.P.C., did not prohibit separate suits vis-à-vis the consent decrees, if one of the parties alleged that the consent was obtained by fraud. C.P.C. was amended in the year 1976, directing that any application, in which allegations to the effect that compromise was not lawful; are made, shall be entertained in that very suit and that no separate suit can be filed. This aspect of the matter was explained by the Supreme Court in Banwari Lal v. Smt.Chando Devi (through L.R.)[2]. Recently, this Court had an occasion to deal with these questions in C.R.P.No.4108 of 2011 ((M/s. Aquadev India Limited v. Kode Basava Venkateswara Rao). The following observation was made in that behalf: “However, one important aspect needs to be taken into account. The facility to file a separate suit to set aside the decree and judgment passed in another suit is available only to a person who was not a party to the decree sought to be set aside. If he happens to be a party to the suit in which the decree was passed, he has to avail further remedies before the very Court, which passed the decree, or in the Superior Courts by filing appeal or revision. A person, who has suffered a decree, does not have a right to challenge that decree by filing a separate suit. If such a course is permitted, he would be able to deprive the benefit of the decree in a suit to the decree holder therein by filing a separate suit after loosing in every forum. Law does not permit such a course of action.” Therefore, the very institution of O.S.No.205 of 1991 by the respondents for setting aside the decree in O.S.No.513 of 1989 dated 13.12.1990, to which they were parties, was untenable. The second appeal deserves to be allowed, on that account alone. It is not as if the respondents are put to any hardship, on account of the decree in O.S.No.513 of 1989. It is brought to the notice of this Court that O.S.No.61 of 1998, for the relief of partition, was filed in the Court of Junior Civil Judge, Ramannapet, by the 9th respondent, and appellant and respondents are parties to the said suit. The question as to whether there was a prior partition of the suit schedule properties, can certainly be decided in that suit and the decree in O.S.No.513 of 1989 shall not be a bar for adjudication of such a question, particularly when some of the parties to O.S.No.61 of 1998 were not parties to O.S.No.513 of 1989. The Second Appeal is accordingly allowed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:25.11.2011 L.R. copy to be marked. GJ [1] 2002 (5) ALD 502 (DB) [2] AIR 1993 SC 1139