1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.480 OF 2009 WITH CIVIL APPLICATION NO.1649 OF 2009 Shri Ramjan Shaba Patel & Anr. )..Appellants V/s. Shri Shabir Hanif Patel & Ors. )..Respondents ---- Shri S.S.Patwardhan for the appellants. ---- Coram : R.S.MOHITE,J Date : 7th January, 2010 1 This is an appeal filed by the original plaintiff against concurrent orders of the two lower Courts rejecting the plaint under Order -VII rule 11(d) of the Code of Civil Procedure 1908. The present appellant was a party in the partition suit. Since service could not be effected on him, under an order of the Court a proclamation was issued and he was deemed to be served by publication. At the stage of execution he resisted execution by raising several objections. Those objections were rejected by the executing Court. He carried the matter by way of writ petition in the High Court and ultimately withdrew the said writ petition. Subsequently, he filed a fresh suit which was given Daily Register No. 329/2009. Office raised an objection regarding maintainability and the Court passed an order under Order-VII rule 11(d) of Code of Civil Procedure, 1908. Both the Courts have held that there is no material in the plaint to substantiate the allegation of obtaining a 2 decree by fraud. It is seen that service under proclamation by publication was in pursuance of the order of the Court. In this regard, no fault can be attributed to the plaintiff in the partition suit. It is contended that there was a suppression of material which amounted to fraud. The alleged suppression was that certain property which was self acquired property of the appellant was included as a joint family property. That, in my view, cannot amount to fraud. The plaintiff is entitled to contend that any property is a joint family property. It is for the defendant to raise the defence that it is self acquired property. He has also not applied for setting aside the ex-parte decree. In such circumstances, there is no substantial question of law involved. Hence, Second Appeal is summarily rejected. CIVIL APPLICATION NO.1649 OF 2009 1 As the Second Appeal is rejected, this application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3 4