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Allahabad High Court · body

1993 DIGILAW 295 (ALL)

Tara Shankar v. Vinod Kumar Verma

1993-04-30

M.L.BHAT

body1993
JUDGMENT : M.L. BHAT, J. 1. An ex-parte decree seems to have been passed by the court below, which is sought to be set aside by the Appellant under Order 9, Rule 13 Code of Civil Procedure. The said application has been rejected by the court below. The present appeal is filed against the said order dated 23.4.1983. 2. Respondent No. 2 and 3 were served by registered notice, which are presumed to have been served on them. Respondent No. 1 had appeared. This is reflected by the orders dated 10.2.1984 and 7.11.1985. The cause list was revised No body appeared in this case for the Respondents. Mr. Shitla Prasad submitted that he was not the counsel for the Respondents in this appeal though he was appealing in F.A.F.O. No. 350 of 1982 on behalf of the Respondents, 3. The brief question that falls for consideration is whether a decree passed ex-parte, affecting a person, who was not a party to the decree could be set aside under Order 9 Rule 13 Code of Civil Procedure. 4. It appears that there was a trust. One of the trustees had died. A litigation was pending about the properties for which the trust was created. The present Appellant claims that he was to be substituted in place of the deceased-trustee but on wrong representation made by the Respondent No. 1 the said Respondent got himself recorded as trustee and obtained an ex-parte decree. When the Appellant came so know about this decree, he moved an application before the court below in which he seems to have submitted that the decree of the court below was obtained by playing a fraud on the court. No notice was served on the interested party and notices were sent on wrong address. The court was kept in dark and by concealment of actual facts ex-parte decree was obtained. This application seems to have been contested by the Respondent No. 1 and the court below was of the opinion that the Appellant was not a party to the ex-parte decree. Therefore, at his instance the decree cannot be set aside under Order 9 Rule 13 Code of Civil Procedure. 5. This application seems to have been contested by the Respondent No. 1 and the court below was of the opinion that the Appellant was not a party to the ex-parte decree. Therefore, at his instance the decree cannot be set aside under Order 9 Rule 13 Code of Civil Procedure. 5. In a suit of such a nature it was necessary to issue notice of the substitution application filed by Vinod Kumar in respect of Panna Lal, who was one of the three trustees and who had died, to all the Interested persons, it was averred that such an application was moved and the court below had directed for issuance of notice to all she baits and executors. However, notices were sent to some persons on wrong addresses which was supported by a collusive report of the process server. The matter seems to have proceeded on the basis of the report of the process server and the Appellant got excluded from contesting the case. 6. The dispute is admittedly in respect of the trust properties in which the Appellant was vitally interested. Notice should have been sent to him of the substitution application on correct address. If the notice was sent to him on incorrect address and he was excluded from being brought on record and thereafter ex-parte decree is passed In a collusive manner, the Appellant, who is vitally interested in the matter, has a right to contest the suit and convince the court that the ex-parte decree was obtained by fraud and collusion, the court thereupon would be justified or rather obliged to set aside the ex-parte decree. 7. 7. In the case of Surajdeo vs. Board of Revenue, Uttar Pradesh Allahabad and Others, AIR 1982 All 23 , this Court has observed that where a stranger who was not a party to a suit alleges that the decree passed therein is obtained by fraud and collusion, he can bring a regular suit for the reliefs claimed by him but there is no hard and fast rule that he cannot bring the correct facts to the notice of the court concerned that fraud had been practised upon the court and that the court had committed patent Illegality in passing the ex-parte decree In favour of the Plaintiff in that suit specially when he was likely to be affected by the ex-parte decree in favour of the Plaintiff in that suit. It was held that when a stranger is vitally interested in the subject matter of the suit decree ex-parte application by him to set aside the ex-parte decree under order 9 Rule 13 CPC is competent. It is maintainable u/s 151 CPC also. It would not be correct to say that the trial court in such circumstances bad no jurisdiction to set aside the ex-parte decree, which was obtained by collusion and fraud practised by the Plaintiff and the Defendants in that suit. 8. In the present case also it appeals that the Appellant is vitally interested in the trust properties. He claims to be the heir of Panna Lal and is his real son. Panna Lal seems to have been the trustee of the suit properties. If Panna Lal had died the Appellant should have been brought on record as legal representative of Panna Lal. The application for substitution filed by the Respondent No. 1 seems to have omitted the name of the Appellant as legal representative of the deceased Panna Lal but the District Court had taken care to issue notice to all concerned persons. The notices seem to have been suppressed or sent on wrong address with a view to prevent the Appellant from contesting the suit there seems to be some collusion by which a natural heir of the deceased trustee was excluded from the array of the parties. The notices seem to have been suppressed or sent on wrong address with a view to prevent the Appellant from contesting the suit there seems to be some collusion by which a natural heir of the deceased trustee was excluded from the array of the parties. The trial court should have, therefore, considered this aspect of the matter and examined whether the notices were sent to all interested persons and what was the locus standi of the Appellant to contest the suit if he was a natural heir of the deceased Panna Lal could he still be excluded on the basis of the process servers report or on the basis of mechaniciane of any of the parties to the suit. The suit was decided ex-parte. That shows that there was some collusion between the parties to the suit and the Appellant was deprived of his light to contest the suit in place of Ms father. The collusion or the fraud is writ large on the face of the record. Therefore, in such circumstances, the trial court should not have excluded the Appellant and rejected the application on the ground that he could not file the same as he was not a party to the ex-parte decree. 9. The judgment and the order of the court below dated 23.4.1992 is, therefore, erroneous and against the provisions of law. The same is liable to be set aside. 10. Accordingly this appeal is allowed and the order dated 23.4.1992 is set aside. The court below is directed to consider the application of the Appellant for setting aside the ex-parte decree under order 9 Rule 13 CPC on merits and decide the same in accordance with law. No order as to costs.