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2010 DIGILAW 1296 (PNJ)

Baljinder Singh v. Gurdial Kaur (Through Lrs. )

2010-03-26

AJAY TEWARI

body2010
Judgment Ajay Tewari, J. 1. This appeal has been filed against the order of the learned Appellate Court allowing the appeal of the respondent and remanding the case back for fresh decision. 2. The respondent had filed the suit challenging the exparte decree obtained by the appellant on the ground that it was vitiated by fraud. Learned Trial Court held that the only option available to the respondent was either to move an application under Order 9 Rule 13 CPC or file an appeal. Consequently, the suit was dismissed. In the appeal, learned Lower Appellate Court relying upon a judgment of the Honble Supreme Court in Bhanu Kumar Jain v. Archana Kumar, 2005(2) RCR (Civil) 781, allowed the appeal holding that in a situation where fraud is alleged, a suit to challenge the decree is maintainable. Learned counsel for the appellant has placed reliance on a decision of this Court in Prakash Kaur & Ors. v. Satta & Ors., 2006 (2) CCC 253 (P&H) and has canvassed that after considering Bhanu Kumar Jain (supra), this Court held as follows :- "6. In the absence of availing any of these two remedies the plaintiff-appellants are not entitled to raise the issue once again by filing a civil suit because it would attract the application of principle of res judicata as envisaged by Section 11 of the Code......". 3. He has also relied upon another judgment of this Court in Smt. Shanti Devi (dead) represented by LR. v. Gian Chand, 2008(1) R.C.R. (Civil) 658, wherein this Court relying upon the case of Banwari Lal v. Chando Devi (Smt.) (through LRs), 1993(3) R.R.R. 685 : (1993) 1 SCC 581 and Pushpa Devi Bhagat (D) Th. LR. Smt. Sadhna Rai v. Rajinder Singh, 2006(2) R.C.R.(Rent) 150 : 2007(4) R.A.J. 418 : 2006(3) RCR (Civil) 479, held that the suit challenging the compromise decree is not maintainable. However, a perusal of this judgment reveals that the findings were that the compromise was unlawful (and not fraudulent). 4. Learned counsel for the respondent has, however, relied upon latest decision of Honble Supreme Court in Mahesh Yadav & Anr. v. Rajeshwar Singh & Ors., 2009(1) R.C.R.(Rent) 1 : 2009(1) R.A.J. 115 : 2009 (1) R.C.R. (Civil) 422, wherein held as follows :- "12......When an ex parte decree is passed, the defendant may have more than one remedies. 4. Learned counsel for the respondent has, however, relied upon latest decision of Honble Supreme Court in Mahesh Yadav & Anr. v. Rajeshwar Singh & Ors., 2009(1) R.C.R.(Rent) 1 : 2009(1) R.A.J. 115 : 2009 (1) R.C.R. (Civil) 422, wherein held as follows :- "12......When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application". 5. In my opinion, this Court is bound by the decision of the Honble Supreme Court in Mahesh Yadav & Anr. v. Rajeshwar Singh Ors. (supra). Consequently, no irregularity can be pointed out in the impugned order. Accordingly, this appeal as well as application for stay are dismissed. No costs. Parties through their counsel are directed to appear before learned Trial court on 21.04.2010 in terms of impugned order.