JUDGMENT : The appellants in both these appeals are the plaintiffs in O.S. No.367/2016 on the file of the Subordinate Court, Avinashi. They filed the suit for a declaration that the decree and judgement dated 25.07.2003 passed in O.S. No.213 of 2002 on the file of the Subordinate Court, Tiruppur, is null and void and for costs. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated. 3.The case of the plaintiffs in a nutshell is as follows : 3.1. The plaintiffs are sisters. The suit property originally belonged to one Sennimalai Gounder and Ammasaiakkal, who are the grand father and the mother of the plaintiffs respectively. Sennimalai Gounder and Ammasaiakkal orally partitioned their properties and in the said partition, Ammasaiakkal was allotted eastern portion of the property. Sennimalai Gounder obtained a loan from a bank by mortgaging his share of the property and since he did not repay the same, the bankers brought his property under Court auction sale. One Subramania Chettiyar purchased 3.34 acres of land out of 6.68 acres in survey number 389, Pudupalayam Village, which belonged to Sennimalai Gounder, through Court auction sale. Subsequently, one Balashanmugam, purchased the said property from Subramania Chettiar through a registered sale deed dated 31.01.1989 (Ex.B1). 3.2. During the year 1999, the plaintiffs 1 to 3 and Ammasaiakkal orally partitioned the suit property and each sharer was allotted 83.5 cents in the eastern portion. The mother of the plaintiffs, Ammasaiyakkal, executed a registered settlement deed dated 25.08.1999 (Ex.A3) in respect of her share in favour of the first plaintiff with specific boundaries. The second plaintiff Ponnammal also executed a registered sale deed dated 25.08.1999 (Ex.A4) in favour of the first plaintiff in respect of her share. Thus the first plaintiff became entitled to about 2.50 acres and the third plaintiff became entitled to 83.5 cents. They are also in possession of their respective shares. 3.3. The defendant Balashanmugam was aware of the registered settlement deed and the sale deed executed in favour of the first plaintiff. However, he filed a suit for partition in O.S. No.213/2002 by showing only Ammasaiakkal as the defendant. The present plaintiffs, who are the owners of the suit property, were not shown as defendants. 3.3. The defendant Balashanmugam was aware of the registered settlement deed and the sale deed executed in favour of the first plaintiff. However, he filed a suit for partition in O.S. No.213/2002 by showing only Ammasaiakkal as the defendant. The present plaintiffs, who are the owners of the suit property, were not shown as defendants. Since Ammasaiakkal was aged more than 75 years during the filing of the suit in O.S. No.213/2002 and also an illiterate, she did not appear before the Subordinate Court, Avinashi to contest the suit in O.S. No.213/2002. Therefore, Ammasaiakkal was set exparte and an exparte preliminary decree was passed in O.S. No.213/2002 on 25.07.2003. 3.4. Subsequently, the defendant filed I.A. No.1174/2007 before the Additional Subordinate Court, Tiruppur, for passing a final decree. Since Ammasaiyakkal died, the present plaintiffs were impleaded as legal heirs in the final decree proceedings. According to the plaintiffs, since the preliminary decree was passed in their absence the same would not bind them. In fact, the plaintiffs came to know about the filing of the suit by the defendant in O.S. No.213/2002 only after receiving notice in I.A. No.1174/2007. 3.5. The first plaintiff had filed an application before the Avinashi Revenue Tahsildar to sub divide the suit property based on the settlement deed and sale deed executed in her favour. Accordingly, the Tahsildar also subdivided the suit property on 06.07.2001 vide his proceedings in R.D.R. No.1096/2000/1410AVN as S.F.No.389/2 and patta was also issued to the first plaintiff. The said proceedings took place in the presence of the defendant. The defendant, however, suppressed all these material facts in the suit in O.S.No. 213/2002 and thus played fraud upon the Court. Therefore, the plaintiffs have filed the present suit. The suit was originally filed before Sub-Court, Tiruppur in O.S.No.239/2010 and subsequently transferred to Sub-Court, Avinashi and renumbered as O.S. No.367/2016. 4. The suit was resisted by the defendant on the following grounds: i. It is false to contend that the defendant purchased the western portion of the suit property under the sale deed dated 31.01.1989 from Subramania Chettiar. ii. The suit property was not divided by metes and bounds prior to the filing of the suit in O.S. No.213/2002 before the Subordinate Court, Tiruppur. iii.The plaintiffs are, infact, parties to the final decree proceedings in I.A. No.1174/2007 in O.S. No.213/2002. ii. The suit property was not divided by metes and bounds prior to the filing of the suit in O.S. No.213/2002 before the Subordinate Court, Tiruppur. iii.The plaintiffs are, infact, parties to the final decree proceedings in I.A. No.1174/2007 in O.S. No.213/2002. The objections raised by the present plaintiffs were not accepted by the Court and a final decree was passed. iv. The Plaintiffs were aware of the proceedings in O.S.No.213/2002 and allowed the preliminary decree to be passed. v. The defendant is not aware of any of the proceedings passed by the Tahsildar of Avinashi for effecting sub division of survey number 389. All the actions were initiated behind the back of the defendant. vi. Having participated in the final decree proceedings, the plaintiffs cannot now contend that the decree passed in O.S. No.213/2002 is null and void. 5. On the basis of the above pleadings, the trial Court framed the following issues: 1) "Whether the plaintiffs are entitled for declaring that the decree obtained by the defendant in O.S. No.213/2002 is null and void and not binding upon this plaintiffs of the suit properties? 2) What other reliefs the parties are entitled and cost of the suit?" 6. The first plaintiff examined herself and two other witnesses and marked Ex.A1 to Ex.A21. The defendant examined himself and one another witness and marked Ex.B1 to B9. 7. The learned trial court judge on considering the evidence on record, dismissed the suit filed by the plaintiffs on the following grounds: i. Ammasaiakkal was entitled to half share in the suit survey number 389. ii. The settlement deed dated 25.08.1999 (Ex.A3) executed by Ammasaiakkal and the sale deed dated 25.08.1999 (Ex.A4) executed by the second plaintiff in favour of the first plaintiff are only self serving documents. iii.The plaintiff did not file any appeal against the preliminary decree passed in O.S.No.213/2002. iv. The plaintiffs, though had participated in the final decree proceedings and raised their objections, did not file any appeal against the final decree passed in O.S. No.213/2002. Hence, it cannot be held that the final decree passed in O.S. No.213 of/2002 is null and void. 8. Aggrieved over the decree and judgment passed by the trial court judge, the plaintiffs filed an appeal in A.S. No.81/2020 before the Principal District Court, Tiruppur. Hence, it cannot be held that the final decree passed in O.S. No.213 of/2002 is null and void. 8. Aggrieved over the decree and judgment passed by the trial court judge, the plaintiffs filed an appeal in A.S. No.81/2020 before the Principal District Court, Tiruppur. The learned Principal District Judge, Tiruppur, after analysing the oral and documentary evidence on record, upheld the findings recorded by the trial court, vide her decree and judgment dated 28.07.2021. 9. During the pendency of the suit in O.S.No.367/2016 (the present suit), the defendant filed an Execution Petition in E.P. No.14/2017 in O.S.No.213/2002 for delivery of possession of the property allotted to his share as per the final decree passed in O.S.No.213/2002. The plaintiffs filed E.A. No.35/2018 in E.P.No.14/2017 in O.S.No.213/2002 before the Subordinate Court, Avinashi, under Section 47 of the Code of Civil Procedure. Their contention in the Section 47 petition was that Ammasaiakkal was not the owner of the property on the date of filing of the suit in O.S.No.213/2002 as she had already executed a settlement deed in respect of her share in favour of the first plaintiff. They have also contended that the properties were partitioned between Sennimalai Gounder and Ammasaiakkal long back in which eastern portion of the property was allotted to the share of Ammasaiakkal. It is their further contention that during 1999, the plaintiffs and Ammasaiakkal partitioned the eastern portion of the land and that the defendant who was aware of all these transactions including the proceedings of the Tahsildar in R.D.R. No.1096/2000/1410AVN, had clandestinely filed the suit in O.S. No.213/2002 against Ammasaiakkal alone and obtained an exparte preliminary decree. 10. The learned subordinate judge, Avinashi, after analysing the oral and documentary evidence adduced on both sides, dismissed the petition filed by the present plaintiffs,vide his orders dated 20.03.2020 on the ground that the executing court cannot go beyond the decree passed by the trial court. It was further held that the plaintiffs have not proved that the suit properties were partitioned among the plaintiffs. 11. Aggrieved over the orders passed by the Executing Court, the plaintiffs filed an appeal in A.S.No.83/2020 before the Principal District Court, Tiruppur. The learned Principal District Judge, Tiruppur, upheld the findings recorded by the Executing Court vide her decree and judgment dated 28.07.2021. 12. 11. Aggrieved over the orders passed by the Executing Court, the plaintiffs filed an appeal in A.S.No.83/2020 before the Principal District Court, Tiruppur. The learned Principal District Judge, Tiruppur, upheld the findings recorded by the Executing Court vide her decree and judgment dated 28.07.2021. 12. Aggrieved over the decrees and judgments passed in A.S.No.81/2020 and A.S. No.83/2020, the present second appeals in S.A.No.840/2021 and S.A. No.847/2021, are filed by the plaintiffs. 13. The substantial questions of law involved in the present second appeals are as under: i. Whether the courts below were right in dismissing the case of the plaintiffs when the defendant had not impleaded the plaintiffs in O.S. No.213/2002, who are the owners of the suit properties ? ii. Whether the courts below were correct in holding that the plaintiffs did not challenge the final decree proceedings especially when the plaintiffs have filed the present suit seeking to set aside the preliminary decree itself passed in O.S.No.213/2002 ? 14. Heard Mr. K. Govi Ganesan, learned counsel appearing for the appellants and Mr.V.P. Sengottuvel, learned Senior Counsel assisted by Mr. K.R. Nishanth, learned counsel for the respondent. 15.The plaintiffs are the daughters of Ammasaiakkal. Ammasaiakkal and Sennimalai Gounder were the original owners of the larger extent of the suit property. According to the plaintiffs, there was an oral partition between Sennimalai Gounder and his daughter Ammasaiakkal and in the said partition, eastern portion of the land in survey number 389 measuring 3.34 acres was allotted to the share of Ammasaiakkal. Sennimalai Gounder mortgaged his half share in survey number 389 of Pudupalayam Village, Avinashi Taluk, Tiruppur District, with a bank. Since he did not repay the amount borrowed by him, his half share in the suit survey number was brought under Court auction sale. One Subramania Chettiyar purchased 3.34 acres of land out of 6.68 acres in survey number 389, Pudupalayam Village, through Court auction sale. The respondent/defendant purchased the said property from Subramania Chettiyar through a registered sale deed dated 31.01.1989 (Ex.B9). Subsequently, the defendant filed a suit for partition in O.S.No.213/2002 against Ammasaiakkal. 15.1. According to the plaintiffs, there was a partition between them and Ammasaiakkal during the year 1999 and that Ammasaiakkal executed a settlement deed dated 25.08.1999 (Ex.A3) in respect of her share in favour of the first plaintiff. Subsequently, the defendant filed a suit for partition in O.S.No.213/2002 against Ammasaiakkal. 15.1. According to the plaintiffs, there was a partition between them and Ammasaiakkal during the year 1999 and that Ammasaiakkal executed a settlement deed dated 25.08.1999 (Ex.A3) in respect of her share in favour of the first plaintiff. It was also contended by the plaintiffs that the second plaintiff Ponnammal executed a sale deed (Ex.A4) in respect of her share in favour of the first plaintiff on the same day i.e., 25.08.1999. They have also obtained a patta as per the proceedings of the Tahsildar, Avinashi, dated 06.07.2001(Ex.A8). It is pertinent to point out that the defendant filed the suit in O.S.No.213/2002 against Ammasaiakkal alone. He has not shown the present plaintiffs as defendants in O.S. No.213/2002. During the cross examination, the defendant (Plaintiff in O.S.No.213/2002) had admitted that he knew the about the settlement deed executed by Ammasaiakkal in favour of the plaintiffs before filing the suit. The deposition of the defendant is extracted hereunder: However, it is not known as to why he did not implead the plaintiffs as parties to the suit in O.S. No.213/2002. 15.2. According to the plaintiffs, Ammasaiakkal was an illiterate and therefore, did not appear before the Subordinate Court, Avinashi, to contest the suit in O.S. No.213/2002 and consequently, an exparte decree was passed in O.S. No.213/2002. Thereafter, the defendant filed I.A.No.1174/2007 in O.S. No. 213/2002 for passing a final decree for partition. Ammasaiakkal died and the plaintiffs were impleaded only as legal heirs of Ammasaiakkal. According to the plaintiffs, they were not aware of the suit in O.S. No.213/2002 till they were served with notice in I.A. No.1174/2007. They filed their objections in the final decree proceedings. However, the Subordinate Court, Avinashi, had dismissed their plea by observing that it cannot go beyond the preliminary decree passed by the Court. In the objections, the present plaintiffs have taken a specific plea that there was an oral partition between Ammasaiakkal and Sennimalai Gounder and that Ammasaiakkal was allotted the eastern portion of the land in survey number 389 of Pudupalayam Village, Avinashi Taluk, Tiruppur District. They have also contended that there was a partition between the plaintiffs and their mother Ammasaiakkal during 1999 and that Ammasaiakkal executed a settlement deed in respect of her share in favour of the first plaintiff through a registered settlement deed dated 25.08.1999 (Ex.A3). They have also contended that there was a partition between the plaintiffs and their mother Ammasaiakkal during 1999 and that Ammasaiakkal executed a settlement deed in respect of her share in favour of the first plaintiff through a registered settlement deed dated 25.08.1999 (Ex.A3). As already observed, the learned trial court judge without considering the objections raised by the present plaintiffs, dismissed the petition in I.A.No.1174/2007 only on the ground that it cannot go beyond the preliminary decree passed in O.S.No.213/2002. During the pendency of the final decree proceedings, the plaintiffs filed the present suit in O.S.No.367/2016 seeking to set aside the decree passed in O.S. No.213/2002 as null and void alleging that the same has been obtained by playing fraud upon the court. 15.3. Now the only point for consideration in the present suit is whether the decree in O.S. No.213/2002 is vitiated by fraud. The plaintiffs in the present case have contended that there was an oral partition between Sennimalai Gounder and Ammasaiakkal and that eastern portion of the property was allotted to Ammasaiakkal. This plea should have been decided in the suit in O.S. No.213/2002. Moreover, according to the plaintiffs, there was a partition between the plaintiffs and Ammasaiakkal during 1999 and while Ammaasaiakkal executed a settlement deed in respect of her share in favour of the plaintiffs, the second plaintiff also executed a sale deed. Thus on the date of filing of the suit in O.S.No.213/2002, Ammasaiakkal was not the owner of the entire suit property. The defendant Balashanmugam was also aware of the same as is evidenced from his deposition before the trial court. The Judicial Officer who passed the final decree, did not consider any of the contentions of the plaintiffs in their counter and had observed that the court cannot go beyond the preliminary decree passed in the suit in O.S.No.213/2002. The present suit was filed during the pendency of the final decree proceedings. Both the trial court and the appellate court had unnecessarily gone into the contentions of the plaintiffs and had held that there was no partition between Sennimalai Gounder and Ammasaiakkal and subsequently among plaintiffs and Ammasaiakkal. The said finding in the present suit is totally unwarranted, since the only point to be decided was whether the decree passed in O.S.No.213/2002 was vitiated by fraud. 15.4. The said finding in the present suit is totally unwarranted, since the only point to be decided was whether the decree passed in O.S.No.213/2002 was vitiated by fraud. 15.4. It is also relevant to point out that when the defendant Balashanmugam purchased the suit property from Subramania Chettiar in the year 1989, he had filed the suit for partition only in the year 2002 i.e., after a lapse of 13 years. As already observed, he was aware of the settlement deed and sale deed in favour of the first plaintiff before filing of the suit in O.S. No.213/2002 and therefore, he has definitely played a fraud upon the court by not impleading proper and necessary parties in the suit in O.S. No.213/2002. Had the present plaintiffs been impleaded as parties in the suit in O.S.No.213/2002, they could have taken a specific plea with regard to the settlement deed and the sale deed executed by Ammasaiakkal and also about the partition in their family. In any event, on the date of filing of the suit, Ammasaiakkal was not the owner of the entire suit property and therefore, the decree passed in O.S.No.213/2002 has to be held as null and void. Similarly the Execution Court did not consider the objections filed by the plaintiffs under Section 47 CPC in E.A.No.35/2018 in E.P. No.14/2017 in O.S.No.213/2002. The only observation made by the Execution Court was that it cannot go beyond the decree. Thus the plaintiffs were not given any opportunity of being heard in any of these proceedings. Both the Courts below had wrongly gone into the other aspects of the case projected by the plaintiffs in the instant suit instead of finding out whether fraud was played on the court by the defendant by not impleading the necessary parties. The preliminary decree passed in O.S.No.213/2002 in the absence of the present plaintiffs is totally wrong and also gross failure of justice. 16. The learned counsel for the appellant contended that based on the settlement deed (Ex.A3) and sale deed (Ex.A4), the first and third plaintiff, have developed their land and there are several coconut trees in the suit property and without considering this aspect, a final decree was passed by the trial court judge. 17. 16. The learned counsel for the appellant contended that based on the settlement deed (Ex.A3) and sale deed (Ex.A4), the first and third plaintiff, have developed their land and there are several coconut trees in the suit property and without considering this aspect, a final decree was passed by the trial court judge. 17. The present plaintiffs should have been shown as the parties in the suit in O.S. No.213/2002 and in the absence of the same, the decree passed in O.S. No.213/2002 cannot be sustained. In the circumstances, the substantial questions of law are answered in favour of the appellants. 18. In the result, i. the Second Appeals are allowed. No costs. Consequently connected miscellaneous petition is closed. ii. The decree and judgment dated 28.07.2021 passed in A.S.No.81/2020 on the file of the Principal District Court, Tiruppur, and the decree and judgment dated 20.03.2020 passed in O.S.No.367 of 2016, on the file of the Sub-Court, Avinashi, are set aside. iii.The decree and judgment dated 28.07.2021 passed in A.S.No.83/2020 on the file of the Principal District Court, Tiruppur, and the decree and judgment dated 20.03.2020 passed in E.A.No.35/2018 in E.P. No.14/2017 in O.S.No.213 of 2002, on the file of the Sub-Court, Avinashi, are set aside. iv. The suit in O.S.No.367 of 2016, on the file of the Subordinate Court, Avinashi, is decreed. v. The defendant is given a liberty to file a fresh suit for partition showing the present plaintiffs as defendants and the plaintiffs can putforth their contentions in the said suit.