Case Note & Summary
The appellant, Shri Gurudas B. Velip, challenged an order dated 5 December 2006 passed by the Civil Judge, Senior Division at Quepem, in Special Inventory Proceedings No. 9/2003/A. By that order, the trial court allowed applications filed by the respondents (Gopal Malu Gaokar, Smt. Parvati Baburao Gaokar, and Harischandra Babu Raikar) to set aside the judgment and decree dated 10 July 2001, which had partitioned the properties of the deceased Narayan Gaokar and Smt. Abolem Narayan Gaonkar. The respondents alleged that the appellant had committed fraud by concealing their names as legal heirs and not citing them as interested parties. The trial court, relying on Article 771 of the Portuguese Civil Procedure Code, set aside the final judgment. The appellant contended that the applications were not maintainable because the proper remedy for challenging a final decree on grounds of fraud is by filing a suit, not an application. The respondents argued that the fraud justified setting aside the decree. The High Court examined the applicable law and found that rescission of a final partition is governed by Article 1427 of the Portuguese Civil Procedure Code, not Article 771. The court held that the applications under Article 771 were not maintainable and that the respondents' remedy lay in filing a separate suit. Consequently, the High Court allowed the appeal, set aside the impugned order, and dismissed the respondents' applications.
Headnote
A) Civil Procedure - Inventory Proceedings - Rescission of Final Partition - Article 1427 of Portuguese Civil Procedure Code - The court held that rescission of a partition which has become final for want of appeal is governed only by Article 1427 of the Portuguese Civil Procedure Code, and not by Article 771. The application under Article 771 was not maintainable as the proper remedy for challenging a final decree on grounds of fraud is by way of a suit. (Paras 5-6) B) Civil Procedure - Fraud - Setting Aside Decree - Proper Remedy - The court observed that where a final judgment in inventory proceedings is alleged to have been obtained by fraud, the aggrieved party must file a separate suit to set aside the decree, and cannot seek rescission by way of an application under Article 771. The impugned order allowing such application was set aside. (Paras 5-6)
Issue of Consideration
Whether the application filed by the respondents to set aside the final judgment and decree in inventory proceedings on the ground of fraud was maintainable, and whether Article 771 of the Portuguese Civil Procedure Code was applicable.
Final Decision
Appeal allowed. Impugned order dated 5th December, 2006 set aside. Applications filed by respondents at exhibits 13, 20, and 25 stand dismissed.
Law Points
- Rescission of final partition
- Fraud in inventory proceedings
- Maintainability of application to set aside decree
- Applicability of Article 771 vs Article 1427 of Portuguese Civil Procedure Code
