Case Note & Summary
The appeal arose from a suit for declaration and setting aside a preliminary decree passed in an earlier partition suit. The original suit had been filed by the appellants (sons of Narayana Reddy) against their father and others, including the respondent No.1 as purchaser, for partition of a BDA site purchased from joint family funds. That suit was decreed on 30.10.1990 after contest, granting the appellants a 2/5th share. The respondent No.1, who was defendant No.5 in that suit, did not cross-examine the plaintiffs. Five years later, he filed O.S.No.7082/1995 alleging that the decree was obtained by fraud and that his counsel had assured him he need not appear unless summoned. The trial court decreed the suit on 9.11.2004, holding that fraud vitiated the earlier decree. On appeal, the High Court examined the twin contentions of limitation and pleading of fraud. It was undisputed that the earlier decree was passed on merits, the plaintiff had engaged a senior counsel, filed written statement, but chose not to contest. The suit to set aside that decree was filed in 1995, beyond the period prescribed under Article 123 of the Limitation Act, 1963. The plaintiff admitted in cross-examination that he had knowledge of the decree in 1994 when served with final decree proceedings. The Court noted that no specifics of intrinsic or extrinsic fraud were pleaded; the plaint merely used the word 'fraud' without any material particulars. The allegations that the advocate and defendant No.1 assured him not to worry were not substantiated. The Court distinguished the cited judgments and held that a party who was aware of the proceedings and represented by counsel cannot later mount a collateral challenge on the ground of fraud when the decree was not ex parte. The Court observed that fraud must be pleaded and proved strictly; a mere bald allegation cannot vitiate a valid decree. Consequently, the appeal was allowed, the judgment and decree of the trial court were set aside, and O.S.No.7082/1995 was dismissed as barred by limitation and lacking in merit. The earlier decree in O.S.No.3245/1980 was upheld.
Headnote
A) Limitation - Setting Aside Decree on Ground of Fraud - Suit filed after five years of decree held barred by limitation - Article 123 Limitation Act, 1963 - The plaintiff in the earlier suit was a party and had appeared through counsel; summons served; by his own admission he received notice of FDP in 1994 but filed suit only in 1995 - Held, the suit was barred by limitation as per Article 123 of the Limitation Act, 1963 (Paras 10-15). B) Civil Procedure - Fraud - Pleading Requirements - Code of Civil Procedure, 1908, Order 6 Rule 4 - Allegation of fraud must be pleaded with material particulars; mere statement that decree was obtained by fraud is insufficient - In the present case, no specific particulars of any fraud on the court were pleaded; no evidence was led to prove any deceitful practice - Held, fraud was not proved; the decree could not be set aside on vague allegations (Paras 6-9, 17). C) Partition - Joint Family Property - BDA site purchased out of joint family funds - Previous partition decree in O.S.No.3245/1980 granting share to sons held valid - Sale by father to stranger without legal necessity gave rise to cause of action for sons - The earlier decree, being contested and on merits, was not shown to be fraudulent; therefore, the later suit to set it aside was not maintainable (Paras 4-5). D) Civil Procedure - Remedy for Decree Obtained in Presence of Party - A party who appears and contests a suit cannot file a fresh suit to set aside the decree on ground of fraud without first exhausting remedies like Order 9 Rule 13 CPC - The plaintiff in the earlier suit had filed written statement but chose not to cross-examine - Held, separate suit was not the proper remedy; the earlier decree could not be impugned collaterally (Paras 8-9).
Issue of Consideration
Whether the suit O.S.No.7082/1995 filed by respondent No.1 to set aside the decree in O.S.No.3245/1980 on the ground of fraud was barred by limitation and whether fraud was sufficiently pleaded and proved?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 9.11.2004 in O.S.No.7082/1995, and dismissed the suit as barred by limitation and for lack of pleading and proof of fraud. The earlier preliminary decree in O.S.No.3245/1980 was upheld.
Law Points
- Suit to set aside decree on ground of fraud must be filed within limitation
- Article 123 Limitation Act applies
- mere allegation of fraud without pleading and proof cannot vitiate decree
- duty of party to contest suit
- if party served and appeared
- remedy is under Order 9 Rule 13 CPC
- not independent suit
