important point
A decree which has been obtained by suppression of fact or collusively would not be executable against those who were not parties to the suit.

judgment

S.B. Sinha, J. —

1.Leave granted.

2.A question of some importance as to whether a third party can be impleaded in a suit filed under Order I Rule 8 of the Code of Civil Procedure is involved in this appeal which arises out of the judgment and order dated 30th June, 2005 passed by a Learned Single Judge of the Kerala High Court in CRP No. 272 of 2004 dismissing the revision application filed by the appellant herein challenging the order dated 17.10.2003 passed by Additional sub Court, Kottayam.

3.The basic fact of the matter is not in dispute.

4.Appellant herein filed Original Suit No. 364 of 1997 in the Court of Additional Sub Court, Kottayam, for declaration of his title and for possession of the suit property. A prayer therein was made for restraining the defendants who were three in number (Respondent Nos. 3 to 5 herein) from interfering with his right to enjoy the property by entering upon it or using it as a pathway as if it was a public pathway. A purported publication was also made in a newspaper purported to be in terms of Order I Rule 10 of the Code of Civil Procedure.

5.Respondent Nos. 3 to 5 herein did not appear in the suit as a result whereof, an ex-parte decree was passed on 26.3.1998. An application for execution of the said decree was filed. Respondent Nos. 1 and 2 herein in the said execution case filed five applications, the details whereof are as under:

I.A.No.965/2002- Under Order 9 Rule 13, for setting aside the exparte decree.

I.A.No.966/2002- For Condonation of Delay

I.A.No.967/2002- Application for Stay of all the proceedings in the execution.

I.A.No.968/2002- Application filed by the respondent no.1 for permission to contest the suit and to add himself in the array of parties as additional defendant No.1.

I.A.No.969/2002-Application filed by respondent No.2 for permission to contest the suit and for making her as additional defendant No.5.

6.The Executing Court allowed I.A No. 968 of 2002 and 969 of 2002 impleading respondent Nos. 1and 2 as defendant No. 5 and 7 in the suit. The Revision Application filed thereagainst has been dismissed by a Single Judge of the High Court by reason of the impugned judgment.

7.Mr. V.J. Francis, learned counsel appearing on behalf of the appellant, submitted that a suit, wherein notice under Order I Rule 8 of Code of Civil Procedure has been issued, could not have been reopened at the instance of the respondent Nos.1 and 2 herein without allowing their application for condonation of delay and for setting aside the ex parte decree. It was urged that no case has been made out for condonation of delay as the applications for setting aside the ex parte decree was filed after more than four years from the passing thereof.

Respondent Nos. 1 and 2, in any event, it was contended, could not have represented the panchayat and, thus, the impugned order is unsustainable.

8.Mr. M.T. George, learned counsel appearing on behalf of the respondent, however, would support the impugned judgment.

9.The suit land measuring 450 ft. x 4 ft. starts from Vattachalpady junction of Manarcadu-Thengana PWD road and ends at Kuttiyilpadyperumpanachi Panchayat road on the east. Respondent Nos. 1 and 2 were not parties to the suit. They, in their applications, inter alia, contended that the appellant and the respondent Nos. 3 to 5 herein are neighbours and close associates. The suit was a collusive one. Leave of the Court under Order 1 Rule 8 was obtained on a misrepresentation.

10.A specific contention was also raised that plaintiff-petitioner deliberately and intentionally had not impleaded the users of the pathway in the said suit. It was stated that publication of the notice purported to be under Order 1 Rule 8 CPC was made is the newspapers which did not have wide circulation in the locality.

11.The High Court has, inter alia, relying upon the decision of the Madras High Court in Swaminatha Mudaliar vs. Kumaraswami Chettiar and others [(1923) 44 MLJ 282] accepted the said contentions of the