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2019 Supreme(Kar) 1349
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
N. Krishna Reddy, Since Deceased By Lrs. And Ors. – Appellants
Versus
C.K. Varkey, S/o Zakaria and ors. – Respondents
RFA.No.279 of 2005 (DEC)
Decided On : 27-11-2019
For the Appellant :Sri B. Ramesh, Advocate, Sri K.B. Monish Kumar, Advocate for Smt. Vijetha R. Naik, Advocate
For the Respondent:Sri. Tomy Sebastian, Senior Counsel for, Sri. Alwyn Sebastian, Advocate, Sri. T.H. Venkatappa, Advocate
Headnote:
Civil Procedure Code,1908 - Section 96(2) - Order 9 - Rule 13 - Benefit to estate sold - Property reserving right to claim - Respondent are brothers appellants and they were defendant before Court below - Respondent is mother of appellants and she was defendant said suit - It is contention of defendant in this appeal that plaintiff filed suit in seeking relief of declaration that judgment and decree passed former which was passed is null and void and unenforceable against plaintiff and sought for setting aside judgment and decree - Said suit was filed after five years of preliminary decree – Held, Court also in judgment referred supra has categorically that apart from relief Order Rule or filing of an appeal Section Code of Civil Procedure plaintiff can file suit when fraud has been attributed - In case on hand it is specific contention that he came to know decree in year and defendants have also failed to prove that he had knowledge of decree in year itself and no material is placed on record in support of fact that he had knowledge prior - When such being case Article is applicable since limitation prescribed is of three years from date when right to sue accrues - In case of fraud question of limitation also does not arise and only when right to sue is accrued same has to be questioned and prayed to set aside judgment and decree within three years - Plaintiff filed suit on ground of fraud and this Court confirmed judgment of Trial Court that fraud has been played in getting decree – Hence very judgment is nullity and no nest and Court has to bear in mind that no one gets away with fraud misrepresentation or interpolation by taking recourse to technicalities of law and limitation - It is always open to Court to recall order on application of person aggrieved and such power can also be exercised by Appellate Court and judgment and decree amounts to nullity – Hence contention of defendants in this appeal that suit is barred by limitation cannot be accepted – Therefore court answer point in negative - Appeal dismissed
JUDGMENT :
This appeal is filed challenging the judgment and decree dated 9.11.2004 passed in O.S.No.7082/1995 on the file of the VIII Additional City Civil Judge, Bengaluru City (CCH-15).
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
Brief facts of the case:
3. It is the case of the appellants/defendant Nos.1 and 2 that the father of the defendant Nos.1 and 2 one Narayana Reddy S/o Gurappa died on 18.10.1992. The respondent No.1 is the plaintiff before the Court below. The respondent Nos.2 and 3 are the brothers of the appellants and they were the defendant Nos.3 and 4 before the Court below. Respondent No.4 is the mother of the appellants and she was defendant No.5 in the said suit. It is the contention of the defendant Nos.1 and 2 in this appeal that the plaintiff filed a suit in O.S.No.7082/1995 seeking the relief of declaration that the judgment and decree passed in O.S.No.3245/1980 (former O.S.No.180/1978) which was passed on 30.10.1990 is null and void and unenforceable against the plaintiff and sought for setting aside the judgment and decree. The said suit was filed on 20.10.1995 after five years of the preliminary decree.
4. Sri Narayana Reddy, father of the appellants had a brother by name Sri Nagappa Reddy. Sri Nagappa Reddy had filed a suit against Narayana Reddy in O.S.No.54/1959 on the file of the Civil Judge for partition and separate possession in respect of joint family properties and three items were involved in the said suit for partition. The said suit was decreed. Thereafter, all the three schedule items were sold and the sale proceeds were divided equally between Narayana Reddy and Nagappa Reddy pursuant to the directions in the decree in O.S.No.54/1959. Narayana Reddy got about Rs.12,000/-. Then there was a public auction of the site by the BDA and the amount of Rs.12,000/- was utilized for the purpose of purchase of the site bearing No.192 (Old No.4) 3rd Cross, Cambridge Layout, Ulsoor, Bangalore. The public auction by the BDA was held in the year 1962. Thus, the BDA site became the Joint Hindu Family property in the hands of Narayana Reddy, as he got the money by the sale of his portion of certain items of properties involved in O.S.No.54/1959. In fact, those properties had been willed in favour of the children by the grandfather Gurappa Reddy. In Gurappa Reddy’s hands they were ancestral joint family properties.
5. Narayana Reddy without legal necessity and without there being any benefit to the estate sold the said site on 19.5.1978 in favour of the plaintiff/respondent No.1. As the sale was not for legal necessity, the plaintiffs (appellants herein) filed a suit in O.S.No.3245/1980 against Narayana Reddy as the defendant No.1 and defendant Nos.2, 3 and 4 being the mother and brothers of the plaintiffs and defendant No.5 being the present plaintiff/purchaser of item No.1.
6. The said suit was contested by all the defendants including defendant No.5, i.e., the present plaintiff and he filed the written statement in the said suit. The Court below in the said suit framed the issues based on the pleadings and thereafter, recorded the evidence and decreed the suit. The present plaintiff who has been arrayed as defendant No.5 did not cross-examine the plaintiffs for the reasons best known to him. The suit was decreed on 30.10.1990 granting 2/5th share in item No.1 of the schedule to the plaint in O.S.No.3245/1980. The present plaintiff has challenged the said judgment and decree after five years of the decree. The said suit was barred by time and the same was not an ex-parte decree. In fact, the plaintiff did not contest the case. However, he filed the said suit on the ground that there was a fraud. The particulars of fraud have not been pleaded in the suit. Inspite of it, the Trial Court has granted the decre
