A decree obtained by fraud can be challenged even after execution, and the maintainability of such suits is not restricted by execution proceedings, establishing fraud as a valid ground for separate challenges.

JUDGMENT :

M.A. ABDUL HAKHIM, J.

1. The appellant is the first defendant in the suit. The suit was originally filed by one Shoukathumma @ Shoukath Beevi against two defendants to set aside the decree obtained by the defendants against the plaintiff in A.S.No.92/2002 of the District Court, Kollam, to the extent to which it relates to the plaintiff as the same was obtained by the defendants fraudulently and collusively, to recover possession of plaint B schedule property from the first defendant, to put up boundary of A & B schedule properties together or separately and for consequential injunction.

2. The plaint A schedule property is having an extent of 2.35 Ares and the buildings and improvements therein. Plaint B schedule property is having an extent of 1.08 Ares forming the north-western portion of the plaint A schedule property and the building and improvements therein.

3. The plaintiff filed the suit claiming that the plaintiff obtained the plaint A schedule property and the building therein as per Sale Deed No.2142/1975 for valid consideration that the plaint schedule property is a Revenue puramboke and hence the plaintiff did not get Patta. The plaint A schedule property exclusively belonged to the plaintiff since 18.08.1975. The first defendant filed O.S.No.102/1997 before the Munsiff Court, Kollam, with respect to plaint B schedule property against the plaintiff and six others. The plaintiff did not get any summons or notice in the said suit and hence the plaintiff could not appear and contest the said suit. Though the plaintiff, who was impleaded as the 7^th defendant in the said suit was set ex parte, the said suit was dismissed by the Munsiff Court. The first defendant filed A.S.No.92/2002 before the First Appellate Court. The plaintiff received notice in the Appeal. The notice in the Appeal was entrusted to the second defendant, who agreed to engage an Advocate for the plaintiff. The second defendant obtained amounts from the plaintiff for conducting the case and the plaintiff was made to believe that the case had been properly prosecuted. The plaintiff is an illiterate and hence all the papers received from the court were entrusted to the second defendant. The first defendant and his agents, along with the Amin from the Additional Munsiff Court, Kollam evicted the plaintiff from plaint B schedule property. The defendants entered into a conspiracy and obtained the decree in A.S.No.92/2002 fraudulently and hence the decree is liable to be set aside.

4. On the death of the original plaintiff, the additional plaintiffs 3 to 6 were impleaded as her legal heirs. Since the property involved is a puramboku land, the State of Kerala, the Tahsildar and the Village Officer concerned were impleaded as the defendants 3 to 5.

5. The first defendant filed written statement contending, inter alia, that the suit is not maintainable under Section 47 of the Code of Civil Procedure as the plaint B schedule property is delivered to the first defendant in E.P.No.172/2008 in execution of the decree in O.S.No.102/1997. If the plaintiff had any objection regarding the delivery, it has to be adjudicated before the Execution Court and not by a separate suit and that the suit is barred by res judicata.

6. The second defendant remained ex parte.

7. The defendants 3 to 5 filed Written Statement as well as Counter Claim contending that the plaint schedule property absolutely belonged to the Government and nobody has any right, title or interest therein. The judgment and decree in O.S.No.102/1997 and A.S.No.92/2002 are not binding on the Government with re