Suit filed by appellants dismissed as barred by res judicata.

1. The appellants plaint was rejected underO.7, Rule 11, C.P.C. as barred by res judicata.

2. The respondent filed a suit against the appellants for partition and separate possession. Preliminary decree was passed on 30.4.1985. Thereafter, the respondent applied for passing of final decree on 9.4.1986. The appellants entered appearance on 16.8.1986 and filed an application to set aside the ex parte decree along with an application to condone the delay of 470 delays. According to them, even before the passing of preliminary decree, there was a Panchayat and the respondent had agreed to receive Rs.2,000 in lieu of his claim and also promised to withdraw the suit. The appellants under the impression that the suit would be withdrawn, had not appeared in Court on the date when preliminary decree was passed. Only when they received notice of the final decree proceedings, they came to know of the fraud committed by the respondent. So they filed an application to set aside the ex parte decree. But there was a delay of 470 days which had to be condoned. The trial Court condoned the delay. But in revision filed against that in C.R.P. No.1632 of 1988, this Court had set aside the order of the trial Court on 24.9.1993. Thereafter, the appellants filed O.S. of 1997 for a declaration that the decree is invalid on the ground of fraud. This was rejected by the District Munsif, Sirkazhi on the ground that the suit is barred by res judicata. Against that, the appellants preferred an appeal to the Principal Sub Court, Mayladuthurai who confirmed the same and therefore, this second appeal.

3. Three substantial questions of law were framed by this Court while admitting the second appeal.

“(1) Whether the Courts below erred in holding that the decision rendered in an interlocutory application would operate as res judicata for the subsequent suit?

(2) Whether the Courts below erred in rejecting the plaint on the ground the same is barred by res judicata without numbering the plaint and permitting the parties to let in evidence?

(3) Whether the lower appellate Court erred in holding that the present suit is barred by res judicata and cannot be re-opened because the earlier suit reached its finality even if there is an allegation of fraud contrary to the decision of Supreme Court reported in S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath (1994)1 S.C.C. 1?“

4. Mr.A.Muthukumar, learned counsel for the appellants submitted that fraud avoids all judicial acts as laid down in the decision reported in S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath (1994)1 S.C.C. 1, where it was held that a judgment or decree obtained by playing fraud is a nullity and the principle of” finality of litigation “cannot be pressed to the extent that it becomes an engine of fraud in the hands of dishonest litigants. The learned counsel submitted that the principle of res judicata is based on the salutary principle that every action must attain a finality and the same bogey cannot be raised again and again. But that will not apply in cases of decrees obtained by fraud because such decrees are non-est and therefore cannot operate as res judicata. He also relied on the decision reported in Beli Ram and Bros. v. Mohjd. Afzal A.I.R. 1948 P.C. 168 which is to the same effect and the decision in Vellappan v. Peter Thomas A.I.R. 1979 Ker. 194. He also referred to Sec.44 of the Evidence Act which carves out an exception to Sec.11, C.P.C. He would therefore submit that the Court atleast ought not to have rejected the plaint even at the threshold, but should have given an opportunity by taking the suit on file and after trial, arrived at a decision on merits.

5. Mr.P.Veeraraghavan, learned counsel for the respondent on the other hand submitted that when fraud is alleged, the least that the suitor should do is give particulars of the fraud and in this case,