A decree obtained by fraud can be cancelled, but the fraud must be specifically pleaded and proved.

1. This second appeal and the civil revision petition arise out of the common judgment rendered in A.S. 124 and 125 of 1970 on the file of the Sub Court, Mayuram.

2. One Ekambaram, hereinafter referred to as the tenant, has filed a suit, in O.S. 219 of 1978 on the file of the District Munsif court, Sirkali, against the Devastanam of which he is the tenant of cancellation of the decree passed in O.S. 581 of 1973 on the file of the District Munsif Court, Sirkali. In that suit, he averred that he was a tenant in respect of a house belonging to the Devastanam in South Madavilagam St., Udaiyavarkoilpathu vattom, Akkur that he was paying rent regularly till December 1972, that at the end of December 1972 he vacated the house, that in September 1977 he received a notice from the Devastanam calling upon him to vacate the house and to pay the arrears of rent and subsequently a suit in O.S. 50 of 1978 for recovery of possession and collection of arrears of rent was filed. He further averred that he is contesting that suit that he was not aware of the decree passed in O.S. 581 of 1973, for alleged arrears of rent of Rs. 720 that he was not served with any notice, that the Devastanam after effecting substituted service at a place where the tenant did not reside has obtained a decree in O.S 581 of 1973, fraudulently behind the back of the tenant and that the decree obtained by the defendant against the tenant in O.S. 581 of 1979 is not valid and binding on the plaintiff and therefore it is necessary that the decree in O.S. 581 of 1973 should be cancelled.

3. That suit was resisted by the Devastanam which stated that the plaintiff was always in arrears and continued to be in possession even after December 1972, that vacant possession was handed over to the Devastanam by the Executive Officer, Thillayadi, by the end of January 1978 that the tenant knew about the decree passed against him and that his claim that he was not aware of the decree or that it was obtained by fraud is wrong.

4. The Devastanam filed O.S. 50 of 1978 on the file of the District Munsif court, Sirkali, against the tenant for recovery of arrears of rent from fasli 1383 till 1386 and half of fasli 1387 at the rate of Rs.

180 per fasli. The tenant resisted that suit on the same grounds alleged in the plaint for cancellation of the decree passed in O.S. 581 of 1973. He would say that he vacated the premises in December 1972, that he was not in occupation thereafter and that he is not liable to pay any amount.

5. The learned District Munsif dismissed the suit of the tenant in O.S. 219 of 1978 and decreed the suit of the Devastanam for arrears of rent. Against the judgment and decree in O.S. 219 of 1978, the tenant preferred A.S. 124 of 1979 and against the judgment and decree in O.S. 50 of 1978 he filed A.S. No. 125 of 1979. The appellate Judge reversed the judgment and decree in O.S. 219 of 1978, and decreed that suit and dismissed the suit of the Devastanam in O.S. 50 of 1978 for arrears of rent. Aggrieved, the Devastanam has filed S.A. 509 of 1983 against the judgment and decree in A.S

124 of 1979 and C.R.P. 1520 of 1983 against the judgment and decree in A.S. 125 of 1979.

6. S.A. 509 of 1983—The tenant prayed for relief of cancellation of the decree in O.S. 581 of 1973, on the file of the District Munsifs of Sirkali. O.S. 581 of 1973 was a suit filed by the Devastanam for arrears of rent amounting to Rs. 720 against the tenant. The defendant-tenant was not served personally. Substituted service was effected and the suit was decreed ex parte. According to the tenant who has filed the suit O.S. 219 of 1978 out of which this second appeal arises, the decree in O.S. 581 of 1973 ‘was obtained fraudulently behind his back.’ It is pointed out by the learned counsel appearing for the appellant that particulars of fraud have not been furnished in the plaint and in that circumstances, the judgment of the appellate Court decreeing the suit O.S. 219 of 1978 is against law.