Filing of suit by committing fraud.

1. This civil revision petition has been filed against the fair and decretal order dated 20.7.1998 made in E.A.No.32 of 1998 in E.P.No.79 of 1996 in O.S.No.346 of 1990 on the file of the Court of Principal District Munsif, Sivagangai.

2. In fact, the application in E.A.No.32 of 1998 was filed by the petitioner herein, under Sec.47 of the Code of Civil Procedure on averments that though he got impleaded as the second defendant to the suit in O.S.No.346 of 1990 filed by the respondent herein, he did not at all know about his impleadment and whatever that oc- curred in the suit: that one Meyyammal Aachi filed the suit in O.S.No.l 14 of 1971 against the respondent herein before the Court of District Munsif, Sivagangai and the said suit having been decreed, an application in E.P.No.291 of 1974 had been filed and the properties have been sold in court auction on 27.1.1976 and the successful bidder in this Court auction was one Kodhaiyammal for Rs.2,250 and thereafter as per the order passed in E.A.No.98 of 1976, dated 12.6.1976, delivery of possession of the said property had also been effected as a result of which, the said Kodhaiyammal became the absolute owner of the suit properties.

3. The further averments of the petition are that thereafter the petitioner, on 24.5.1990, purchased the suit properties from the said Kodhaiyammal and right from that day he is in possession and enjoyment of those properties besides the patta being granted in his favour: that the auction sale purchase had been effected in favour of Kodhaiyammal, which included the mortgage deed: that since the said Kodhaiyammal, not in her capacity as the mortgagee, but as the full-fledged owner, was in enjoyment of the property on the date of the suit, the respondent herein cannot ask for redemption of the mortgage as a result of which, the decree passed in the suit has become incapable of being executed and the same has become nullity rather and moreover, the death of the said Kodhaiyammal was suppressed by the respondent. On such grounds, the petitioner would pray to declare the decree as “incapable of execution and became nullity.

4. In the counter affidavit filed on behalf of the respondent, she would allege that in spite of many summons having been sent to the petitioner besides by affixture and paper publication, without any genuine reason and on manipulated records, the petitioner has now come forward to testify the validity of the decided matters in this application and hence this application is liable to be dismissed in limini. It is further submitted in the counter that it is false to allege on the part of the petitioner that is ignorant of anything that had happened in the suit; that having created a false sale deed in connivance with the said Kodhaiyammal, the petitioner has now come forward with the false claim, which cannot bind this respondent in any manner: that it is again incorrect and objectionable to state that the decree obtained in the suit is incapable of execution and a nullity; that having filed an application to set aside the judgment and decree with the delay excuse petition and the said application having been dismissed, now, the petitioner has come forward to raise the same plea in this application at the execution stage and hence the application becomes liable to be dismissed; that only because of the death of the first defendant to the suit viz., Kodhaiyammal, this petitioner has been impleaded as the second defendant to the suit, as per the orders passed in I.A.No.503 of 1991, dated 3.10.1991 and there is no suppression of any fact as falsely alleged by the petitioner: that having created a false sale deed in connivance with Kodhaiyammal and in spite of having been impleaded as the second defendant to the suit and in spite of sufficient notice having been sent to conduct the case, the petitioner left the case to be decided against him ex parte, which was confirmed upto the High Court, and now he has come forward with the w