A decree obtained by fraud is a nullity and can be set aside at any time.

Vinod K.Sharma, J.

1. The petitioner/decree holder has invoked the jurisdiction of this court under Article 227 of the Constitution of India for quashing the order dated 24.4.2006 passed by the learned Civil Judge (Junior Division), Jagadhri allowing application filed by the judgment debtor/respondent under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure (for short the Code) for setting aside the decree dated 31.3.1980.

2. The facts leading to the filing of this revision petition are that the petitioner Vidya Sagar was owner of land measuring 91 kanals 15 marlas situated in village Katewali, Tehsil Jagadhari being half share of land measuring 152 kanals 4 marlas and 31 kanals 6 marlas. The remaining half was owned by his brother Raj Kumar son of Benarsi Dass.

3. On 14.4.1964 Raj Kumar, proforma respondent No.7 acting on his own and alleging himself to be the guardian of the petitioner who was minor at that time sold the entire piece of land measuring 152 kanals 4 marlas and an area of 40 kanals owned by him alone to the judgment debtors (respondents No.l to 6) vide a registered sale deed. The petitioner attained majority on 31.8.1973 and on attaining majority he repudiated the sale and is said to have conveyed this to judgment debtors. It was the case of the petitioner that they refused to put him in joint possession of his share of land.

4. On 28.8.1976 the petitioner filed a suit against respondents No.l to 6 i.e. the vendees and his brother Raj Kumar, who had sold the land including the land of the peitioner. The case of the petitioner is that summons were served personally to all the judgment debtors for 11.5.1998 wherein they put in appearance through their counsel. However, they failed to put up any defence and were subsequently proceeded against ex-parte.

5. The suit was decreed ex parte on 1.3.1980.

6. On 3.1.1992 i.e. almost after 12 years of decree the petitioner filed execution of the decree dated 31.3.1980, notice of which was issued to the respondents No.l to 6 who had put in appearance on 24.10.1992 and sought time for filing objections. The case was adjourned to 21.11.1992 for filing of objections. However, the case was adjourned on number of occasions on the request of the judgment debtors from 21.10.1992 to 21.11.1992, then to 19.12.1992 to 13.2.1993 and then to 17.4.1993. However, no objections were filed. It was the case of the petitioner that respondents No. 1 to 6 had full knowledge of ex parte decree dated 31.3.1980 but due to their own acts of negligence failed to put up defence or apply for setting aside of ex parte decree.

7. On 19.12.1997 the judgment debtors i.e. respondents No.l to 6 filed an application for setting aside the decree dated 31.3.1980. Averments necessary for adjudication of this revision were mentioned in para No.4, 5 and 6 of the application which reads as under:-

"4 That the Honble Court has passed an ex parte order dated 17.3.80 illegally and wrongly. The applicants/Defendants have never been served in the said suit and the learned court has wrongly mentioned that they were duly served and if any report on the summons i.e. an act of fraud and the applicants have no knowledge of the pendency of the aforesaid suit and the summons have not been duly served on the applicants and moreover, the Honble Court has not adopted the mode of substituted service and wrongly and illegally the applicants/defendants have been proceeded ex-parte on 17.3.80.

5. That from the inspection of the file it also came to the knowledge of the applicants/defendants that the said suit has been dismissed in default and even on the previous date the applicant/defendants have never been served and they have not appeared but the plaintiff and defendant No.7 have played a fraud by filing a memo of appearance of an advocate where as the applicant/defendants have no knowledge of the pendency of the said suit and they have never engaged any counsel. It is the defendant No.7 Raj Kumar son of