Ex-parte Decree—Setting aside of—Separate Suit is maintainable to challenge an ex-parte decree but the same can only be allowed if the court comes to a conclusion that previous ex-parte decree was result of fraud

Mr. Anil Kshetarpal, J. - By this judgment, RSA No.3776, 3868 of 2008, Civil Revision No. 8874 of 2017 and COCP No. 2011 of 2016 shall stand disposed of. In both the regular second appeals concurrent findings of the courts below have been challenged.

2. In the considered view of this court, two issues need determination. For Subsequent orders see RA-CR-232-CII-2018

(1) What is the scope of a separate suit filed to challenge the ex-parte decree passed by a competent court of jurisdiction?

(2) Whether in absence of any notification or evidence, the property can be held to be evacuee property?

3. Two suits were filed. One by Ram Lal seeking declaration with a consequential relief of permanent injunction challenging civil court judgment and decree passed in Civil Suit No.213 of 1985, decided on 20.10.1985. The second suit was filed by Man Singh, defendant in the first suit, seeking decree of permanent injunction. Both the suits were consolidated and disposed of by a single judgment passed by the trial court. Two appeals filed by the appellant herein i.e. Ram Lal have also been disposed of by a common judgment by the first appellate court.

4. It is significant to note that all the parties are successor-ininterest of one Ganga Ram. Ganga Ram had four sons, namely, Ram Lal, appellant herein, Late Shri Mange Ram, Ram Singh and Man Singh. It is the case of the plaintiff that some property was ancestral whereas some of the property was his self acquired and Ganga Ram, their father had permitted defendant no.1 and 2 to raise construction and they have taken over plot more than their share. It is claimed that property No.3ND was purchased by the plaintiff on 25.06.1987 from the Custodian Department. It is further pleaded case of the plaintiff that in the year 1995, plaintiff filed a suit restraining the defendants from raising construction, in which compromise was arrived at on 11.08.1987 to the effect that defendants would hand over 125 Sq. yards land but the defendants have failed to implement the aforesaid settlement. It was further claimed by the plaintiff that Man Singh filed a suit which was decreed ex-parte by the court on 23.10.1985 and he (plaintiff-appellant herein) was wrongly proceeded against ex-parte and therefore the ex-parte judgment and decree is result of fraud.

5. Defendants contested the suit and pleaded that plaintiff has an alternative remedy of filing an application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree. It was further pleaded that none of the brothers is in occupation of more than his 1/4th share. The existence of any compromise on 11.08.1987 was disputed.

6. Both the courts after appreciating the evidence have dismissed the suit filed by Ram Lal (appellant herein), and decreed the suit filed by Man Singh for injunction. In short both the courts have found that sale of property by the custodian department is sham as it is not proved on the file that the property was ever a custodian property. The courts have further found that plaintiff Ram Lal had failed to prove that there was any fraud in obtaining the decree dated 23.10.1985.

7. This court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below and the record.

8. Learned counsel while referring to Ex.P18, a copy of the summons, issued in the previous suit of 1985 has submitted that since the report on the aforesaid summons is factually incorrect, therefore, ex-parte decree is result of fraud. Learned counsel has submitted that on Ex.P18, report dated 30.04.1985 by the Process Server records that when process server visited the residence of Ram Lal, appellant herein, it was reported by his mother that he has gone out for work but she refused to accept the summons and, therefore, copy of the summon of the court was pasted outside the residence of Ram Lal. He submitted that undisputedly, she had died before that date and therefore the report