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HIGH COURT OF ALLAHABAD
R.R.K.Trivedi
AKHIL KUMAR
Versus
BOARD OF REVENUE LUCKNOW
Decided On : 05 October 1994
Civil M. W. P. No. 29485 of 1994
SETTING ASIDE EX PARTE DECREE - U. P. Z. A. AND L. R. ACT, 1950 - SECTION 151, C. P. C. - INTERESTED PERSON NOT PARTY TO SUIT - POWER OF COURT TO SET ASIDE DECREE - SCOPE.
Fact of the Case:
Petitioners filed a suit for declaration and partition of land under Section 229-B/176 of the U. P. Z. A. and L. R. Act, 1950. During the pendency of the suit, respondents 4 to 6, who had purchased the land from the exclusive tenure-holder, respondent 7, filed an application to set aside the ex parte decree and implead them as defendants. The trial court allowed the application, but the Board of Revenue dismissed the revision filed by the petitioners.
Finding of the Court:
The court held that the impugned orders did not suffer from manifest error of law justifying interference by the court under Article 226 of the Constitution. The court found that respondents 4 to 6 had an interest in the land in dispute, as evidenced by the sale-deeds executed in their favor, and that the petitioners had obtained the decree by concealing this material fact and avoiding necessary parties. The court also found that the trial court had committed an illegality in decreeing the suit without investigating the matter properly.
Issues: 1. Whether a person not party to a suit can apply to set aside an ex parte decree that affects their interest? 2. Whether Section 151 of the Code of Civil Procedure can be invoked to set aside a decree obtained by fraud or concealment of material facts?
Ratio Decidendi: 1. The court held that a person not party to a suit can apply to set aside an ex parte decree that affects their interest, as long as they have some interest in the subject matter of litigation. 2. The court held that Section 151 of the Code of Civil Procedure can be invoked to set aside a decree obtained by fraud or concealment of material facts, even if the provisions of Order IX, Rule 13 of the Code of Civil Procedure do not strictly apply.
Final Decision: The court dismissed the writ petition, holding that the impugned orders were justified and that the petitioners had not shown any manifest error of law.
This writ petition has been filed for quashing the order, dated 30-8-1994, Annexure I passed by the Board of Revenue, by which revision of the petitioners has been dismissed and order dated 10-6-1991, passed by Assistant Collector First Class/sub-Divisional Officer, Sadar Bulandshahr by which he allowed application of respondents No. 4 to 6 for setting aside the ex pane decree and implead them as defendant in the suit filed by petitioner No (. 1, under Section 229-B/176 of U. P. Z. A. and L. R. Act (hereinafter referred to as the Act ).
2. Facts giving rise to this petition are that plot No. 57, area 8-2-14 of Khata No. 75 and plots Nos. 66 and 67, area 1-5-0 and 1-12-10 respectively of Khata No. 26 were recorded as exclusive land holding of respondent No. 7 Sanjay Kumar. Petitioner No. 1 Akhil Kumar, real brother of respondent No. 7, filed the aforesaid suit on 4-11-1987 against Sanjay Kumar and petitioners Nos. 2 to 4 for declaration and partition under Section 229-B/176 of the Act. Gram Sabha and State of U. P. were arrayed as defendants Nos. 5 to 6 in the suit. In this suit, an application was filed on 26-11-1988 saying that parties have compromised and each of the brother has 1/5th share in the land in dispute and prayed that the compromise may be accepted and preliminary decree may be prepared. On this application, the suit was decreed by respondent No. 3 on 20-1-1989. The judgment has been filed as Annexure 4 to the writ petition. A perusal of the order, dated 20-1-1989 shows that the suit was decreed mainly on the basis of the compromise and there is no reference of the Gaon Sabha and State of U. P. as to whether they contested the suit or filed any written statement. By the said order Lekhpal was directed to be summoned for filing Kurras. A final decree was prepared on 27-4-1989 dividing the land in dispute in five
shares. Respondents No. 4 to 6 on knowing about the aforesaid final, decree, moved an application on 27-6-1989 (Annexure VIII to the writ petition) and prayed that the ex parte decree may be set aside and they may be impleaded as defendants in the suit. The facts stated in this application were as under :
(i) That respondent No. 7 Sanjay Kumar was exclusive tenure-holder of the land in dispute. This is his self-acquired property.
(ii) That the applicants (respondents 4 to 6) purchased the land in dispute by two registered sale-deeds executed in their favour on 1-10-1986 and 24-10-1986 for a total consideration of Rs. 69,000.
(iii) That other brothers of respondent No. 7 had no interest. Applications for mutation of their names on the basis of the sale-deeds are pending as case Nos. 110 of 1987 and 18 of 1987 respectively.
(iv) That Raghuraj Singh, father of respondent No. 7 has. filed Original Suit No. 118 of 1986 for cancellation of the sale-deeds which is pending -in Civil Court.
(v) That Sanjay Kumar, respondent No. 7 had also filed Original Suit No. 174 of 1987 for cancellation of sale-deeds which is also pending in the Civil Court.
(vi) That petitioners were necessary parties in the aforesaid facts and circumstances but they were not deliberately impleaded as defendants.
(vii) That decree has been obtained behind their back just to defeat their valuable interest.
(viii) That the decree has been obtained by concealing facts and playing fraud on the Court in collusive manner.
3. The petitioners filed objection on 17-4-1990 and contested this application of -respondents 4 to 6. Respondent No. 3 by order, dated. 10-6-1991 allowed this application, set aside the ex parte decree and impleaded respondents. Nos. 4 to 6 as defendants. Order of respondent No. 3 was challenged by filing
revision before Additional Commissioner who vide order, dated 30-3-1992 recommended to the Board; dated 30-3-1992 recommended to the Board of Revenue to set aside the order of the trial court. The Board of Revenue, however, by order, dated 30-8-1994 after hearing parlies, has refused to accept the recommendatio
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