ORDER

The petitioners - respondent Nos.5 and 6 in FDP No.9 of

2000 on the file of the learned III Additional I Civil Judge (Jr.Dn.) and JMFC, Mysuru, are impugning the order passed on IA.No.15 filed under Order 20 Rule 18 read with Order 26 Rule

13 read with Section 151 of CPC, dismissing the same.

2. Heard Sri R S Ravi, learned senior advocate for Sri D V Narendra Gowda, learned counsel for the petitioners and Sri S A Marathi Prasad, learned counsel for respondent No.1(a).

Perused the materials on record.

3. Learned senior advocate for the petitioners contended that initially, the respondents herein filed the suit OS No.291 of 1991 seeking partition and separate possession of the schedule properties. Defendant - Ashwathnarayan Setty is the brother of the plaintiff who was having title over the suit schedule properties, but he has never contested the suit. During the pendency of suit, the said Ashwathnarayan Setty was shown as dead and the subsequent purchasers were impleaded as defendant Nos.2 to 4, even they have not contested the suit. Accordingly, the suit of the plaintiff for partition and separate possession was decreed by passing a preliminary decree. Later, the plaintiff has filed FDP No.9 of 2000 praying for passing the final decree. During the pendency of final decree, respondent Nos.5 and 6 came to know about the same and got them impleaded in the final decree proceedings. They came to know that the preliminary decree was obtained for playing fraud and by collusion between the plaintiff and defendants and therefore IA.No.15 was filed seeking to set aside the preliminary decree, which is the product of fraud, misrepresentation and collusion. The said application came to be dismissed.

4. Learned senior advocate placed reliance on the decisions of the Hon'ble Apex Court in S P Chengalvaraya Naidu (dead) by LRs Vs Jagannath (dead) by LRs and Others1, State of A.P. and another Vs T Suryachandra Rao2, Ram Chandra Singh Vs Savitri Devi and Others3, in support of his contention that when the preliminary decree is a product of fraud, misrepresentation and collusion, the procedure contemplated under CPC cannot come in the way of

1 AIR 1994 SC 853 2 AIR 2005 SC 3110

(2003) 8 SCC 319 setting aside the same. Hence, he prays for allowing of petition.

5. Per contra, learned counsel for the respondents opposing the petition submitted that the petitioners have never raised the plea of fraud committed before the Trial Court while passing the preliminary decree. Ashwathnarayan Setty was very much alive when the preliminary decree was passed. He was even alive and had filed a memo in the FDP. Even when Ashwathnarayan Setty died, the subsequent purchasers were impleaded as respondent Nos.2 to 4. They have also not chosen to contest the proceedings. The only contention raised by the petitioners before the final decree Court is that the preliminary decree was obtained by collusion. The contention now raised by the petitioners that the fraud and misrepresentation was never raised before. None of the parties including the petitioners have challenged the preliminary decree by filing an appeal.

6. Learned counsel further submitted that the petitioners herein filed OS No.519 of 2016 seeking declaration of their title against the plaintiff herein. The said suit came to be filed in the year 2016, but they have never challenged the preliminary decree passed by the Trial Court. Under such circumstances, the final decree Court was right in rejecting the application. There is no reason to interfere with the impugned order. Hence, he prays for dismissal of the petition.

7. Admittedly, the suit OS No.291 of 1991 was filed by the plaintiff against his brother Ashwathnarayan Setty for partition and separate possession of few items of properties. It is stated that item Nos.2 to 5 were deleted during the pendency of suit. Ashwathnarayan Setty had not contested the suit. Even though it is stated that Ashwathnarayan Setty said to have died during the pendency of suit