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2024 Supreme(Online)(MAD) 1008
HIGH COURT OF MADRAS
Honourable Mr Justice V.SIVAGNANAM
T.R.Subramanian – Appellant
Versus
J.D.Irudayaraj(DIED) – Respondent
A court may set aside a decree if it is shown that the decree was obtained by fraud or the parties did not receive proper notice, emphasizing the necessity of fair procedure in judicial actions.
Headnote:
Civil - Specific Performance - I.A.No.1/2022, O.S.No.47/2015 - The court addressed the delay in setting aside an ex parte decree based on alleged fraud in the proceedings, ultimately upholding the trial court's order to condone the delay due to insufficient service of notice and fraudulent actions.
Fact of the Case:
The plaintiff filed for specific performance against multiple defendants, resulting in an ex parte decree due to their absence. The fifth defendant later sought to set aside this decree citing delays and fraud in the initial proceedings, claiming lack of proper notice.
Finding of the Court:
The court found that the ex parte decree was obtained under fraudulent circumstances, as the defendants were misrepresented and lacked proper notification regarding the suit, thus supporting the trial court's decision to condone the significant delay.
Issues: Whether the trial court erred in condoning the 1416-day delay to set aside the ex parte decree based on allegations of fraudulent proceedings and lack of proper service.
Ratio Decidendi: The court upheld the findings of the lower court regarding the fraud and improper service, reflecting the importance of fair process in judicial proceedings.
Final Decision: The civil revision petition is dismissed.
ORDER
This civil revision petition has been filed to set aside the fair and decreetal order in I.A.No.1/2022 in O.S.No.47/2015, dated 07.09.2023, passed by the learned II Additional District Judge, Vellore @ Ranipet.
2. The petitioner herein is the plaintiff and he filed the above said suit for specific performance, directing the defendants 1 to 7 to execute the sale deed in favour of the plaintiff, as per the sale agreement dated
07.01.2011 entered into between the plaintiff and the first defendant. In the above said suit, the defendants were set exparte and exparte decree was passed on 17.12.2015, infavour of the petitioner/plaintiff. Subsequently, the petitioner filed E.P.No.66/2016 to execute the decree and during the execution proceedings, a sale deed was executed by the Court in favour of the petitioner on 23.08.2017. In such circumstances, the first respondent herein/5th defendant filed I.A.No.1/2022 in O.S.No.47/2015 to condone the delay of 1416 days along with the petition to set aside the exparte decree, dated 17.12.2015. The above petition was allowed by condoning the delay and challenging the same, this civil revision petition has been filed.
3. The learned counsel for the petitioner submitted that the respondents were having knowledge of the suit proceedings as well as the execution proceedings, but they wantonly failed to appear before the trial court. He further submitted that after getting the sale deed through court of law, the petitioner had sold some of the properties to the third parties and now, third party interest also created in the suit property. However, the Trial Court, without any genuine reason, has condoned the huge delay of
1416 days, which is liable to be set aside.
4. The learned counsel for the respondents, supporting the impugned order passed by the learned Judge, submitted that the suit summons as well as the summons in the execution proceedings were not served upon the respondents and it was proceeded against the deceased defendants 1 to 4. He further submitted that the signature of the respondents were fraudulently entrusted in the notice, with the help of bailiff and in this regard, the High Court has also conducted enquiry. He also submitted that, the decree was obtained against the dead persons and hence, considering all the above facts, the learned Judge has passed the reasoning order and hence, it does not warrant any interference by this court.
5. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
6. Admittedly, the petitioner herein has filed the above said suit in O.S.No.47/2015 against the defendants 1 to 7 for specific performance, stating that the first defendant, being the power of attorney of the defendants 2 to 7, who are his sisters and brothers, had entered into a sale agreement with the petitioner/plaintiff on behalf of himself as well as the other defendants; and thereafter, they have not executed the sale deed, as per the sale agreement. In the above said suit, exparte decree was passed on 17.12.2015 and subsequently, execution petition was filed by the petitioner, wherein, sale deed dated 23.08.2017 was executed through the court in favour of the petitioner, since the defendants in the suit were set exparte in the execution proceedings also.
7. In such circumstances, the fifth defendant has filed the above the said I.A.No.1/2022 to condone the delay of 1416 days in filing the petition to set aside the exparte decree passed on17.12.2015, in which, the petitioner/plaintiff is first respondent; the defendants 1 to 4 are respondents 2 to 5; and the defendants 6 and 7 are the respondents 6 and 7 ; and the respondents 8 to 13 are the legal heirs of the deceased defendants 2 to 4. In the above petition, the petitioner/fifth defendant contended that that on the date of filing the suit, the defendants 1, 2 and 4 were not alive and during the pendency of the suit, the third defendant also died. However, the plaintiff, suppressing the above facts h
