Or.1, Rule 10 C.P.C IMPLEADING PETITION NOT MAINTAINABLE AFTER DISPOSAL OF SUIT = The recourse open for the petitioner in such an event is either to file a suit for a declaration of his title together with a declaration that the judgment and decree in O.S.No.137 of 2012 is fraudulent, with consequential relief of setting aside the decree or in the alternative resisting the execution petition by filing a petition under Order XXI Rule 58 C.P.C.

REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9789
THE HON'BLE SRI JUSTICE K.G.SHANKAR      

CIVIL REVISION PETITION No. 1559 OF 2013  

08.04.2013

Guduru Srinivas

Amradi Prabhakar and another

Counsel for the petitioner : Sri K.Govind

Counsel for respondents   : None appeared

<Gist:

>Head Note:

?Cases referred:

1997(5) Supreme 485

ORDER:

        This revision is disposed of at the stage of admission.  The petitioner is
said to be an unfortunate affected party in this case.  The plaintiff in
O.S.No.137 of 2012 on the file of the Senior Civil Judge's Court, Siddipet filed
a suit for declaration of his title over the plaint schedule property therein as
well as for possession.  The revision petitioner contends that while he is the
owner of the property, the plaintiff fraudulently arrayed the defendant as the
person claiming title and has been interfering with his possession.  The
defendant remained ex parte.  Subsequently, the suit was decreed ex parte.  It
would appear that the plaintiff sought to execute the decree.

        Sri K.Govind, learned counsel for the petitioner contended that the
petitioner has come to know at the stage of the execution about the fraud played
by the plaintiff and sought to come on record as defendant No.2.
 He submitted
that the petitioner filed a petition before the trial Court in I.A.No.609 of
2012 under Order I Rule 10 C.P.C. seeking to come on record as defendant No.2.
The trial Court dismissed the application first on the ground that the suit has
already been disposed of and that a petition under Order I Rule 10 C.P.C.
therefore does not lie;
and secondly on the ground that the proper course for
the petitioner would be to file a claim petition under Order XXI Rule 58 C.P.C.
in the execution petition filed by the plaintiff.
The learned counsel for the
petitioner contended that when a party played fraud on the Court, the entire
proceedings stand vitiated and the Court cannot remain a helpless spectator.
 He
placed reliance upon Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd.1.  The
Supreme Court observed that fraud confers an inherent power upon the Court to
recall its judgment or order if the same is obtained by fraud.

        The learned counsel for the petitioner contended that the plaintiff
obtained the ex parte decree fradulently and that the same is liable to be aside
as the same is brought to the notice of the Court.
 I am not able to agree with
the contention for the reason that although fraud vitiates the proceedings,
fraud prima facie should be made out at the outset before the proceedings can be
set aside.  In the present case, the fraud cannot be said to have been
established.
 Further in the given facts and circumstances of the case, fraud is
only a question of fact.  I therefore, cannot accept the contention of the
learned counsel for the petitioner that it is patent that the plaintiff obtained
a fraudulent decree and that the same is therefore liable to be set aside.

        The learned counsel for the petitioner also pointed out that the plaintiff
deliberately overvalued the property and filed the suit before the Senior Civil
Judge's Court, Siddipet so that the attention of the petitioner cannot be drawn
to the proceedings before the Court.  In any view of the matter, where the suit
is not pending and was already disposed of, I am afraid that the petitioner
cannot seek to invoke Order I Rule 10 C.P.C. as the suit itself is not pending.

        The recourse open for the petitioner in such an event is either to file a suit for a declaration of his title together with a declaration that the judgment and decree in O.S.No.137 of 2012 is fraudulent, with consequential relief of setting aside the decree or in the alternative resisting the execution petition by filing a petition under Order XXI Rule 58 C.P.C.

In view of the circumstances, this petition is dismissed.  It is open for the
petitioner to invoke due process of law either in the execution proceedings or
by way of a separate suit.  No costs.
_______________
K.G.SHANKAR, J
Date: 08.04.2013

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