AS/23/1955 of MATHAI OUSEPH Vs VELAYUDHAN PILLAI NARAYANA PILLAI on 13 December 1956

In the High Court of Kerala at Ernakulam 13th December 1956

P r e s e n tThe Hon'ble Sri M.s. Menon,Judge,andThe Hon'ble Sri T. K. Joseph, Judge.

-A. S. No.23 of 1955(TC)

0. S.No.30 o6£ '1124 of Mavelikara District Court.

Appellant - Mathai Ouseph of Manamprathu Puthenveettil,Kutte.speroor uri,Mannar Pakuthy - plaintiff(died)

-legal heirs. 2.Cuseph Mathai of Manamprathu,Puthenveettil, Kuttemperoor Muri, Mannar Pakuthy.

3. Ouseph Abraham of do.

4. Ouseph Mathew of do.

Impleaded as additional appellants Vide order on C.N.P.--1509/55 dated 14856.

By advocate Sri T.K. Kurien

--Respondents l. Velayudhan Pillai Narayana Pillai of Marattethu Padeettathil, Kulanjikarma Muri,Mannar Palruthy - 1st defendant.

• Sankaran Nair,Velayudhan Nair also calledC. V.Velu Pillai, of Chudukattilaya PalakkaVadakkethil, TuttemperoorMuri, Mannan Pakuthy 2nd defendant.

o.1 by advocate Sri A.s. Narayanan Asan.

--Thi appeal coming on for final hearing on 12121956

and having stood over forconsideration till this day the court delivered the following /4,eplutn•U } py••,,"ZovJu)dgm¢ent This is an appeal by the plaintiff in o.s.No.30 of 1124of the DistrictCourt of Navelikara.He died subsequent tothe filing·of the appeal and his heirs have been impleaed asaddil.tional appellants,2 to 4, in pursuance of the order inC.Mi.P.i.1509 of 1955 dated the 14th August 1956.

2. The present suit6, 0.S.4o. 30 0f 1124, is a suit to-set aside the ex parte decree in O.S.No. 45 of 1112 of the District Court of Quilon.The plaintiff had filed a petition toset aside the ex parte decree on the ground of fraud in theservi~e of sununons.That petition,it seems, was dismissed bythetrial court and the dismissal confirmed by the High Court of Travancore in C.M.A.No. 38 0f 1123.

3. Issue No.4 of the seven issues raised is:

Whether the order rejecting the application to setaside exparte decree operates as resjudlcata?".

The lower court quoted the following passage from XXIII T.L.J.132:

'

"If the very fraud that is set up in the suit was set upin the application to set astide the ex parte decree and ' the court after going into the question of fraud rejectedthe application, the suit would be barred as resjudicataunless the fraud was of 'such a nature that it could notproperly come within the scope o-f inquiry U..Yider Order IX,r. 13 of the C.P.C.".

and held that:

"the present suit is clearly barred by the rule of res"judicata.

4. Even the petition filed to set aside the ex parte decree 0was not beforethe court and the Judge wasVery much in the posit- imn of the Privy Council in I.L.R. 28 Calcutta 471 wherein they said:

"We have nothing before us, but the bare fact that theplaintiff endeavoured to get an ex parte decree set asideunder s. 108 0f the Code of Civil Procedure, under whichthe Court may try whether the summons was served or whetherthe plaintiff was prevented by any sufficient cause fromappearing".

No documents have been marked or oral evidence adduced in this case.

5. Definite evidence is certainlyrequired before a conclusioncan be reached as to whetrnr the present suit isbarred by resjudicata or not and we have come to the conclusion that we shouldseta.side the decree and remand the case to the trial court for-fresh disposal according to law after giving the parties an opportunity to adduce all relevant evidence.Judgment accordingly.

6. The costs of the appeal will becosts ir the cause.

-7. The courtfee paid on the meruopndum of appeal will be refunded to the appellants as provided by section 10 (b)(1) of the-TravancoreCochin Court Fees Act, 1125.