Telangana High Court
A.China Iylaiah vs A. Aparna Aparna Bujwar on 4 July, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
CIVIL REVISION PETITION No.1151 of 2025
Sri M.Neelanjana Rao, learned counsel appearing for the revision petitioner.
Sri Nadipally Ananda Rao, learned counsel appearing for the respondents.
ORDER:
1. The respondents/plaintiffs are represented.
2. The Court has considered the submissions made on behalf of the
petitioner/defendant and the respondents/plaintiffs in light of the
impugned order dated 27.02.2025. The impugned order was passed on
an application filed by the petitioner/defendant (I.A.No.906 of 2023) in
O.S.No.222 of 1987 for setting aside an ex-parte preliminary decree
dated 07.02.1989. The said application was made under section 151 of
The Code of Civil Procedure, 1908 on the ground of fraud and abuse of
process of law.
3. The undisputed facts as would be reflected from the submissions
made on behalf of the parties are as follows:-
3.1. The respondents filed a Suit for partition in the year
1987. Summons were served in the Suit on the defendant
(petitioner in the C.R.P.) in the year 1987 itself. The petitioner
was set ex-parte in the year 1987 since the petitioner did not
enter appearance to contest the Suit. The Court proceeded to
pass an ex-parte preliminary decree on 07.02.1989.
MB,J
CRP.No.1151_2025
3.2. In 2018, the respondent Nos.1 & 3 (plaintiffs) applied
for a final decree. The Court issued notice to the
petitioner/defendant in applications for appointment of
Commissioner. Since the defendant did not enter appearance
despite service of notice, the defendant was again set ex parte
on 25.02.2021.
3.3. A Commissioner was appointed for execution of the
warrant pursuant to the application filed by the plaintiffs.
The Court is informed that the defendant did not permit the
Commissioner to execute the warrant by which reason a
second Commissioner was appointed by the Court for
execution of warrant. The defendant (petitioner in the C.R.P.)
filed I.A.No.906 of 2023 under section 151 of The Code of Civil
Procedure, 1908 for setting aside of the exparte preliminary
decree dated 07.02.1989. This application was filed just
before the second Commissioner was to file the report before
the Trial Court.
4. It is undisputed that the defendant/petitioner applied for setting
aside of the preliminary decree after 34 years. This application was also
not filed under Order IX Rule 13 of The Code of Civil Procedure, 1908
read with Article 123 of the Schedule to the Limitation Act, 1963 which
provides for a limitation of 30 days from the date of the decree or the
date from which the applicant had knowledge of the decree where the
summons or notice was not duly served on the applicant.
MB,J
CRP.No.1151_2025
5. The petitioner/defendant has not denied service of summons in
his pleadings in the Trial Court. The petitioner would hence fall within
the 30 days limitation under Article 123 which pertains to setting aside
of a decree passed ex-parte.
6. Even otherwise, there is no scope for interference in the
impugned order on the factual front. The petitioner claims to be the
father/natural guardian of the minor children who were the plaintiffs in
the Original Suit and were represented by their next friend and
maternal grandfather in the Suit. The Trial Court passed the
preliminary decree on 07.02.1989 on the prayer for partition and
separation possession of the suit schedule properties through next
friend and maternal grandfather of the minor children. As state above,
the petitioner failed to contest the Suit despite service of summons and
was consequently set ex parte in 1987, i.e., almost two years before the
preliminary decree.
7. The petitioner's only plea before the Trial Court was for setting
aside the ex parte decree on the ground of fraud, that too made after 34
years. The Trial Court records that the petitioner did not mention any
particulars of fraud but made bald allegations of fraud and
misrepresentation. The Trial Court rightly held that section 6 of The
Hindu Minority and Guardianship Act, 1956 would not apply to the
facts of the case since the minor children were represented by their next
friend and maternal grandfather.
MB,J
CRP.No.1151_2025
8. It is also of utmost relevance that the minor children did not
challenge or dispute the preliminary decree after attaining majority.
The Trial Court also found that the petition did not contain any
pleading of the minors' interest being defeated or the next friend having
acted in derogation of the rights and interest of the minor children. The
Trial Court also noted that bare allegation of fraud cannot be accepted
on the fact of it.
9. The impugned order dated 27.02.2025 is a reasoned order. The
finding that the judgment and decree dated 07.02.1989 holds good in
the absence of any challenge by the minor children the ex parte decree
after attaining majority is in accordance with the law on the subject.
The fraud pleaded by the defendant cannot be given any weightage in
the absence of corroborating material brought to the Court by the
defendant.
10. This Court does not find any reason to delve further into the
merits of the case since it is undisputed that the defendant/petitioner
has sought to set aside the ex parte preliminary decree dated
07.02.1989 in the year 2023 i.e., after 34 years. There is no material to
show that the summons in the said Suit were not served on the
petitioner in the first round i.e., in 1987 or that the petitioner did not
receive notices of the application for appointment of the Commissioner
in the second round i.e., in 2021.
MB,J
CRP.No.1151_2025
11. This Court does not find any infirmity in the impugned order for
the reasons stated above.
12. C.R.P.No.1151 of 2025 is accordingly dismissed. All connected
applications shall stand closed. There shall be no order as to costs.
________________________________________
JUSTICE MOUSHUMI BHATTACHARYA
Dt.04.07.2025
Ysk/bms
