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Judgment
J.D. Kapoor, J.—Admittedly applicants are the legal heirs of deceased whose properties are being sought to be portioned by way of instant suit. However, this application has been moved after preliminary decree has been passed on the representation that parties alone are legal heirs of deceased owner knowing it well that applicants are also legal heirs. Concealment of this fact by both the parties has a significant effect over the validity of the preliminary decree as well as its executability.
This application is being resisted vehemently by Mr. Dutt, learned counsel for defendant on the premises that once preliminary decree is passed it cannot be interfered with vis-a-vis rights determined by the said decree and that preliminary decree in so far as it decided the rights and shares of the parties is final unless set aside in appeal and cannot be re-agitated or re-opened by way of application under Order 1 Rule 10 CPC and has placed reliance upon Venkata Reddi and Others Vs. Pothi Reddi, and Mr. N.P. Nair v. A. Pillasi AIR sc 1971 394.
The very fact that both the parties concealed the fact as to how many legal heirs were there shows the rights of the parties were neither effectively nor completely determined by way of preliminary decree and Therefore the question of preliminary decree having acquired finality and is not liable to be reopened does not arise. Any decree obtained either through fraud or by concealment of material fact that if taken into consideration would negate the decree itself cannot be deemed as final or unquestionable. Reliance on the aforesaid judgments is highly misplaced. Every case has to be decided and determined in the perspective and back drop of its own facts. Neither facts of two cases can be akin nor the ratio of an authority as rule of thumb. Such a decree is nothing but collusive in nature. No body can be allowed to usurp the rights of other legal heirs that too in the property by not coming with clean hands in the court. The resistance of the application by the defendant is like pointing an unclean finger.
In view of foregoing reasons, application is allowed. Applicants are imp leaded as defendants. Amended memo of parties be filed within one week.
S.No. 2561/1997
Written statement by filed by newly imp leaded defendants within one week. However, all the parties at this stage pray for modification in preliminary decree.
List on 17th December, 2002.