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Judgment
The present second appeal has been preferred against a judgment of affirmance. Both the Courts below dismissed the suit filed by the plaintiffs/appellants for declaration that the judgment and decree passed in an earlier suit between the parties was a nullity. By the earlier judgment and decree, a gift deed executed in favour of appellant no. 1 and a sale deed executed in favour of appellant no. 2 were set aside on the ground of fraud.
Learned counsel for the appellants argues that the plaintiff in the earlier suit had died during the pendency of the same and the suit had abated. Although subsequently, a substitution application was allowed in the said suit, without any specific prayer or order for setting aside abatement on condonation of delay, such substitution order was a nullity in the eye of law.
Secondly, it is argued that both the Courts below erroneously observed that the remedy of the appellants lay only in a challenge against the earlier decree either under Order IX Rule 13 of the Code of Civil Procedure or by way of an appeal.
However, we find that both the Courts below have come to a concurrent finding as to the allegation of fraud having not been substantiated. Insofar as the alleged non-service of summons on the appellants in the earlier suit is concerned, apart from the Courts below having come to a concurrent finding of fact on such count, the tenor of the judgments of both the Courts below was justified in law inasmuch as the observation of the Trial Court in the earlier suit as to summons having been duly served has a presumption of correctness unless rebutted.
Also, the remedy of the appellants, as correctly held by both the Courts below, lay in a challenge against the earlier decree, either by way an application under Order IX Rule 13 of the Code or by way of an appeal against the same. In the absence of any such challenge having been preferred, the earlier decree would operate as res judicata against the appellants, particularly in view of the allegation of fraud having not been proved.
Insofar as the argument on abatement is concerned, we are unable to agree with learned counsel for the appellants, since an order of substitution implicitly includes setting aside of abatement on condonation of delay, without which there could not have been any substitution.
In the event the appellants were aggrieved by such order allowing substitution application in the earlier suit, it was open to the appellants to challenge the validity of the said order in an appeal preferred against the final decree in the said suit. Having not done so, the appellants are precluded from challenging the earlier decree on the ground of abatement.
Hence, we do not find any illegality, let alone any substantial question of law, involved in the appeal.
Accordingly, SAT 122 of 2026 is dismissed under Order XLI Rule 11 of the Code of Civil Procedure.
Consequentially, CAN 1 of 2026 stands dismissed as well.
No order as to costs.
Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.