LexSHRI V.J. THOMAS versus SHRI PATHROSE ABRAHAM & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 2 S.C.R. 378
A
SHRI V.J. THOMAS
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II.
SHRI PATHROSE ABRAHAM & ORS.
(Civil Appeal No. 989 of 2008)
8
FEBRUARY 5, 2008
(S.B. SINHA AND HARJIT SINGH BEDI, JJ.)
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Code of Civil Procedure, 1908: Order 1 rr 8 & 10:
Execution of decree -
lmpleadment of defendants/
c respondent nos. 1 and 2 - Allowed by Executing. Court ""."'"
Correctness of - Held:.A decree obtained by suppression of
fact or collusively would not be executable against those who
were not parties to the Suit - Executing Court allowed the
application for impleadment of respondent Nos. 1 & 3 to enable
D them to press their application for setting aside ex-parte decree
upon condonation of delay -
Under the circumstances,
Supreme Court in exercise of discretionary jurisdiction under
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Article-136 of the Constitution found no reason to interfere with
the impugned order - Constitution of India, 1950 - Article 136
E - Discretionary jurisdiction - Exercise of.
Appellant filed a Suit for declaration of his title, for
possession of the suit property and for re$training the
respondents 3 to 5 from interfering with his right to enjoy
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the property by entering upon it or using it as a pathway
as if it was a public pathway. A publication was also made
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in a newspaper purported to be in terms of Order 1 Rule
10 of the Code of Civil Procedure. Since respondent Nos.
3 to 5 did not appear in the suit, an ex-pa rte decree was
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passed by the trial court. Appellant filed application for
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.G execution of the decree. Respondent Nos.1 and 2 filed
applicatjon for setting aside the decree, to implead them
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to contest the suit, to condone the delay in filing
application. I.As were allowed by the Executing Court
impleading respondent Nos.1 & 2 to contest the suit.
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378
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SHRI V.J. THOMAS v. SHRI PATHROSE ABRAHAM
379
& ORS.
Revision application filed by the appellant was dismissed A
by the Single Judge of the High Court. Hence, the present
appeal.
Appellant contended that a suit, wherein notice
under Order I Rule 8 of Code of Civil Procedure has been B
issued; could not have been reopened at the instance of
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the respondent Nos.1 and 2 without allowing their
. application for condonation of delay and for setting aside
the ex parte decree.
Dismissing the appeal, the Court
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HELD: 1.1 A suit filed in terms of Order I Rule 8 of
C.P.C. should ordinarily be premised on the ground that ·
the defendants represent the parties interested in the suit.
. Defendants in such a suit, although must be able to
represent the public in general, but no personal decree D
can be passed against them. To what extent the original
defendants were interested in the suit property at least in
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respect of the portion thereof is not known [Para 13)
[383-D, E]
1.2 A litigant may execute a decree which was E
obtained for the benefit of the people of the locality but if
he intends to execute a decree which was obtained for
his own benefit, those who would be affected thereby
should ordinarily be made parties to the suit. If a_ vntage
.,.
pathway is the subject matter of the suit on the premise F
that it is the personal property of the plaintiff, those who
use the said pathway or at least have lands adjacent
thereto should ordinarily be impleaded as parties. In the
latter case, like the present one, applying the legal
principles, this Court is of the opinion that a decree which G
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has been obtained by suppression of fact or collusively
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would not be executable against those who were not
parties to the suit. [Para 14] [383-F; G; 384-A]
1.3 This Court has no idea as to what was the nature
of interest was claimed by the Original Defendant Nos.1
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380
SUPREME COURT REPORTS
· [2008] 2 S.C.R.
A to 3(Respondent Nos. 3 to 5) in the suit land. In any event,
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whether the service of notice was proper would also be
the subject matter of an enquiry by the trial court. It has
also to be seen as to whether the notice in terms of Order
I Rule 10 of the Code was published in a newspaper
B having a wide circulation in the locality. [Para 16] [384-E,
F, G]
Chairman, Tamil Nadu Housing Board, Madras vs. T.N.
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Ganapathy, (1990) 1 SCC 608 - referred to.
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2. If for the purpose of examination of the question,
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amongst others, the Executing Court has allowed the
applications for impleadment of the respondent Nos.1 and
3 so as to enable them to press their appliExcerpt shown. Read the full judgment & AI analysis in Lexace.