# Pati Rakhan & Anr v. Smt. Chandrani Devi

- **Citation:** (2021) 2 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-03
- **Case number:** Second Appeal No. 144 of 2017
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pati-rakhan-anr-v-smt-chandrani-devi-46845
- **Pages:** 15

## Headnote

A. Civil Law - Limitation Act, 1963 -
Sections 5, 11, 17 - Limitation Act, 1963
- Article 123 - Limitation - Condonation
of delay

The appellants had filed a highly time barred
appeal on 22.1.2014 against the judgment
and decree dated 18.7.1987 on the ground
that the decree was obtained by playing fraud
by not impleading the appellants, therefore,
they had no knowledge of the judgment and
decree. On coming to know about the same
on 26.12.2013, when it was filed by the
respondent in an appeal u/s 11(2) of the U.P.
Consolidation of Holdings Act, the appeal was
filed therefore it was within time from the
date of knowledge. The learned appellate
Court has not considered the plea of fraud
raised by the appellants and the application
for condonation of delay in filing the appeal
has been rejected merely on the ground that
after passing of the judgment and decree
many cases were contested in various Courts
and revenue Court between the parties, but
has not considered that the appellants were
not party in the said suit and also whether the
said judgment and decree was brought before
the
Court
in
any
proceeding
by
the
respondent prior to 26.12.2013. (Para 12)

Limitation Act, 1963 -Section 17 and
Article 123 of the Period of limitation
will start to run from the date of
knowledge of contents of ex parte
decree and not from the date of mere
knowledge of ex parte decree. In case of
fraud, limitation starts from the date
when the fraud is discovered for the first
time
by
the
aggrieved
person.
On
discovery of fraud, suppression or omission of
fact, the authority is suo moto competent to
reopen the proceedings and the period of
limitation would start running from the date
of such discovery. (Para 15, 16, 17, 20, 24)

In case the decree has been obtained by
playing fraud the limitation would start from
the date of discovery of the fraud. It is
obvious also because unless a party comes to
know about the fraud played by the other
party he would not have any cause of action
to challenge the same. Similarly in the case of
ex parte decree unless the concerned party
comes to know about the ex-party proceeding
and decree passed against him he cannot
challenge the same. When a person has not
been impleaded in any proceeding it is not
expected that he would be knowing about the
proceedings unless it is specifically shown by
the other party as to how it was in the
knowledge of the person who is challenging
and when it was known to him. (Para 26)

In the present case Lower Appellate Court,
without
ascertaining
as
to
whether
the
appellants had any knowledge about the
passing of the decree before 26.12.2013, has
rejected the application while there was no
specific denial by the other side except that
many cases were contested between the parties
in regard to the property in question. It has
never been disclosed as to whether the
impugned judgment and decree was ever
brought before the appellants in any such
proceedings before 26.12.2013. (Para 27)

B. Limitation Act, 1963 - Section 5 -
Unless want of bona fides of such inaction
or negligence as would deprive a party of
the protection of S. 5 is proved, the
922 INDIAN LAW REPORTS ALLAHABAD SERIES
application must not be thrown out or any
delay cannot be refused to be condoned.
(Para 30, 31)

While
considering
the
application
for
condonation of delay the Court has to see
carefully
the
explanation
given
by
the
aggrieved person and also the objection and
if there is some substance in the explanation
the delay may be condoned. The period is not
very material because sometimes the delay of
a very short period may not be condonable,
but sometimes the long delay may be
condonable if the explanation seems to be
justified and sometimes looking to the merit
of the case also the delay may be condoned
so that the injustice may not be done to a
party. (Para 35)

The expression 'sufficient cause' in S. 5
must receive a liberal construction so as
to advance substantial justice. If there

## Text

_Characters 0–39,570 of 51,169. This is a partial read: ask again with offset=39570 for what follows._

2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
921
Rules of the Court after retaining the photo
copy thereof on record.
----------
(2021)02ILR A921
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 144 of 2017

Pati Rakhan & Anr. ...Appellants
Versus
Smt. Chandrani Devi ...Respondent

Counsel for the Appellants:
Virendra Mishra

Counsel for the Respondent:
Paltoo Ram Gupta

A. Civil Law - Limitation Act, 1963 -
Sections 5, 11, 17 - Limitation Act, 1963
- Article 123 - Limitation - Condonation
of delay

The appellants had filed a highly time barred
appeal on 22.1.2014 against the judgment
and decree dated 18.7.1987 on the ground
that the decree was obtained by playing fraud
by not impleading the appellants, therefore,
they had no knowledge of the judgment and
decree. On coming to know about the same
on 26.12.2013, when it was filed by the
respondent in an appeal u/s 11(2) of the U.P.
Consolidation of Holdings Act, the appeal was
filed therefore it was within time from the
date of knowledge. The learned appellate
Court has not considered the plea of fraud
raised by the appellants and the application
for condonation of delay in filing the appeal
has been rejected merely on the ground that
after passing of the judgment and decree
many cases were contested in various Courts
and revenue Court between the parties, but
has not considered that the appellants were
not party in the said suit and also whether the
said judgment and decree was brought before
the
Court
in
any
proceeding
by
the
respondent prior to 26.12.2013. (Para 12)

Limitation Act, 1963 -Section 17 and
Article 123 of the Period of limitation
will start to run from the date of
knowledge of contents of ex parte
decree and not from the date of mere
knowledge of ex parte decree. In case of
fraud, limitation starts from the date
when the fraud is discovered for the first
time
by
the
aggrieved
person.
On
discovery of fraud, suppression or omission of
fact, the authority is suo moto competent to
reopen the proceedings and the period of
limitation would start running from the date
of such discovery. (Para 15, 16, 17, 20, 24)

In case the decree has been obtained by
playing fraud the limitation would start from
the date of discovery of the fraud. It is
obvious also because unless a party comes to
know about the fraud played by the other
party he would not have any cause of action
to challenge the same. Similarly in the case of
ex parte decree unless the concerned party
comes to know about the ex-party proceeding
and decree passed against him he cannot
challenge the same. When a person has not
been impleaded in any proceeding it is not
expected that he would be knowing about the
proceedings unless it is specifically shown by
the other party as to how it was in the
knowledge of the person who is challenging
and when it was known to him. (Para 26)

In the present case Lower Appellate Court,
without
ascertaining
as
to
whether
the
appellants had any knowledge about the
passing of the decree before 26.12.2013, has
rejected the application while there was no
specific denial by the other side except that
many cases were contested between the parties
in regard to the property in question. It has
never been disclosed as to whether the
impugned judgment and decree was ever
brought before the appellants in any such
proceedings before 26.12.2013. (Para 27)

B. Limitation Act, 1963 - Section 5 -
Unless want of bona fides of such inaction
or negligence as would deprive a party of
the protection of S. 5 is proved, the
922 INDIAN LAW REPORTS ALLAHABAD SERIES
application must not be thrown out or any
delay cannot be refused to be condoned.
(Para 30, 31)

While
considering
the
application
for
condonation of delay the Court has to see
carefully
the
explanation
given
by
the
aggrieved person and also the objection and
if there is some substance in the explanation
the delay may be condoned. The period is not
very material because sometimes the delay of
a very short period may not be condonable,
but sometimes the long delay may be
condonable if the explanation seems to be
justified and sometimes looking to the merit
of the case also the delay may be condoned
so that the injustice may not be done to a
party. (Para 35)

The expression 'sufficient cause' in S. 5
must receive a liberal construction so as
to advance substantial justice. If there is
negligence, deliberate or gross inaction or
lack of bona fides on the part of the party or
its counsel there is no reason why the
opposite side should be exposed to a timebarred appeal. However, each case will have
to be considered on the particularities of its
own special facts. (Para 37)

Second appeal partly allowed. (E-3)

Precedent followed:

1.
Gauhati
University
Vs
Niharlal
Bhattacharjee, (1995) 6 SCC 731 (Para 7, 15)

2.. Yashoda Devi & ors. Vs Special/A.D.J.,
Pratapgarh & ors., 2008 (26) LCD 1 (Para 7,
16)

3. Ram Autar & ors. Vs Board of Revenue,
Alld. & ors., 2016 (34) LCD 2724 (Para 7, 17)

4. Jeet Narain & anr. Vs Govind Prasad & ors.,
2010 (110) RD 374 (Para 7, 18)

5. Suresh Giri & ors. Vs Board of Revenue,
U.P. at Allahabad through its Registrar & ors.,
2010 (109) RD 566 (Para 7, 19)

6. Gama Vs Board of Revenue U.P., Allahabad
& ors., 2015 (126) RD 334 (Para 7, 20)
7. Dahari Lal & ors. Vs Deputy Director of
Consolidation & ors., 2010 (110) RD 736 (Para
7, 21)

8. Rikhdev & anr.Vs A.D.M. (F), Azamgarh &
ors., 2011 (114) 631 (Para 7, 22)

9. S.P. Chengalvaraya Naidu (dead) by LRs. Vs
Jagannath (dead) by LRs & ors., (1994) 1 SCC 1
(Para 7, 23)

10. St. of Mah. & anr.Vs Rattan Lal, 1993 All.
C.J. 1077 (Supreme Court) (Para 7, 24)

11. United India Insurance Company Ltd. Vs
Rajendra Singh & ors., 2000(18) LCD 586 (SC)
(Para 7, 25)

12. Manoj Kumar Vs Commissioner, Lucknow
Division, Lucknow & anr., 2017 (35) LCD 1778
(Para 7, 32)

13. Dodram Vs Collector, Pilibhit & ors., 2014
(125) RD 333 (Para 7, 33)

14. Ram Niwas Singh & ors. Vs Deputy Director
of Consolidation, Gorakhpur & ors., 2016 (5)
ADJ 710 (Para 7, 33)

15. Executive Officer, Antiyur Town Panchayat
Vs G. Arumugam (D) by LRs, 2015 (128) RD 80
(Para 7, 34)

16.
N.
Balakrishnan,
Appellant
Vs
M.
Krisnamurthy, Respondent, AIR 1998 Supreme
Court 3222 (Para 7, 36)

17. G. Ramegowda, Major & ors. Vs Special
Land Acquisition Officer, Bangalore, (1988) 2
SCC 142 (Para 9, 37)

18. Shakuntala Devi Jain Vs Kuntal Kumari; AIR
1969 SC 575 (Para 31)

Precedent distinguished:

1. In the matter of: Begum Shanti Tufail Ahmad
Khan, 2005 (Suppl.) RD 214 (Para 9, 38)

Present
second
appeal
is
against
judgment and decree dated 07.12.2016,
passed
by
Additional
District
Judge,
Sitapur, by means of which the application
2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
923
of Condonation of delay in filing appeal
has
been
rejected
upholding
the
judgement and decree dated 18.07.1987,
passed by the Additional District Judge,
Sitapur.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Virendra Mishra,
learned counsel for the appellants and Shri
Paltoo Ram Gupta, learned counsel for the
respondents.

2. The instant Second Appeal has
been filed against the judgment and decree
dated 07.12.2016 passed by the Additional
District Judge, Court no.9, Sitapur in Misc.
Civil Case No.08 of 2014; Pati Rakhan
Versus Smt. Chandrani by means of which
the application for condonation of delay in
filing appeal has been rejected and the
judgment and decree dated 18.07.1987
passed by the learned Additional Civil
Judge,
Sitapur
in
R.S.No.40
of
1983;Smt.Chandrani Devi Versus Raj Rani
and others.

3. The brief facts of the case for
adjudication of the present Second Appeal,
as borne out from the pleadings, are that
one Brij Mohan had only two daughters,
namely, Raj Rani wife of Anirudh Prasad
and Ram Lali wife of Swami Dayal @
Dhondhey. Both the daughters had half
share each in the property of Brij Mohan
after his death. The respondent has claimed
half of the property on the basis of sale
deed executed on 18.04.1978 by Raj Rani.
Rajeshwari @ Raj Rani had filed a suit for
cancellation of the said sale deed vide
R.S.No.229 of 1978. The Suit was decreed
ex parte on 26.03.1980. The respondent had
filed an application under Order 9 Rule 13
of the Civil Procedure Code, which was
rejected on 02.12.1981. Thereafter the
Misc. Appeal filed by the respondent was
also
dismissed
on
20.01.1983.
Consequently the respondent had filed
Regular Suit No.40 of 1983 for cancellation
of ex-parte decree dated 26.03.1980 and
permanent injunction. The injunction was
sought for whole of the property of late Brij
Mohan on the ground that one of his
daughter Raj Rani had executed a sale deed
of the half portion and in regard to the
remaining half portion the second daughter
Ram Lali had executed a Will deed in
favour of the respondent. The suit was
decreed by means of judgment and decree
dated 18.07.1987. The appellants filed a
First Appeal on 22.01.2014 alongwith an
application for condonation of delay vide
Misc. Case No.8 of 2014 as injunction of
the whole property was sought and granted
on the ground that the injunction of
property of Ram Lali has been obtained
fraudulently
without
impleading
the
appellants and no Will was executed by late
Ram Lali. After inviting objections and
hearing the application for condonation of
delay has been rejected. Consequently the
appeal stands dismissed. Hence the instant
Second Appeal has been filed.

4. This second appeal was admitted
on the following substantial questions of
law:-

(i)
Whether
the
impugned
judgment and decree passed by the learned
First
Appellate
Court
ignoring
the
provisions made in Section 17 and Article
123 of the Limitation Act can be allowed to
sustain?

(ii)
Whether
in
absence
of
specific and clear denial on the part of
respondent against the categorical pleading
that the appellants for the first time came to
know about the judgment and decree dated
18.07.1987 on 26.12.2013 the learned first
appellate court has not committed grave
924 INDIAN LAW REPORTS ALLAHABAD SERIES
error in rejecting the application for
condonation of delay and closing the door
of appellant for all times to come?

(iii) Whether the learned First
Appellate Court has not committed serious
illegality while passing the impugned order
ignoring the law laid down by the Hon'ble
Apex Court to the effect that a judgment
and decree obtained by fraud is nullify and
its invalidity can be set up at any stage even
in collateral proceedings and before any
Court whether inferior or superior?

5. Submission of learned counsel for
the appellants was that the appellants, who
are the sons of Ram Lali wife of Swami
Dayal @ Dhondhey, were not impleaded in
the Regular Suit No.40 of 1983 filed by the
respondents despite the fact that injunction
in regard to the property of Ram Lali was
also sought. Therefore, the appellants could
not know about the proceedings and
judgment and order passed by the trial
court. The appellants came to know about
the judgment and decree dated 18.07.1987
when a copy of the same was filed by the
respondent on 26.12.2013 in an appeal filed
by the respondent Chandrani Versus Pati
Rakhan and others under Section 11(2) of
the U.P. Consolidation of Holdings Act
1953
before
the
Settlement
Officer
Consolidation, Sitapur. After coming to
know about the order, the appellants
applied for the certified copy of the order
dated 18.07.1987 on 03.01.2014 and
obtained the same. Thereafter applied for
copies
of
all
other
documents
on
09.01.2014 and 13.01.2014 to file the
appeal and after receipt of the same the
appeal was got prepared from 17.01.2014
to 19.01.2014 and thereafter filed the same
on 22.01.2014 with an application for
condonation
of
delay.
But
without
considering the grounds raised by the
appellants and that the Regular Suit was
filed and the judgment and decree dated
18.07.1987 was obtained by playing fraud
without impleading the appellants, who are
legal heirs of Ram Lali the application for
condonation of delay has been rejected
merely on the ground that after passing of
the judgment and decree dated 18.07.1087
in Regular Suit No.40 of 1983 many cases,
relating to it, were contested by the parties
of the said suit in various courts and
revenue courts. While the appellants were
admittedly not a party in the said suit. It
was also submitted that the respondent
herself had got filed an application for
impleadment by some one impersonating as
their mother Ram Lali, which was rejected,
therefore, the appellants had no knowledge
of it also.

6. He further submitted that in view of
Section 17 read with Article 123 of the
Limitation Act 1963, limitation to set-aside
ex-parte decree and the decree obtained by
fraud will start from the date of the
knowledge and discovery of the fraud, but
it has not been considered by the appellate
court.
He
also
submitted
that
the
respondent, while filing the suit for setting
aside the decree, had not disclosed the
earlier proceedings of application under
Order 9 Rule 13 of the CPC and the appeal
filed by the respondent in regard to the
judgment and decree in question. He also
submitted that it is settled proposition of
law that the judgment and decree obtained
by fraud is nullity in the eyes of law and it
can be challenged at any time and its
invalidity can be set up at any time even in
collateral proceedings.

7. On the basis of above learned
counsel for the appellants submitted that
the judgment and order passed by the
appellate court is liable to be set aside and
the appeal is liable to be allowed. Learned
2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
925
counsel for the petitioner has relied on
Gauhati
University
Versus
Niharlal
Bhattacharjee;
(1995)
6
SCC
731,
Yashoda
Devi
and
others
Versus
Special/Additional
District
Judge,
Paratapgarh and others; 2008 (26) LCD
1, Ram Autar and others Versus Board
of Revenue, Allahabad and others; 2016
(34) LCD 2724, Jeet Narain and another
Versus Govind Prasad and others; 2010
(110) RD 374, Suresh Giri and others
versus Board of Revenue, U.P. at
Allahabad through its Registrar and
others; 2010 (109) RD 566, Gama versus
Board of Revenue U.P, Allahabad and
others; 2015 (126) RD 334, Dahari Lal
and others Versus Deputy Director of
Consolidation and others; 2010 (110) RD
736,
Rikhdev
and
another
Versus
A.D.M.(F), Azamgarh and others; 2011
(114) RD 631, S.P.Chengalvaraya Naidu
(dead) by LRs. Versus Jagannath (dead)
by LRs and others; (1994) 1 SCC 1, State
of Maharashtra and another Versus
Rattan Lal; 1993 All.C.J.1077 (SC),
United India Insurance Company Ltd.
Versus Rajendra Singh and others;
2000(18) LCD 586 (SC), Manoj Kumar
Versus Commissioner, Luckow Division,
Lucknow and another; 2017 (35) LCD
1778, Dodram Versus Collector, Pilibhit
and others; 2014 (125) RD 333, Ram
Niwas Singh and others Versus Deputy
Director of Consolidation, Gorakhpur
and others; 2016 (5) ADJ 710, Executive
Officer, Antiyur Town Panchayat Versus
G.Arumugam (D) by LRs; 2015 (128)
RD 80 and N.Balakrishnan, Appellant
Versus M.Krisnamurthy, Respondent;
AIR 1998 Supreme Court 3222.

8. Per contra, learned counsel for the
respondent does not dispute that Brij
Mohan had two daughters, namely Raj
Rani and Ram Lali. But he submitted that
Raj Rani had executed a sale deed of her
half portion in favour of the respondent and
Ram Lali had executed a Will deed of her
half portion in favour of respondent. He
further submitted that since Ram Lali had
already died, which was mentioned in the
plaint, therefore, there was no occasion to
implead her or her legal heirs. He further
submitted that though the marriage of Ram
Lali was settled but the groom had died on
the date of marriage so she had not married
and she died unmarried. The appellants
were the sons of Kokila who was
impleaded and not of Ram Lali. Kokila had
also filed an application for impleadment
by impersonating her as Ram Lali in
R.S.No.40 of 1983, but her application was
dismissed in default on 07.03.1984 as she
did not appear to give evidence. Kokila, the
mother of the appellants was impleaded as
Kokila was the wife of Dhondhey and the
appellants are the sons of Dhondhey, which
is apparent from the entries made in the
electoral roll of 1975, a copy of which has
been filed alongwith the objection. He
further submitted that the name of the
respondent was mutated in place of Smt.
Raj Rani and Ram Lali on 14.03.1981.

9. On the basis of above, learned
counsel for the respondent had submitted
that no fraud was played by the respondent
by not impleading the appellants and in fact
the fraud has been played by the appellants;
firstly by trying to get Ram Lali impleaded
in the suit by impersonation and secondly
by filing highly time barred appeal showing
them as the sons of Ram Lali while she had
died unmarried on 05.07.1978. He had also
submitted that the appellants had also filed
an application for mutation and they were
granted time to produce evidence but they
did not appear so the same was rejected.
Therefore, the application for condonation
of delay has rightly been rejected by the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned
court
and
this
appeal
is
misconceived and is devoid of any merit
and is liable to be dismissed. Learned
counsel for the respondents has relied on
G. Ramegowda, Major and others
Versus Special Land Acquisition Officer,
Bangalore; (1988) 2 SCC 142 and In the
matter of: Begum Shanti

Tufail
Ahmad
Khan;
2005
(Suppl.) RD 214.

10. I have considered the submissions
of learned counsels of the parties and
perused the records.

11. The undisputed facts are that one
Brij Mohan had two daughters, namely Raj
Rani and Ram Lali and after his death both
had half share each in the said property. Raj
Rani had executed a sale deed in favour of
the respondent, which was set aside by
means of the exparte judgment and decree
dated 26.03.1980 passed in Regular Suit
No.229 of 1978;Smt.Rajeshwari Versus
Smt.Chandrani Devi. Hence after dismissal
of the application under Order 9 Rule 13 of
CPC and the appeal, Regular Suit No.40 of
1983 was filed for setting aside the
judgment and decree dated 26.03.1980 and
for permanent injunction in regard to whole
of the property of Raj Rani and Ram Lali.
Ram Lali or her heirs were not impleaded
in the said suit and it was mentioned that
Ram Lali had died on 05.07.1978. Claim
for injunction in regard to the property of
Ram Lali was set up on the basis of the
alleged Will executed by her. The suit was
decreed by means of the judgment and
decree dated 18.07.1987. This second
appeal is in regard to the property of Ram
Lali only.

12. The appellants had filed a highly
time barred appeal on 22.01.2014 against
the judgment and decree dated 18.07.1987
on the ground that the decree was obtained
by playing fraud by not impleading the
appellants, who are the legal heirs of Ram
Lali, therefore, they had no knowledge of
the judgment and decree. On coming to
know about the same on 26.12.2013, when
it was filed by the respondent in an appeal
under
Section
11(2)
of
the
U.P.
Consolidation of Holdings Act, the appeal
was filed therefore it was within time from
the date of knowledge. The learned
appellate court has not considered the plea
of fraud raised by the appellants and the
application for condonation of delay in
filing the appeal has been rejected merely
on the ground that after passing of the
judgment and decree many cases were
contested in various courts and revenue
court between the parties of Regular Suit
No.40 of 1983, but has not considered that
the appellants were not party in the said
suit and also whether the said judgment and
decree was brought before the court in any
proceeding by the respondent prior to
26.12.2013.

13. Section 17 of the Indian
Limitation Act provides the effect of fraud
or mistake, which is reproduced below:-

"17.
Effect
of
fraud
or
mistake.--(1) Where, in the case of any suit
or application for which a period of
limitation is prescribed by this Act,--

(a) the suit or application is based
upon the fraud of the defendant or
respondent or his agent; or

(b) the knowledge of the right or
title on which a suit or application is
founded is concealed by the fraud of any
such person as aforesaid; or

(c) the suit or application is for
relief from the consequences of a mistake;
or
2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
927

(d)
where
any
document
necessary to establish the right of the
plaintiff or applicant has been fraudulently
concealed from him;

the period of limitation shall not
begin to run until the plaintiff or applicant has
discovered the fraud or the mistake or could,
with reasonable diligence, have discovered it;
or in the case of a concealed document, until
the plaintiff or the applicant first had the
means of producing the concealed document
or compelling its production:

Provided that nothing in this
section shall enable any suit to be instituted
or application to be made to recover or
enforce any charge against, or set aside any
transaction affecting, any property which--

(i) in the case of fraud, has been
purchased for valuable consideration by a
person who was not a party to the fraud and
did not at the time of the purchase know, or
have reason to believe, that any fraud had
been committed, or

(ii) in the case of mistake, has been
purchased
for
valuable
consideration
subsequently to the transaction in which the
mistake was made, by a person who did not
know, or have reason to believe, that the
mistake had been made, or

(iii) in the case of a concealed
document, has been purchased for valuable
consideration by a person who was not a
party to the concealment and, did not at the
time of purchase know, or have reason to
believe, that the document had been
concealed.

(2) Where a judgment-debtor has,
by fraud or force, prevented the execution
of a decree or order within the period of
limitation, the court may, on the application
of the judgment-creditor made after the
expiry of the said period extend the period
for execution of the decree or order:

Provided that such application is
made within one year from the date of the
discovery of the fraud or the cessation of
force, as the case may be."

In view of aforesaid Section the
period of limitation shall not begin to run
until the fraud is discovered by the person
who is aggrieved.

14. Article 123 of the Limitation Act
provides the limitation in the case where
the summons or notice was not duly served,
which is 30 days from the date of
knowledge of the ex-parte decree. Article
123 is reproduced below:-

123. To set aside
a
decree
passed
ex
parte or to
rehear
an
appeal
decreed or
heard
ex
parte.
Explanatio
n.- For the
purpose of
this article,
substituted
service
under Rule
20 of Order
V of the
Code
of
Civil
Procedure,
1908 shall
not
be
deemed to
be
due
service.
Thirty
days.
The
date
of
the
decree
or
where the
summons
or
notice
was
not
duly
served,
when
the
applicant
had
knowledge
of
the
decree.

15.
 The
Hon'ble
Apex Court
considered the Article 123 in the case of
Gauhati
University
Versus
Niharlal
928 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhattacharjee (Supra) and held that the
limitation begins to run only when the
appellant had knowledge of ex parte
decree.

16. This court, in the case of Yashoda
Devi and others Versus Special/Additional
District Judge, Pratapgarh and others
(Supra), has held that the period of limitation
will start to run from the date of knowledge
of contents of exparte decree and not from
the date of mere knowledge of exparte
decree.

17. This court, in the case of Ramautar
and others Versus Board of Revenue,
Allahabad and others (Supra), after
considering the effect of Article 123 of the
Limitation Act held that limitation of 90 days
has been provided from the date of the decree
where summons or notice was duly served
and when summons or notice was not duly
served then 90 days from the date of
knowledge of exparte decree and held that the
application under Order 9 Rule 13 CPC filed
on 01.08.2013 for setting aside the order
dated 31.01.1981 was within time from the
date of knowledge of the decree and ignored
the delay of 30-32 years.

18. The Hon'ble Apex Court, in the case
of Jeet Narain and another Versus Govind
Prasad and others (Supra), held that it is
now well settled that fraud unravels
everything and observed that the courts
below have rejected the claim of the appellant
therein only on the ground of limitation and
they have not considered the dispute on
merit. Therefore while considering the
application for condonation of delay the merit
of the case is also liable to be seen.

19. This Court, in the case of Suresh
Giri and others Versus Board of
Revenue, U.P. at Allahabad through its
Registrar and others (Supra), has held
that the fraud vitiates every solemn act and
an act of fraud is always to be viewed
seriously. The relevant paragraph 19 is
extracted below:-

"19. It is well known that fraud
vitiates every solemn act and an act of
fraud is always to be viewed seriously. The
observation of Lord Justice Denning in
Lazarus Estates Ltd. Vs. Beasley (1956) 1
All E.R. 341 which is quoted below works
as a lighthouse even today for those
dispensing justice. "No court in this land
will allow a person to keep an advantage
which he has obtained by fraud. No
judgment of a court, no order of a Minister,
can be allowed to stand, if it has been
obtained
by
fraud.
Fraud
unravels
everything." In view of the above, there is
no room to doubt that an order of allotment
of land, if obtained by collusion or fraud
cannot be allowed to stand and the court
would not intervene in such matters so as to
permit squandering of the property of the
State which vests in the Gaon Sabha.
Protection of the State property from such
fraud by initiation of action for cancellation
of allotment/lease would however, be
independent of the power of cancellation of
such allotment envisaged under Section
198(4) of the Act for the reason that
Section 198(4) comes into play in the
limited sphere where the allotment is found
to
be
irregular
and
not
otherwise.
Accordingly, in my considered opinion
cancellation of allotment/lease on account
of fraud is altogether an separate exercise
which can be undertaken by the authorities
concerned irrespective of Section 198(4) of
the
Act.
However,
proceedings
for
cancellation of allotment of land/lease on
the ground of fraud has to be exercised
with great care & caution and not blindly or
on unilateral version. It is only when the
2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
929
concerned authority on the basis of relevant
material has a reason to believe that the
allotment is based upon fraud it may
proceed in the matter. In so determining the
stand, a distinction has to be made between
fraud played by the beneficiary or the fraud
committed by the officers or the authorities.
Where the authority is of the opinion that
the allottee is responsible for the alleged
fraud it can initiate proceedings for
cancellation of the allotment/lease and after
giving opportunity of hearing to him may
cancel the same. In the event the authority
feels otherwise and the involvement of the
allottee is not found and the needle of
suspension is upon some employee/officer
action it must take appropriate action first
against
such
employee/officer
and
simultaneously if considered proper for
cancellation of allotment/lease."

20. This court, in the case of Gama
Versus
Board
of
Revenue
U.P.
Allahabad and others (Supra), has held
that in case of fraud limitation starts from
the date when the fraud is discovered for
the first time by the aggrieved person under
Section 17 of the Limitation Act. The
relevant paragraph 8 is extracted below:-

"8. So far as the issue relating to
limitation is concerned, in case of fraud
limitation starts from the date when the
fraud is discovered for the first time by the
aggrieved person under section 17 of the
Limitation Act as held in Ram Pal Vs. State
of U.P., , Sub-Divisional Officer has
categorically
held
that
order
dated
25.3.1994 was secured by committing
fraud. The order, being without jurisdiction
and
has
passed
ignoring
statutory
provisions, has been rightly recalled."

In view of above in case of plea
of fraud it was required to be considered as
to when the alleged fraud was discovered
by the appellants because the limitation
would start from that date only.

21. This Court, in the case of Dahari
Lal and others Versus Deputy Director
of Consolidation and others (Supra), has
held that where an order is obtained by
playing fraud, embargo of limitation does
not come in the way.

22. This Court, in the case of
Rikhdev and another Versus A.D.M.(F),
Azamgarh and others (Supra), has held
that it is well settled principle of law that
any judgment or order obtained by fraud is
nullity and non est in the eye of law and
can be challenged in any court, at any time,
in appeal, revision, writ or even in
collateral
proceedings.
The
relevant
paragraphs 26, 27 and 39 are extracted
below:-

"26. It is well settled principle of
law that any judgment or order obtained by
fraud, its validity can be challenged in any
proceeding. Before three centuries, Chief
Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts,
ecclesiastical or temporal".

27. It is settled proposition of law
that a judgment, decree or order obtained
by playing fraud on the Court, Tribunal or
Authority is a nullity and non est in the eye
of law. Such a judgment, decree or order by
the first Court or by the final Court has to
be treated as nullity by every Court,
superior or inferior. It can be challenged in
any Court, at any time, in appeal, revision,
writ or even in collateral proceedings.

39. In para-39 of the judgment of
A.V. Papayya Sastry (supra), it has been
laid down that it is established that when an
order was obtained by a successful party by
practising or playing fraud, it is vitiated.
Such order cannot be held legal, valid or in
930 INDIAN LAW REPORTS ALLAHABAD SERIES
consonance with law. It is non-existent and
non est and cannot be allowed to stand.
This is the fundamental principle of law
and
needs
no
further
elaboration.
Therefore, it has been said that a judgment,
decree or order obtained by fraud has to be
treated as nullity, whether by the court of
first instance or by the final court. And it
has to be treated as non est by every Court,
superior or inferior."

23. The Hon'ble Apex Court, in the
case of S.P.Chengalvaraya Naidu (Dead)
By LRs Versus Joganath (Dead) by LRs
and others (Supra), about fraud and the
effect of decree obtained by fraud has held
as under in paragraph 1:-

"1. Fraud avoids all judicial acts,
ecclesiastical or temporal" observed Chief
Justice Edward Coke of England about
three centuries ago. It is the settled
proposition of law that a judgment or
decree obtained by playing fraud on the
court is a nullity and non est in the eyes of
law. Such a judgment/decree by the first
court or by the highest court has to be
treated as a nullity by every court, whether
superior or inferior. It can be challenged in
any court even in collateral proceedings."

24. The Hon'ble Apex Court, in the
case of State of Maharashtra and
another Versus Rattan Lal (Supra), has
held that on discovery of fraud, suppression
or omission of fact, the authority is suo
moto competent to reopen the proceedings
and the period of limitation would start
running from the date of such discovery.

25. The Hon'ble Apex Court, in the
case of United India Insurance Company
Ltd. Versus Rajendra Singh and Others
(Supra), has held that it is unrealistic to
expect the appellant to resist a claim at the
first instance on the basis of fraud because
he had at that stage no knowledge about the
fraud allegedly played by the claimants.
The relevant paragraphs 15 and 16 are
extracted below:-

"15. It is unrealistic to expect the
appellant company to resist a claim at the
first instance on the basis of the fraud
because appellant company had at that
stage no knowledge about the fraud
allegedly played by the claimants. If the
Insurance Company comes to know of any
dubious concoction having been made with
the sinister object of extracting a claim for
compensation, and if by that time the award
was already passed, it would not be
possible for the company to file a statutory
appeal against the award. Not only because
of bar of limitation to file the appeal but the
consideration of the appeal even if the
delay could be condoned, would be limited
to the issues formulated from the pleadings
made till then.

16. Therefore, we have no doubt
that the remedy to move for recalling the
order on the basis of the newly discovered
facts amounting to fraud of high degree,
cannot be foreclosed in such a situation. No
court or tribunal can be regarded as
powerless to recall its own order if it is
convinced that the order was wangled
through fraud or misrepresentation of such
a dimension as would affect the very basis
of the claim."

26. In view of above in case the
decree has been obtained by playing fraud
the limitation would start from the date of
discovery of the fraud. It is obvious also
because unless a party comes to know
about the fraud played by the other party he
would not have any cause of action to
challenge the same. Similarly in the case of
ex-parte decree unless the concerned party
2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
931
comes
to
know
about
the
ex-party
proceeding and decree passed against him
he cannot challenge the same. When a
person has not been imleaded in any
proceeding it is not expected that he would
be knowing about the proceedings unless it
is specifically shown by the other party as
to how it was in the knowledge of the
person who is challenging and when it was
known to him.

27. In the present case Lower
Appellate Court, without ascertaining as to
whether the appellants had any knowledge
about the passing of the decree before
26.12.2013, has rejected the application
while there was no specific denial by the
other side except that many cases were
contested between the parties in regard to
the property in question. It has never been
disclosed as to whether the impugned
jugement and decree was ever brought
before
the
appellants
in
any
such
proceedings before 26.12.2013.

28. A plea was taken by the opposite
party that Ram Lali had executed the
alleged Will. The objection was filed
before the lower appellate court against the
application for condonation of delay with a
plea that Smt. Ram Lali had no issue and
she had died many years ago, but it is not
mentioned that she was unmarried. The
objection was mainly filed on the ground
that the appellants were not party before the
trial court, therefore, they have no right to
file an appeal. It has also been alleged that
in the original suit Smt. Kokila, the
defendant in the suit, had tried to get
impleaded impersonating as Smt. Ram Lali
but the application was dismissed in default
as she did not appear to give evidence
whereas the application was rejected by
means of the order dated 07.03.1984 with a
finding that there is dispute in regard to the
death of Smt. Ram Lali and the defendants
may get her examined as a witness so there
is no justification of her impleadment. In
this view of the matter admittedly the
appellants were not party in the original
suit, therefore, the application could not
have been dismissed merely on the ground
that many cases have been contested
between the parties of Regular Suit No.40
of 1983 in many courts and revenue court.

29. It was mentioned in paragraph 15
of the Suit that the defendant nos.1 and 2
are the real sisters whereas in the suit itself,
a copy of which is available in the lower
court record, it was mentioned in paragraph
3 and 7 that Smt. Rajeshwari and Ram Lali
were real sisters and daughters of late Brij
Mohan. Even then Smt. Raj Rani and Smt.
Rajeshwari were impleaded, as defendant
nos.1 and 2, both showing the wife of late
Anirudh Prasad. Therefore, the submission
of learned counsel for the appellants seems
to be correct that Smt.Raj Rani and
Rajeshwari were one and the same lady and
both the names were of Smt. Raj Rani and
the other sister was Ram Lali. Subsequently
the name of Smt. Rajeshwari was got
deleted also from the suit. It smacks of
some mischief, which is required to be
considered.

30. The application for condonation
of delay in filing appeal cannot be rejected
merely on the ground that there is great
delay because the law of limitation is not
meant to take away the right of appeal and
the length of delay is not very much
material if there is some substance in
ground and on merit also.

31. The Hon'ble Apex Court, in the
case of Shakuntala Devi Jain Versus
Kuntal Kumari; AIR 1969 SC 575, has
held that unless want of bonafides of such
932 INDIAN LAW REPORTS ALLAHABAD SERIES
inaction or negligence as would deprive a
party of the protection of section 5 is
proved, the application must not be thrown
out or any delay cannot be refused to be
condoned.

32. This court, in the case of Manoj
Kumar Versus Commissioner, Lucknow
Division, Lucknow and another (Supra),
after considering several judgments of the
Hon'ble Apex court, has held in paragraph 14
as under:-

"14- In view of the decision of the
Apex Court it is abundantly clear that while
considering
the
delay
condonation
application the court has to see the merit of
the case also as the law of limitation is not
meant to take away the right of Appeal. The
courts are meant for imparting justice and not
to scuttle the justice on technicalities. The
length of delay is also not very much material
if there is a substance on merit."

33. Similar view has been taken by this
court in the case of Dodram Versus
Collector, Pilibhit and others (Supra) and
Ram Newas Singh and others Versus
Deputy
Director
of
Consolidation,
Gorakhpur and others (Supra), relevant
paragraph 7 of which is extracted below:-

"7. Otherwise also the law of
limitation is not meant to take away the right
of appeal. The Hon'ble Apex Court as well as
this Court in number of cases, has held that
while considering the delay condonation
application, the court must be sympathetic
and it has to see the merit of the case also as
the law of limitation is not meant to take
away the right of Appeal. The courts are
meant for imparting justice and not to scuttle
the justice on technicalities. The length of
delay is also not very much material if there
is a substance on merit. It has also been held
that if there has been some slackness on the
part of applicant and that has caused
inconvenience to the other side that can be
compensated in terms of money instead of
closing the door of justice for ever."

34. The Hon'ble Apex Court has also
taken similar view in the case of Executive
Officer, Antiyur Town Panchayat Versus
G.Arumugam
(D)
by
LRs
(Supra).
However the same may not be applicable on
the present case because in that case the
Hon'ble Court has held that in case there is an
attempt on the part of the Government
officials or public servants to defeat justice by
causing delay, the court, in view of the larger
public interest, should take a lenient view and
condone the delay.

35.