To dismiss final decree petition in partition suit

1. As a defendant you are required to file a counter objection to get the same dismissed for the reasons you rely upon.

2. The final decree petition will not go back to the defects found in the preliminary decree, you have an option to file an appeal against the judgement passed in preliminary decree along  with condone delay petition to condone delay in filing the appeal.

If there is no defect or fraud inherent in the preliminary decree, how is that the final decree application is fraudulent?

( 1 ) Since you have not raised any objectio regarding fraud at the time of passing preliminary decree so now you are stopped to raise such objection in final decree. 

( 2 ) Challenge the preliminary decree by way of appeal along with petition for condoning delay.

What type of fraud is being discussed in appointment of local commissioner on an applicationn under order XXVI Rule 9 CPC, who have suggested means of partition of the suit property. 

Fraud is not in the appoinement of Advocate Commissioner.

Fraud is in the preliminary decree. The plaintiff suppressed a few material facts and obtained preliminary decree by fraud. (I am trying to be polite and non-controversial. The truth is even bitter. Bribing and corruption. I hope you get what I am trying to say.) 

Filing an appeal along with an application for condonation of delay is the last option for us. Since delay may or may not be condoned, we are trying to see if there are other options. 

Since the partition suit is still pending and the final decree petition is still pending, we want to get the final decree petition dismissed on grounds that the preliminary decree is obtained by fraud. Because if the preliminary decree is obtained by fraud, then the final decree petition is not maintainable. If the final decree petition is dismissed, then the plaintiff would be forced to get a fresh preliminary decree. He cannot file another final decree petition on the old preliminary decree. That is the plan. 

We are reasonably confident that the preliminary decree was obtained by fraud and that the final decree petition should be dismissed. 

We are not clear about how to get the final decree petition dismissed. Whether we should file IA within IA under the final decree petition in the trial Court itself ---OR--- whether we should approach the High Court through a Civil Revision Petition praying to dismiss the final decree petition. 

We got two different views from others. The first view is : maintainability of any application can be challenged at any stage, so file IA within IA under the final decree petition in the trial Court itself. The second view is: since the final decree petition was already allowed and an Advocate Commissioner was already appointed and since the final decree proceedings are in progress, file a Civil Revision Petition in the High Court praying for dismissal of final decree petition. 

We are unable to decide which of the above two views is correct. So, I posted this query in this esteemed forum to seek your valuable opinion. 

Regards, 

Krishna Kishore

In the given facts, limitation commences from the date of knowledge/discovery of the fraud. You have the option of filing a Review Petition in the Trial Court itself.

File appeal against preliminary decree with condonation of delay without waiting for an order /judgement for final decree.

Dear Experts, 

I am very grateful to all of you for all your quick and useful responses. 

Most probably, we may approach the High Court with an appeal along with an application for condonation of delay as suggested by many of you ---OR--- we may file a Civil Revision Petition to get the final decree petition dismissed. 

Thank you all of you! 

Regards, 

Krishna Kishore

You may proceed observing the proper procedures of law instead of acting under any misguidance, which will save your time, money and energy

What is the opinion and advise of your lawyer ??

In the above responses, many of you advised me to file an appeal along with an application for condonation of delay. We may follow this, though we have not decided yet. 

According to my lawyer, we are late. Three years from the date of knowledge of fraud have been completed and we do not have valid reasons. We were hesitant without taking any necessary steps. He suggests that we should select a remedy which does not require condonation of delay. The final decree petition is still pending. Civil Revision Petition under Article 227 of the Constitution of India has no limitation. If we file a Civil Revision Petition in the High Court and prove that preliminary decree is obtained by fraud, then the final decree petition will not be maintainable. The final decree petition will be dismissed. The plaintiff will be compelled to get a fresh preliminary decree by placing all the material facts on record. We are considering this option also, though we have not decided yet. 

We are looking for previous precedents in this matter to take a proper decision. 

In my opinion your views in this regard may be incorrect.

You may pleae note that a Civil Revision Petition (CRP) under Section 115 of the Code of Civil Procedure (CPC) can be filed to challenge an order, including one related to a final decree petition, but only under specific circumstances.

 It's not a general remedy to dismiss a final decree petition. 

A CRP is typically used to correct errors of jurisdiction or material irregularities in the lower court's decision, not to re-argue the case on its merits. 

Your grievances are in the preliminary decree and not in the final decree.

In a partition suit, a final decree is the judgment that definitively divides the property and puts each party in possession of their respective share, following a preliminary decree that establishes their rights.

Essentially, the preliminary decree determines the rights of the plaintiffs or defendants and if either of the party is aggrieved by the decision, he or she may prefer an appeal against the preliminary decree, in any case he cannot seek for dismissal of final decree petition if the preliminary decree was not challenged in the appeal.

Dear T. Kalaiselvan Sir and others too, 

Thank you very much for your kind reply and your intention to help me with important points of discussion. I am grateful to you. My humble submissions are as follows. 

Civil Revision Petition can be filed in a High Court under Section 115 of the Code of Civil Procedure or it can be filed under Article 227 of the Constitution of India too. I guess when it is filed under Article 227 of the Constitution of India, it has a much wider scope and many more things can be done than when it is filed under Section 115 of CPC. 

Secondly, FRAUD is different from errors or defects. 

A judgment or decree obtained by FRAUD is a nullity and non est in the eyes of law, but an erroneous or defective jusgment is not a nullity and non est in the eyes of law. 

When all the relevant material facts are placed before the trial court and if it still delivers a wrong judgment, then they are called errors or defects, and such a judgment is an erroneous or defective judgment and it is not a nullity and non est in the eyes of law. 

However, if some of the relevant material facts are suppressed and not placed before the trial court, and if the trial court delivers a judgment not knowing those material facts, then it is FRAUD upon the trial court. 

A decree or judgment obtained by suppressing material facts is said to be a decree or judgment OBTAINED BY FRAUD and such a judgment is a nullity and non est in the eyes of law. 

In the case of errors and defects in the judgment or decree as well as in the case of FRAUD, in both the cases, we can file an appeal and get them corrected in the first appellate court. 

However, in the case of FRAUD, we have additional remedies, in addition to the first appeal. Since we are delayed and since we are doubtful whether the delay would be condoned or not, we want to try remedies other than first appeal. 

Arguing that the preliminary decree is erroneous and defective can be done in a first appeal only. I agree that it cannot be done in a final decree petition or while trying to dismiss the final decree petition in a Civil Revision Petition. I agree that we cannot debate the correctness of a preliminary decree in a final decree petition or in any petition (Civil Revision Petition) trying to dismiss the final decree petition. The correctness of preliminary decree or any decree can be debated in a first appeal only. 

However, debating the correctness of any decree is different from saying that it was OBTAINED BY FRAUD. 

I can argue in a final decree peition or CRP and show that the preliminary decree is obtained by FRAUD and that it is a nullity and non est in the eyes of law. If I am able to prove that some of the material facts were suppressed before the trial court and if I am able to prove that the preliminary decree was obtained by FRAUD, and that the preliminary decree is a nullity and non est in the eyes of law, and therefore the final decree petition is not maintainable, then the final decree petition can be dismissed on grounds of maintainability. This cannot be done if the preliminary decree is erroneous or defective and if there is no FRAUD in obtaining it and if all material facts were placed before the trial court. 

Saying that the preliminary decree is obtained by fraud is different from saying that the preliminary decree is defective and erroneous. 

If I say that the judgment or decree are defective or erroneous, it means that the judge did some mistake. But when I say that the judgment or decree is obtained by FRAUD, I am not blaming the judge and I am blaming the plaintiff or any other party for suppression of material facts. 

RELEVANT CITATION OF SUPREME COURT OF INDIA BY JUSTICE KULDIP SINGH AND JUSTICE P B SAWANT

S P CHENGALVARAYA NAIDU VS JAGANNATH ON 27 OCTOBER, 1993

We can search in Google for the above. We can also search in Google for DECREE OBTAINED BY FRAUD. There are many more judgments on the topic of DECREE OBTAINED BY FRAUD. 

The above judgment of Chengalvaraya Naidu versus Jagannath delivered by Justice Kuldip Singh in Supreme Court of India says that the issue of FRAUD can be raised in any proceeding and that the Court is bound to examine the allegation. This is one of the very widely quoted citations. Of course, some people try to misuse it to drag the proceedings. 

My grievance is against the preliminary decree only, but it is not a simple grievance. It is a serious grievance that the plaintiff committed FRAUD upon the court and OBTAINED DECREE BY FRAUD. 

I agree that a first appeal would be an ideal remedy in the case of errors and defects as well as in the case of FRAUD. However, since there is a long delay, we want to try other remedies which do not require condonation of delay. 

We have not decided anything yet. We are still digging and thinking. 

Thank you very much, sir, for your kind reply. 

Regards, 

Krishna Kishore

A civil revision petition is not maintainable if the preliminary decree was passed and the case is pending at final decree.

You can prefer an appeal alone against the judgment, the preliminay decree is also considered as a judgment

Even there is a considrable delay in approaching high court with an appeal, that is the only remedy availabel before you now.

The high court will be convinced if you plead with the   convincing reasons for delay in approaching with the appeal.

Do not take any wrong decision of filing a civil revision petition because that will become fatal to your main case itself.