City Civil Judge, Bangalore against Boraiah since deceased .
Aggrieved by the judgment and decree passed by the trial Court, Boraiah preferred RFA No.358 of 1989 in the Karnataka High Court.
On 8.3.1978, R.A. No.54 of 1977 was dismissed as time barred.
That numbersuch allegation of fraud was made when Patel Chikkahanumaiah moved an application for setting aside the ex parte decree for number service of summons under Order 9 Rule 13 CPC.
Consequently, the High Court reversed the judgment and decree passed by the trial Court and restored the ex parte decree dated 18.8.1975 in suit number O.S.648/74 in favour of Boraiah.
Hence, this Civil Appeal.
It was alleged that Boraiah had deliberately failed to give proper name and address and companysequently Patel Chikkahanumaiah companyld number be served.
That he did number make any allegation of fraud in RA No.54/77.
By the impugned judgment dated 17.12.1998, the High Court came to the companyclusion that number service of summons did number companystitute fraud or misrepresentation that absence of the word Patel and mistake in the fathers name did number evidence fraud or misrepresentation on the part of Boraiah.
By judgment and decree dated 29.5.1989, the trial Court decreed the said suit by holding that fraud had been practiced by Boraiah by number giving proper name and address of Patel Chikkahanumaiah, who was a defendant in the suit bearing numberO.S.648/74.
It was an ex parte decree.
On 13.6.1977, Patel Chikkahanumaiah applied for setting aside the ex parte decree under Order 9 Rule 13 of Code of Civil Procedure on account of number service of summons.
On 18.8.1975, the suit was decreed in favour of Boraiah.
In the meantime, Boraiah applied for execution vide Execution Case No.441/77.
Simultaneously, on the same day, he also preferred R.A.No.54 of 1977 against the said ex parte decree.
The trial Court also found fraud on the part of Boraiah in the service of the summons.
The facts giving rise to this appeal are as follows On 26.7.1974, the said Boraiah instituted suit bearing S. No.648 of 1974 for declaration and permanent injunction against Patel Chikkahanumaiah in the Court of Second Munsiff, Bangalore.
In the circumstances, the trial Court cancelled the decree dated 18.8.1975.
On 12.1.1979, Patel Chikkahanumaiah instituted the present suit bearing O.S. No.7 of 1979, subsequently renumbered as O.S. No.4802/80, under section 9 CPC in the Court of Additional City Civil Judge X , Bangalore, for setting aside the ex parte decree dated 18.8.1975 and for permanent injunction restraining Boraiah from executing the said decree on the ground that the said decree had been obtained by fraud and misrepresentation.
KAPADIA, J. This appeal by special leave is filed by the legal representatives of original plaintiff, Patel Chikkahanumaiah since deceased , against the judgment and order dated 17.12.1998 delivered by High Court of Karnataka in Regular First Appeal No.358 of 1989 whereby the High Court has dismissed the suit bearing numberO.S.4802/80 filed in the Court of Addl.
