ORDER
T.S. Doabia, J.
1.The brief facts which have led the filing of this petition be noticed :
The present petitioner, Raghunath Tambe, filed a suit. In this suit, a prayer was made that he be provided with an electric connection. The Madhya Pradesh Electricity Board through its Chairman and two private persons; namely; Chunne Khan and Abdul, were arrayed as defendants. The suit was decreed. A direction was given that the present petitioner be provided with an electric connection in the manner in which a prayer was made in the main suit. A perusal of the decree indicates that a direction was also given that the electricity connection be provided to defendants Nos. 2 and 3 in the suit from another direction. At the same time, observations were made that steps be also taken with a view to remove the lines providing electricity connection to one Poundrik and Hirway and that these two persons be provided with electricity connection through an alternate route. It is against this latter portion of the directions contained in the judgment and decree passed in civil suit No. 44-A of 1991 on 24th December, 1993, a petition was preferred by the present respondent No. 4. This petition was under Order IX, Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). It has been asserted by him that as some observations made in the above suit affects his rights i.e., the rights of Hirway, the respondent No. 4, in the present petition and he was not arrayed as a defendant, therefore, the decree should be treated as an exparte decree and the same be modified. It is this application which was allowed by the Court below. Against this, the present petitioner/decree-holder has come to this Court.
2. The learned counsel for the respondent No. 4 submits that his rights are being affected by the decree, therefore, he was within his rights to file application under Order IX, Rule 13 of the Code. It is this contention of the learned counsel for the respondent No. 4, which is being seriously opposed by the learned counsel for the petitioner. He submits that as the decree has been executed, there is no scope for interference in the proceedings which have now been initiated under Order 9, Rule 13 of the Code.
3. The question as to whether an exparte decree can be set aside at the instance of a person who is not party to the main proceedings is a matter which was gone into by the Allahabad High Court in the case reported as Surajdeo v. Board of Revenue, UP., Allahabad, AIR 1982 All. 23. In that case, it was observed that ‘where a stranger who was not a party to a suit alleges that the decree passed was obtained by fraud and collusion, he can bring a regular suit for the reliefs claimed by him but there is no hard and fast rule that he cannot bring the correct facts to the notice of the court concerned that fraud had been practised upon the Court and that the Court had committed patent illegality in passing the ex parts decree to which he was not a party.’ This decision does advance the proposition sought to be put across by the counsel for the respondent No. 4. On the other hand, the learned counsel for the petitioner placed reliance on a decision given in Subahu Kumar Jain v. Jagdish Prasad Choudhury, AIR 1990 Gauhati 66. The decision referred to above was noticed by the Gauhati High Court but was not followed. The Gauhati High Court thought apt to follow the earlier decision given by that Court in N.C.L.M. Saha v. S. R. Dev, AIR 1976 Gauhati 7.
4. I have considered the contentions raised by the learned counsel for the parties. In the original suit, the respondent No. 4 who has filed an application under Order IX, Rule 13 of the Code, was not arrayed as defendant. When the decree was passed, a specific direction was given that the persons, namely; Poundrik and Sakhram Hirway, the respondent No. 4, be provided electricity connection through an alternate route. Had the Court while deciding the matter not made above observations, something could have been said in favour of the petitioner. In the present case, the Court below made a specific reference that the electricity connection provided to the respondent No. 4 through an alternate route. Thus a conclusion can be arrived at that the rights of respondent No. 4 were being affected and these were being affected without his being on the record. If this be the situation, then Sakhram Hirway, respondent No. 4, who had filed application under Order IX, Rule 13 of the Code is well within the rights to contend that the ex parte decree passed by the Court below requires to be modified. He can file a separate suit also but the provisions of Order IX, Rule 13 of the Code, would also be available to him. For this, I am placing reliance on Surajdeo’s case (supra).
5. An argument has been raised that for getting electric connection removed from a particular site, some rights/of the Municipal Corporation would ultimately be affected. This is a matter on which no opinion is being expressed. The parties would be at liberty to get the Municipal Corporation, Gwalior, arrayed as a party to the litigation. If any right of the Corporation is affected, it may seek to protect the same.
6. It has also been argued by the learned counsel for the petitioner that the Electricity Board is within its rights to refuse electric connection and if after a provision has been made to provide electric energy through an alternate route, no specific grievance can be raised. So far as the first proposition is concerned, it may be in a possible to contend that a person has no absolute right to get electric connection from a particular route but once electric connection has been provided from a particular route and electric energy is being supplied from the same route, some right does come to vest in him and if that has to be taken away, at least he should be intimated the circumstances under which the same is being done. In the present case, Sakhram , the respondent No. 4 was, being provided electric energy from a particular route. This was sought to be shifted in pursuance of a decree passed by the civil Court. As such, he was within his rights to contend that the decree in question should not be made operative against him unless and until he is heard.
7. It has been brought to the notice of this Court that the respondent No. 4 has been provided with electric connection from alternate route. That connection may remain as it is till the suit is re-decided by the Court below now.
8. The trial Court shall send for the original file and try the original suit. It would give opportunity to the respondent No. 4 to file the written statement. The suit be decided at an early date preferably within a period of six months. The parties to appear before the Court below on 29th September, 1997.
9. In view of the above discussion, this petition is found to be without merit and the same is dismissed.