R.R.Rastogi, J. - (1.) By this writ petition under Article 226 of the Constitution the petitioners pray for the issue of a writ of certiorari directing the respondents to produce the records of the case and quashing the judgments of the Munsif, Mohammadabad, dated 15-9-78 and the 1st Additional District Judge, Ghazipur, dated 13-9-1979. The facts are these. A notice under section 4 (2) of the U.P. Consolidation of Holdings Act, hereafter the Act' was issued in 1965 whereby villages Naicho alias Unchadih and Khijirpur, Pargana Dehma, District Ghazipur, were brought under consolidation operations. The petitioners were Bhumidhars in these villages. The provisional consolidation scheme was prepared on 15-2-1968. The appeals in regard thereto were finally disposed of on 6-4-68. On 19-12-68 the present petitioners filed suit no. 135 of 1968 in the Court of the Munsif, Mohammadabad against the Gaon Sabha of village Unchadih through Narsingh Rai, Pradhan, for injunction restraining the latter from interfering with the possession of the petitioners over certain plots of the aforesaid two villages and for recovery of Rs. 10/- as damages. The cause of action for that suit was stated to have arisen between December 3 and 17, 1968. That suit was decided ex parte on 28-7-1979. It may also be noted at this very place that a notification under section 52 of the Act was issued on 20-9-1975 stating that the consolidation operations in the aforesaid two villages had been closed.
(2.) The petitioners moved execution application under Order 21 Rule 32 C.P.C. on 7-7-1979 for execution of the aforesaid decree against the Gaonsabha, Unchadih, through its Pradhan, Shiv Nath Rai and Secretary Ram Pati Lal, respondents 3 to 5. Shiv Nath Rai filed an objection under section 47 C.P.C. contending that in suit no. 135 of 1968 the decree had been obtained by fraud and the Gaonsabha had no knowledge of the suit that the suit having been filed during the pendency of the consolidation operations in these villages, the decree passed therein was without jurisdiction, and hence a nullity. It was also pleaded that the suit was barred by section 49 of the Act and, further, that there had been no disobedience of the decree. The execution court allowed the objection and dismissed the execution application by order dated 15-9-78. There was an appeal filed from that order by the petitioners which was dismissed on 13-9-1979 by the 1st Additional District Judge, Ghazipur, and aggrieved the petitioners had come upon to this Court by way of this writ petition.
(3.) A counter affidavit has been filed on behalf of the respondents 3 to 5 in which it has been averred that the aforesaid decree had been obtained by fraud because there had been no service of the summons of the same on the Pradhan of the Gaonsabha. The contentions raised in the objection have also been reiterated. The petitioners have filed a rejoinder affidavit.;