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Sadashiv Lakshman Deo Vs. Radhabai Vishnu Sathe - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 94 of 1928
Judge
Reported in(1929)31BOMLR504
AppellantSadashiv Lakshman Deo
RespondentRadhabai Vishnu Sathe
Excerpt:
.....for making fraudulent claim-bombay revenue jurisdiction act (x of 1876), section 4(c)-assistance suit - suit arising out of execution proceedings-civil court-jurisdiction -suit not maintainable.;the plaintiff obtained a decree for rent in an assistance suit in a mamlatdar's court, and in execution of is attached a buffalo belonging to the defendant. a third party intervened and got the attachment raided on the ground that tee buffalo had been pledged to him. the plaintiff thereupon filed a suit to recover damages from the intervening party on. the ground that he had falsely alleged that the buffalo was pledged to him and thereby prevented her from realising the decretal amount by its sale:-;by marten c.j., that the suit founded on tort to obtain damages for the fraud of the intervenor..........or wrongly decided that the buffalo in question had been pledged by the judgment-debtor with the present applicant. accordingly, the attachment was raised. the legal question, therefore, is, can the attaching creditor subsequently bring in the civil courts an action for that against the person who put forward this successful claim to be a pledgee of the buffalo apparently that point has not been considered in either of the lower courts. i gather it was first suggested by my brother baker when the case came up for admission.3. now this is a serious point of law and i may refer to what lord justice james says in flower v. lloyd (1878) 10 ch. d. 327:-where is litigation to end if a judgment obtained in an action fought oat adversely between two litigants sui juris and at arm's length.....
Judgment:

Amberson Marten, Kt., C.J.

1. This is a story about a buffalo. Many pages of judgment are before us. And even that does not exhaust the literature on the subject, because, prior to the two judgments before us, there were proceedings in the Mamlatdar's Court in which the buffalo is question was attached in execution of the Mamlatdar's decree. It appears, however, from a judgment in the case that the real dispute between the parties is not as to the buffalo, but arises over some faction dispute in connection with rival schools. Under those circumstances it is perhaps not surprising that the parties have succeeded in raising a large number of technical points, and that their ingenuity has resulted in the bringing of the present curious form of action for which no precise precedent has been cited to us. The buffalo is said to be worth Rs. 150. There is some reference as to the buffalo's milk and its calf, but the present judgment is confined to the buffalo.

2. In so far as one can consider this case at all seriously, the main point of law seems to be this. The Mamlatdar rightly or wrongly decided that the buffalo in question had been pledged by the judgment-debtor with the present applicant. Accordingly, the attachment was raised. The legal question, therefore, is, can the attaching creditor subsequently bring in the civil Courts an action for that against the person who put forward this successful claim to be a pledgee of the buffalo Apparently that point has not been considered in either of the lower Courts. I gather it was first suggested by my brother Baker when the case came up for admission.

3. Now this is a serious point of law and I may refer to what Lord Justice James says in Flower v. Lloyd (1878) 10 Ch. D. 327:-

Where is litigation to end if a judgment obtained in an action fought oat adversely between two litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the Plaintiffs bad sustained on this appeal the judgment in their favour, the present Defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum.

Then the learned Judge proceeds (p. 334):-

The Court ought to pause long before it establishes a precedent which would or might make in numberless cases judgments supposed to be final only the commencement of a new aeries of actions. Perjuries, falsehoods, frauds, when detected, must be punished and punished severely; but, in their desire to DHABAI prevent parties litigant from obtaining any benefit from such foul means, the court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mas3 of those very perjuries, falsehoods, and frauds.

It is only right to point out that though Lord Justice Thesiger agreed with the judgment of Lord Justice James, Lord Justice Baggallay reserved his opinion.

4. On the other hand, there is authority for the proposition that an action lies to set aside a judgment obtained by fraud. Thus, in Wyatt v. Palmer [1899] 2 Q.B. 106 Lord Lindley, Master of the Rolls, stated that there was jurisdiction to entertain an action to impeach a judgment on the ground of fraud. And in Cole v. Langford [1898] 2 Q.B. 36 that Court did set aside a judgment which had been obtained by fraud.

5. Here there is no question of setting aside the Mamlatdar's order. Indeed, it is not suggested that an action would lie in this Court for that purpose. The present action is stated to lie in tort to obtain damages for the fraud of the applicant in inducing the Mamlatdar to decide the attachment question in favour of the applicant. Now I am not prepared to say that in no event would any suit lie in damages for a fraud practised on the Court. One, for instance, has been cited to us in Bank of Madras v. Multan Chand Kanyalal I.L.R. (1903) Mad. 343 where by a fraud the seal of the Court was improperly put on a certain warehouse, and this induced the judgment-creditor not to seize certain articles which he was entitled to seize, In that case the Court entertained an action for damages.

6. But here what we are substantially asked to do is to re-hear the decision of the Mamlatdar on this very point as to whether the buffalo was pledged to the applicant. It seems to me that ii on a simple point of fact like that we were to allow this class of suit, then practically in every Mamlatdar's suit it would be open to the defeated party to bring an action in the ordinary civil Courts for damages for fraud against his successful opponent, in inducing the Mamlatdar to arrive at the decision which he did. In this connection it must be remembered that in one sense every false claim put before the Court deliberately is in the nature of fraud. No precedent for such a suit has been cited to us, and, speaking for myself, I respectfully share the apprehension which Lord Justice James expressed in Flower v. Lloyd, if we were to open the door to suits of that description. Still less ought we to do so if the real dispute between the parties in this case is not about the buffalo, but is due to rival factions connected with rival schools.

7. It seems to me, therefore, that on this ground alone the applicant is entitled to succeed. He has put forward a further point based on the Bombay Revenue Jurisdiction Act, 1876, Section 4(c), that this is a claim

connected with or arising out of..the rendering of assistance by Government or any officer duly authorized in that behalf to superior holders or occupants for the recovery of their dues from inferior holders or tenants.

It is said that the suit in the Mamlatdar's Court was a rent suit, and that accordingly the suit in the Mamlatdar's Court was an assistance suit covered by that particular section, and that therefore the present proceedings that arise out of what happened there are caught by that particular Act. But personally I prefer to express no opinion on that point. I prefer to base my judgment on the broad proposition which I have already stated.

8. Accordingly, I would make the rule absolute, discharge the orders in the Court below, and dismiss the suit.

Murphy, J.

9. The Mamlatdar passed a decree in plaintiff's favour in an assistance suit for rent. In the course of the execution proceedings under that decree, the plaintiff got attached a buffalo belonging to defendant, On this, the petitioner applied to the Mamlatdar to raise the attachment on the ground that the buffalo had been pledged to him, and the Mamlatdar accepting his allegation did so. Plaintiff's case was that the alleged pledge was a fraud, and she sued for damages. Both the lower Courts decreed the plaintiff's claim.

10. It has been objected in appeal that the suit was not maintainable owing to the bar of Section 4, Clause (c). of the Bombay Revenue Jurisdiction Act of 1S76. It seems to me, on a consideration of the provisions of this section, which takes away the jurisdiction of the civil Court in certain matters, that the claim in this case does fall within Sub-section (c) of the Act. For Sub-section (c) reads as follows:-

Claims connected with or arising out of any proceedings for the realization of land-revenue or the rendering of assistance by Government or any officer duly authorized in that behalf to superior holders or occupants for the recovery of their dues from inferior holders or tenants,

11. The claim in this ease certainly arises out of the execution proceedings in the assistance suit. The cause of action is based on fraud, and what the claimant seeks is to avoid what has happened in those proceedings. I think the claim does fall within the above clause, and since it is not within any of the exceptions in the provisos to Sections 4 and 5, I think the suit is not maintainable on this ground also.

12. Marten, C.J. (On costs). The applicant here has succeeded on points which were never taken in either of the Courts below. Under these circumstances we think that the justice of the case, having regard to all the circumstances, would be met by directing that each party should bear their own costs throughout.

13. Rule made absolute. Discharge the orders of the Courts below. Dismiss the suit, and direct each party to bear their own costs throughout.


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