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Dau Dial Vs. Munna Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All98; 24Ind.Cas.978
AppellantDau Dial
RespondentMunna Lal and ors.
Cases ReferredUmrao Singh v. Hardeo
Excerpt:
civil procedure code (act v of 1908), section 20 - cause of action--place where it arises-decree obtained in calcutta--suit to set aside that decree on ground of fraud instituted in mainpuri--jurisdiction. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - (1902) 179. there the plaintiff brought a suit very like the present. i would like to add that an attempt was made to distinguish the case which is now before us from the casa of umrao singh v. i fail to see how the addition of this relief in any way differentiates the two cases......this appeal arises out of a suit in which the plaintiff claimed that it might be declared that a decree obtained by the defendant no. 1 in the calcutta high court was fraudulent and false and that it might be set aside as against the plaintiff and his father and an injunction might be issued to restrain the said defendant from taking out execution of the decree and directing him to release attached property from attachment.2. the court below held that the cause of action did not arise in mainpuri and accordingly returned the plaint for presentation in the proper court. the plaintiff comes here complaining of this order.3. the foundation of the plaintiff's case is the granting of a decree in calcutta which is said to have been obtained by fraud. it appears that the decree was obtained.....
Judgment:

Henry Richards, C.J.

1. This appeal arises out of a suit in which the plaintiff claimed that it might be declared that a decree obtained by the defendant No. 1 in the Calcutta High Court was fraudulent and false and that it might be set aside as against the plaintiff and his father and an injunction might be issued to restrain the said defendant from taking out execution of the decree and directing him to release attached property from attachment.

2. The Court below held that the cause of action did not arise in Mainpuri and accordingly returned the plaint for presentation in the proper Court. The plaintiff comes here complaining of this order.

3. The foundation of the plaintiff's case is the granting of a decree in Calcutta which is said to have been obtained by fraud. It appears that the decree was obtained in the year 1908 in the Court of first instance and was confirmed by the Appellate Court in the year 1903. The present suit was not instituted until the year 1911. It is stated that the allegation of the plaintiff is that his father, who was named as one of several defendants, was never served throughout the litigation in Calcutta.

4. Speaking generally it seems to me that where a decree has been improperly obtained, the proper and most convenient course is for the party aggrieved to go to the Court that granted the decree and got it sot aside by that Court. I do not wish to be taken when making this remark as expressing an opinion that a suit to set aside a decree will not lie. Steps to set aside a decree, whatever the procedure, should be taken the moment a party has notice that the decree has been made. The question which we have to decide, however, in the present appeal is the application of Section 20 of the Code of Civil Procedure to the facts of the present case. Section 20 provides for the Court in which the suit must be instituted. It is as follows :

5. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction

(a) the defendant or each of the defendants, when there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business or personally works for gain :

(b) any of the defendants-, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid acquiesce in such institution : or

(c) the cause of action wholly or in part arises.

6. The defendant does not reside or carry on business in Mainpuri. Accordingly the present suit cannot be instituted in Mainpuri unless the cause of action wholly or in part arose there.

7. The expression 'cause of action ' is perhaps a little difficult to define. In Bead v. Brown 22 Q.B.D. 128 : 58 L.J.Q.B. 120 : 60 L.T. 250 : 37 W.R. 131. the expression was defined in the following words :

A plaintiff's cause of action consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.

8. Now the fraud alleged in the present case is that a decree was made against him on the false allegation that he had been served when in truth and in fact he had never been served. This is the fact which it would be necessary for the plaintiff to prove. If he succeeded in proving it the decree would be set aside and if the decree were set aside, he would get all the relief to which he is entitled. It seems to me that all the plaintiff complains of happened in Calcutta and that, therefore, the cause of action arose in Calcutta and no place else?

9. The plaintiff relies on the case of Banke Bahari Lal v. Pokhe Ram 25 A., 48 at p. 53 : A.W.N. (1902) 179. There the plaintiff brought a suit very like the present. The decree had been obtained in Calcutta, but certain property had been attached in execution of the decree in Cawnpore. A Bench of this High Court decided that part of his cause of action was the attachment of the property and that that took place in Cawnpore and that consequently the suit could be maintained in Cawnpore. The learned Judges say, at page 53 : In so far as the said decree and the compromise on which it was founded are alleged to have infringed the plaintiff's right, the cause of action arose in Calcutta, where the decree was made and the compromise was admittedly entered into. The mere fact, however, of the passing of the decree did not materially affect the plaintiff until it was put into execution and the amount awarded by the decree was sought to be realised from the estate of Balmakund of which the plaintiff claims to be the owner.'

10. I may point out that in this case the plaintiff was no party to the suit in Calcutta,. His allegations were that certain persons brought a fraudulent suit and then compromised with the effect that the property which he claimed to be his was attached in Cawnpore. There is this important distinction between the facts of this case and the case before us.

11. During the course of the arguments the case of Umrao Singh v. Hardeo 29 A 418 : A.W.N. (1907) 112 : 4 A.L.J. 392 was also cited. In that case the suit was brought to set aside a decree of the Small Cause Court at Calcutta, on the allegation that it had been obtained against the plaintiff by fraud. This Court held that the suit could not be maintained at Agra.

12. In my opinion the decision of the Court below was correct and ought to be confirmed.

Tudball, J.

13. I fully agree with everything that the learned Chief Justice has said. I would like to add that an attempt was made to distinguish the case which is now before us from the casa of Umrao Singh v. Hardeo 29 A 418 : A.W.N. (1907) 112 : 4 A.L.J. 392. It is pointed out that in the present case the plaintiff asked not only to have the decree set aside on the ground of fraud : but that he also asked that an injunction might be issued against the defendant restraining him from putting it into execution. I fail to see how the addition of this relief in any way differentiates the two cases. No Court which granted the first relief, that is the setting aside of the decree, would also issue an injunction against the defendant restraining him from executing the decree which it had already set aside. In my opinion the addition of this unnecessary relief does not alter the case at all. The Court below had no jurisdiction whatsoever to entertain the suit and its order is perfectly correct.

14. By the Court.--The order of the Court is that the appeal be dismissed with costs including in this Court fees on the higher scale.


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