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Kunhalikandegath Pudiapurayil Kunhamod Kutti Vs. Pallikkalageth Avarangandegath Kutti Mammi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1896)6MLJ353
AppellantKunhalikandegath Pudiapurayil Kunhamod Kutti
RespondentPallikkalageth Avarangandegath Kutti Mammi
Cases ReferredSee Duronidhur Sen v. The Agra Bank I.L.R.
Excerpt:
- .....l.r. 5 c. 86. be by way of injunction to restrain the party from executing the decree. the court cannot itself be made a party to the suit. see duronidhur sen v. the agra bank i.l.r. (1879) c. 86 and references thereunder; daniell' chancery practice,' 3rd edition, 1218; 4th edition, 1471 ; drury on injunctions, 96'; story's equity jurisprudence, 899--900.2. we cannot allow the plaint to be amended as to do so would change the character of the suit.3. the second appeal must, therefore, be dismissed with costs. note-dan's.ch. pr. 6th edn.1531, and bigelow on fraud,1888. edn.107
Judgment:

1. We agree with the Acting District Judge that the suit is not properly one for a declaratory decree under Section 42 of the Specific Relief Act. The ground of action really is that the defendant by fraud has obtained an advantage in proceedings in a court having jurisdiction which must necessarily make that court an instrument of injustice, and the remedy would appear to I.L.R. (1886) M 354 : (1885) 11 R. 7A 884 : (1879) L.R. 5 C. 86. be by way of injunction to restrain the party from executing the decree. The Court cannot itself be made a party to the suit. See Duronidhur Sen v. The Agra Bank I.L.R. (1879) C. 86 and references thereunder; Daniell' Chancery Practice,' 3rd Edition, 1218; 4th Edition, 1471 ; Drury on Injunctions, 96'; Story's Equity Jurisprudence, 899--900.

2. We cannot allow the plaint to be amended as to do so would change the character of the suit.

3. The second appeal must, therefore, be dismissed with costs.

NOTE-Dan's.Ch. Pr. 6th Edn.1531, and Bigelow on Fraud,1888. Edn.107


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