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