1. On 14-11-1969, the respondent in the revision petition executed a promissory note in favour of the revision petitioner herein for a sum of Rs. 10,000. On the foot of the promissory note, O. S. No. 7311 of 1970 came to be filed under Order 37 C.P.C. on 23-12-1970. The respondents herein filed I. A. 9065 of 1971 seeking leave to defend. It was his case that no consideration had passed. The court by an order dated 11-2-1972 granted conditional leave directing the respondent to deposit a sum of Rupees 6,000 on or before 29-2-1972 failing which the said petition would stand dismissed and the suit was directed to becalled on 1-3-1972. The deposit was not made in accordance with this order, therefore the suit was taken up on 1-3-1972. At that time, the counsel for the respondent was stated to be present and it was decreed. In the meanwhile what had happened is against the grant of conditional leave in I. A. 9065 of 1971, the matter was taken up to this court in C. R. p. 509 of 1972 and that was dismissed in limine. However, time was extended to deposit the sum of Rupees 6,000 by one week from 1-3-1972. On 6-3-1972, the deposit was made. It has to be presumed under these circumstances, that the decree dated 1-3-1972, was passed without being aware of the order by this court, which was communicated only on 2-3-1972. Having regard to these important facts, no objection could be taken to the decree as such. Nevertheless, on 31-7-1974, I. A. 14962 of 1974 was filed by the respondent herein under Order 37, Rule 4 C.P.C. to set aside the decree. By an order dated 24-9-1974 the said application was dismissed. On 26-9-1974, I. A. No. 22623 of 1074 was filed, purporting to be under Section 44 of the Evidence Act alleging that the decree in O. S. No. 7311 of 1970 passed on 1-3-1973 came to be obtained by fraud, since on inspection of the said promissory note, the respondent came to know that the promissory note was originally insufficiently stamped and later on another stamp was affixed and it was crossed so as to make it a valid promissory note. The learned City Civil Judge, Madras passed an order setting aside that decree on payment of costs Rs. 50 on or before 10-4-1975 and directed the suit to be called on 11-4-1975. Aggrieved by this order, the present civil revision petition has come to be filed.
2-3. Mr. M. R. Narayanaswami, learned counsel for the petitioner contends as under-
Firstly, Section 44 of the Evidence Act does not confer any substantive right on the parties. It is a matter relating to the procedure. Therefore, the application under revision itself is misconceived. Secondly, assuming that the application is maintainable, under Section 44 of the Evidence Act, the court which passed the order under revision was oblivious to the important fact that I. A. 14962 of 1974 was dismissed as early as 24-9-1974, thereby the finality had reached concerning the decree in O. S. 7311 of 1970 and thereafter, the court has no jurisdiction to reopen the matter and lastlyit is submitted that it is not correct on the part of the court to hold that the decree dated 1-3-1972 is an ex partedecree.
4. Mr. M. N. Krishnamani, learned counsel for the respondent would urge in meeting the contentions that the decree dated 1-3-1972 was passed by the City Civil Court in ignorance of the order of this court whereby the time was extended on 1-3-1972 by one week to deposit Rs. 6,000. in compliance of that order, a sum of Rs. 6,000 had been deposited and, therefore, the decree itself cannot be said to be valid. Only on inspection of the suit promissory note, the affixture of the additional stamp came to be noticed and, therefore, the defendant (respondent herein) was well justified in invoking Section 44 of the Evidence Act and no exception could be taken to the order under revision.
5. I must confess my inability to appreciate the order under revision, which only shows that the learned Judge, City Civil Court, had not even cared to look at the provisions of Section 44 of the Evidence Act. Section 44 of the Evidence Act occurs under the heading-- 'Judgments of courts of Justice, when relevant'. This provision relates to procedure. It does not confer any right on the party. Therefore, the respondent herein is not enabled to move the court under Section 44 of the Evidence Act. A mere reading of that section, which is in the following terms-
'44. Fraud or collusion in obtaining judgment or incompetency of court, may be proved. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion,'
will clearly show that if a judgment is sought to be relied upon in a proceeding, it is well open to the party to contend that the judgment sought to be relied on, was obtained by fraud. This is far from saying that a court has jurisdiction to set aside a decree under this section at the instance of one of the parties saying that it was obtained by fraud. Though the order under revision in terms does not refer to Section 44, the very application for the invoking the jurisdiction of the City Civil Court was under Section 44. Therefore, it was necessaryon the part of the learned Judge to have adverted to this section before entertaining the application. He had not cared to do so. Not only that; as if adding insult to injury no reference is made to the order in I. A. No. 14962 of 1974. He is completely oblivious to that proceeding which has got a material bearing on the issue, namely, I. A. No. 14962 of 1974, as the narration of the facts would disclose that was an application under Order 37, Rule 4 C.P.C. filed by the respondent herein to set aside the decree dated 1-3-1972. That was dismissed on 24-9-1974. That order, not having been appealed against or questioned has given finality to the decree dated 1-3-1972. Thereafter, the City Civil Court will have absolutely no jurisdiction to set aside the decree in any manner, Notwithstanding this the present application was entertained and considering the same as an ex parte decree, an order was passed setting aside the decree on terms. I am only surprised about the casual manner in which the learned City Civil Judge has approached the matter, which is hardly commendable.
6. Therefore, the revision has to be allowed and it is hereby allowed with costs.
7. Revision allowed.