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Bommareddi Polireddi Vs. Bommareddi Bapireddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in30Ind.Cas.639
AppellantBommareddi Polireddi
RespondentBommareddi Bapireddi and ors.
Cases Referred and Rajib Panda v. Lakhan Sendh Mahapatra
Excerpt:
evidence act (i of 1872), section 44 - compromise decree--defence that consent to tit was obtained by misrepresentation and fraud, it can be set up--suit to set aside compromise, necessity of. - - 3. is appellant by reason of his having enjoyed the benefit of that decree estopped from questioning its binding nature upon him?.....the karamama and giving a decree for plaintiffs merely on the basis of the compromise decree in original suit no. 298 of 1908 as he has done. it is argued that appellant has thereby been prejudiced in that he has had no fair opportunity of showing that, as alleged in paragragh 5 of his written statement, his consent to the razinama was obtained by misrepresentation and fraud.2. the subordinate judge has held that it is not open to appellant to attack the decree in original suit no. 298 of 1908 on these grounds without bringing a suit to set it aside. this is wrong, vide section 44 of the indian evidence act, and also nilmony mookhopadhya v. aimunissa bibee 12 c.k 156 and rajib panda v. lakhan sendh mahapatra 3 c.w.n. 660.3. we must call for findings from the subordinate judge on the.....
Judgment:

1. From the issues framed and the whole tenor of the judgment of the District Munsif it is clear that the suit was dealt with as one based on the karamama, and the point urged on behalf of appellant (1st defendant) is that the Subordinate Judge was not justified in disregarding the karamama and giving a decree for plaintiffs merely on the basis of the compromise decree in Original Suit No. 298 of 1908 as he has done. It is argued that appellant has thereby been prejudiced in that he has had no fair opportunity of showing that, as alleged in paragragh 5 of his written statement, his consent to the razinama was obtained by misrepresentation and fraud.

2. The Subordinate Judge has held that it is not open to appellant to attack the decree in Original Suit No. 298 of 1908 on these grounds without bringing a suit to set it aside. This is wrong, vide Section 44 of the Indian Evidence Act, and also Nilmony Mookhopadhya v. Aimunissa Bibee 12 C.K 156 and Rajib Panda v. Lakhan Sendh Mahapatra 3 C.W.N. 660.

3. We must call for findings from the Subordinate Judge on the following.

4. Issues:

1. Was appellant's consent to the razinama in Original Suit No. 298 of 1908 obtained by fraud?

2. Is the decree in that suit for that reason not binding upon appellant?

3. Is appellant by reason of his having enjoyed the benefit of that decree estopped from questioning its binding nature upon him?

4. Either side may adduce fresh evidence.

The finding should be submitted within two months and seven days will be allowed for filing objections.

5. In compliance with the order of this Court contained in the above judgment, the Additional Temporary Subordinate Judge, Guntur, submitted the finding on the 1st issue in the negative and on the 2nd in the affirmative.

6. This second appeal coming on for final hearing after the return of findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.


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