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Muktamala Dasi Vs. Ram Chandra De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal84,97Ind.Cas.879
AppellantMuktamala Dasi
RespondentRam Chandra De and ors.
Cases ReferredMahomed Golab v. Mahomed Sulliman
Excerpt:
- .....a suit for setting aside a previous decree is maintainable on the ground that it was obtained by false evidence, although the plaintiff in the previous suit might have known it to be false. in support of this contention, a number of cases have been cited by the learned advocate for the appellant. as there has been some conflict of decisions on this point, i think it is necessary to recapitulate them in some detail.5. the first case which has been relied on by the appellant is the case of mahomed golab v mahmnod sulliman [1894] 21 cal. 612. in that case, sir comer petheram, c.j., in delivering the judgment of the court, after referring to a number of decisions, observed as follows:the principle upon which these decisions rest is that where a decree has been obtained by a fraud practised.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the Defendant No. 1 against a judgments' and decree of the Subordinate Judge-reversing those of the Munsif. The plaintiff brought the suit to set aside a decree which was passed ex parte against him in Money Suit No. 200 of 1916 on the ground of fraud. In that case, the present plaintiff was the defendant. He was, it appears, served with proper summons; but on the date of hearing, he failed to appear in Court and the result was that a decree was passed ex parte against him. The plaintiff alleges that the claim for rent against him in the previous suit was entirely false and the decree was obtained against him on perjured evidence. On these allegations, he-went to trial. Several issues were framed in the trial Court of which the 5th issue was this:

Is the rent decree obtained by the Defendant No. 1 against the plaintiff fraudulent and one liable to be set aside

2. In a careful judgment, the Munsif considered all the reported cases on the question as to whether the plaintiff was entitled to maintain the present suit for setting aside the previous decree on the ground alleged and came to the conclusion that a fresh suit by the plaintiff for setting aside the prior decree on that ground was not maintainable. On the question of fact also, the Munsif came to a decision in favour of the defendant. On these findings, he dismissed the plaintiff's suit. The plaintiff appealed against that decree and the Subordinate Judge-started his findings by observing.

The plaintiff can only succeed if he can prove that the defendant has practised fraud upon the Court in securing the decree complained of. To determine this, it is to be previously seen if the-claim in that rent suit was false and it was so known to the plaintiff of that suit.

3. Then the Subordinate Judge discussed the evidence and, on the facts, he came to a conclusion contrary to that of the Munsif and concluded his judgment in this way:

Plaintiff's (it should be defendant's) claim in the rent suit is thus false and she must have known it to be false. The decree in that suit was evidently obtained by practising fraud on the Court. The decree in the rent suit, in my opinion, cannot stand.

4. In that view, he decreed the appeal and allowed the plaintiff's suit. The defendant has appealed to this Court and the contention on her behalf is that the Subordinate Judge is wrong in his view that a suit for setting aside a previous decree is maintainable on the ground that it was obtained by false evidence, although the plaintiff in the previous suit might have known it to be false. In support of this contention, a number of cases have been cited by the learned advocate for the appellant. As there has been some conflict of decisions on this point, I think it is necessary to recapitulate them in some detail.

5. The first case which has been relied on by the appellant is the case of Mahomed Golab v Mahmnod Sulliman [1894] 21 Cal. 612. In that case, Sir Comer Petheram, C.J., in delivering the judgment of the Court, after referring to a number of decisions, observed as follows:

The principle upon which these decisions rest is that where a decree has been obtained by a fraud practised upon the other side by which he was prevented from placing his case before the tribunal which was called upon to adjudicate upon it in the way most to his advantage, the decree is not binding upon him, and that the decree may be set aside by a Court of justice in a separate suit and not only by an application made in the suit in which the decree was passed to the Court by which it was passed, but I am not aware that ft has ever been suggested in any decided case, and, in my opinion, it is not the law that because a person against whom a decree has been passed alleges that it is wrong and that it was obtained by perjury committed by, or at the instance of, the other party, which is, of course, fraud of the worst kind, that he can obtain a re-hearing of the questions in dispute in a fresh action by merely changing the form in which he places it before the Court, and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favour it was given. To so hold would be to allow defeated litigants to avoid the operation not only of the law which regulates appeals, but that of that which relates to res judicata as well.

6. This case was followed in several other subsequent cases to which I need not refer in detail. The first discordant note to this view was struck in the case of Lakshmi Charan Sahu v. Nur Ali [1911] 38 Cal. 9326. That case was very peculiar in its facts which would support the decree. It is unnecessary to give in detail the decision in that case on the facts found because that has been dealt with in subsequent cases at considerable length. This case was followed in the case of Kedar Nath Das v. Hemanta Kumari Devi [1914] 18 C.W.N. 447. This question was again debated in the case of Nanda Kumar Howladar v. Ram Jiban Howladar [1914] 41 Cal. 990 to which one of the learned Judges who decided the case of Lakshmi Charan Sahu v. Nur Ali [1911] 38 Cal. 936 referred to above was a party. In that case, Sir Lawrence Jenkins, C.J., in delivering his judgment referred to some of the cases which were cited in the judgment of Sir Comer Petheram in the case of Mahomed Gulab v. Mahomed Sulliman [1911] 38 Cal. 936 and he observed:

There is, however, no suggestion that the decree in the previous suit was fictitious, or that the plaintiffs in this suit were prevented by contrivance from placing before the Court in the former suit any material relevant to the issue, nor has there been any subsequent discovery of evidence that goes to show fraud, or that the Court was misled in the former suit. In effect, when analysed, the judgment of the lower appellate Court is no more than a re-trial of the merits of the original suit and a determination that the Judge who decided that suit was mistaken.

7. In that view, the Court affirmed the decision of Chapman, J., who set aside the decision of the lower appellate Court which held that the decree previously obtained by the defendant in that case was bad as it was obtained by perjured evidence. Subsequent to this, there was another case, namely, the case of Nalinikanta Mukherji v. Hari Nikari : AIR1925Cal663 in which the decision of Sir Comer Petheram was followed. There have been other cases also taking the same view. In the case of Sarat Kumari Debi v. Mecher Mollah [1925] 29 C.W.N. 51 Notes a Division Bench of this Court to which one of us was a party followed the decision of Sir Comer Petheram and the same thing has been done in the case reported as Baikuntha Chandra Dhupi v. Prahlad Chandra Dhupi A.I.R. 1926 Cal. 426.

8. The decisions of this Court appear to have consistently laid clown the principle that where a case has been decided, even if it was decided ex parte, the decree cannot be set aside merely upon the ground that the claim of the plaintiff in that case was false or that it was obtained by the aid of perjured evidence, and that something more should be proved, in support of the allegation of fraud in order to have the decree set aside on that ground. In the present case, as I have already pointed out, nothing has been found by the Subordinate Judge except that the claim of the plaintiff in that suit was false and that she knew that it was false. In order to find that the claim was false, the Subordinate Judge in the present case has really decided the matter as if he was sitting on appeal against the previous judgment of the Court. This, as has been pointed out by Sir Corner Petheram as well as by Sir Lawrence Jenkins in the cases decided by them as referred to above, the lower appellate Court was not entitled to do. It is, however, contended on behalf of the respondent that there being a conflict of decisions on the point as set forth above, this matter should be referred to a Full Bench and he further argues that there should be an enumeration of the grounds on which a plaintiff can maintain a suit for setting aside a previous decree on allegation of fraud.

9. As all the recent cases which I have already cited have followed the previous decision of Sir Comer Pethoram in the case reported as Mahomed Golab v. Mahomed Sulliman [1894] 21 Cal. 612. I do not think that it is at all necessary to refer this question for the decision of a Full Bench. It is also not possible to define the grounds upon which, fraud can be found for which a plaintiff may be entitled to bring a suit for setting aside a decree. The only thing that can be definitely laid down is that the mere allegation that a previous decree had been obtained upon perjured evidence is not a ground on which a previous decree can be impeached. If this is allowed there would be nothing to prevent the unsuccessful defendant from bringing another suit for setting aside the second decree on the same ground. And this may go on without end. This appeal should, therefore, be allowed and the plaintiff's suit dismissed with costs in all Courts.

Graham, J.

10. I entirely agree and I desire to add only a few words. The question as to what constitutes fraud upon which a decree can be set aside has formed the subject-matter of numerous decisions in this and other Courts. The general trend of those decisions appears to be that, in order to set aside a decree upon such a ground, it must be shown that the fraud was practised in relation to the proceedings in Court, and the decree must be shown to have been procured by practising fraud of some sort upon the Court. One fact appears to emerge clearly from the decisions and that is that a decree cannot be set aside; merely upon the ground that it has been obtained by perjured evidence. Now, in the present case, the ground upon which it was sought to set aside the previous; decree was that it had been obtained by means of perjured evidence misleading the Court. It is manifest that, if such a ground were recognized as a ground for setting aside a decree, there would be no end to litigation. It is unfortunately notorious that decrees are obtained nod infrequently upon perjured evidence and if they are to be allowed to be assailed and set aside upon that ground, there can be no finality. In my opinion, the suit was clearly not maintainable. I agree, therefore, that it should be dismissed with costs.


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