Francis W. Maclean, K.C.I.E., C.J.
1. This is an appeal from a judgment of Mr. Justice Stevens.
2. That learned Judge has stated with accuracy the nature of the respective cases of the plaintiff and of the defendant, and the contentions of the parties, and I do not think any useful object will be attained by my recapitulating them.
3. The real question we have to decide is, whether the defendant is entitled to show in this suit, that the decree obtained in the previous suit between the same parties was obtained by fraud, or whether or not, so long as that decree stands unreversed, it must be taken to be binding upon him.
4. I concur with the learned Judge in the Court below in thinking that the question turns upon the construction of Section 44 of the Evidence Act, though, so far as I can gather from his judgment, he scarcely appears to have discussed the actual language of the section.
5. There is but little authority upon the point in the reported decisions of the Courts of this country, whilst to my mind, the decisions in the Courts of England are of no assistance to us, for we have to consider, not what the law in England is [and upon this it may be taken that a decree is binding upon the parties so long as it stands unreversed; see Huffer v. Allen (1866) L.R., 2 Exch., 15], but what the law is in India, having regard to the provisions of the section in question.
6. And, in dealing with this point, i.e., in dealing with the construction of an Act intended to codify a particular branch of the law, I may, perhaps, usefully refer to the observations of the late Lord Herschell, in the case of Bank of England v. Vagliano (1891) L.R. App. Cas., 107 (145), which have been cited with approval by their Lordships of the Privy Council in the case of Norendra Nath Sircar v. Kamalbasini Dasi (1896) I.L.R., 23 Cal., 563: L.B., 23 I.A., 18.
7. The section is as follows: 'Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Sections 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.'
8. The language of the section is very wide, and reading that language literally, in its ordinary acceptation, and according to its ordinary and natural meaning, it certainly covers the present case. I take it we are bound to construe the section according to the plain meaning of the language used, unless we can find either in the section itself or in any other part of the statute, anything that will either modify or qualify, or alter the statutory language [See per Lord Halsbury, L.C., in the case of Vestry of the Parish of St. John's, Hampstead v. Cotton (1886) L.R., 12 App. Cas., 1 (6)] even if the result of such construction lead to anomalies, or be productive even of absurdity.
9. Our attention has not been drawn to any words in the section or to other parts of the Act, which modify or qualify the ordinary meaning of the language used.
10. In the present case we find a decree relevant under Section 40 proved by the plaintiff, the party adverse to the defendant in the suit; how are we to get out of the plain words of the section, and say that the latter may not show that this decree was obtained by fraud? It is, perhaps, strange to those conversant with the English practice to hold that a defendant to a suit can, in that suit, show that a previous judgment obtained against him by the same plaintiff in a previous suit, was obtained by fraud, without initiating independent proceedings to have that judgment set aside. As against that, however, it must be borne in mind that in this country a looser practice would appear to prevail, for, apparently a defendant may challenge, say, a registered mortgage deed, which is being sued upon, without bringing a suit to set it aside. As was pointed out by Lord Morris in the case of Ali Kadar Bahadur v. Indar Parshad (1896) L.R., 23 I.A., 92 (95): I.L.R., 23 Cal., 950 (954), it is not easy to understand how, in such cases, the question comes to be discussed: but if one were at liberty to speculate as to the motives of the Legislature, it is possible that it may have been influenced by some consideration as to this practice, in passing the section now under discussion.
11. If the section do not cover a case such as the present, to what class of case does it apply, and what is the real object of the section? To this we have received no reply.
12. The argument against placing a construction on the section consistent with the ordinary meaning of the language is that it would convert it into a procedure section, and that the Act is one codifying the law of evidence and not one of procedure. But there are several other sections of the Act which import questions of procedure, for example, Sections 66, 135, 136 and 150. I fail, however, to see why, even though it may import a matter of procedure, we should not construe the section according to the ordinary meaning of its language.
13. As regards authority upon the point, the case of Ahmedbhoy Hubibhoy v. Vullbeebhoy Gassumbhoy (1882) I.L.R., 6 Bom., 703, was relied upon by the respondents, but upon close examination that case appears to me to be an authority the other way. In that case the first and second defendants set up that the previous decree had been obtained by fraud; the preliminary issue was (I am not quoting the whole of it, which will be found at page 705 of the report) 'Whether the said decree is not for the purposes of this suit, a binding and valid decree * * * * and whether the said decree is not in this suit binding upon the defendants and each of them, and whether the defendants, or any or either of them, can in this suit in any way object or dispute the said decree. The matter was dealt with as upon demurrer. The question to which the learned Judge applied his mind will be found at page 709 of the report, where he says, and the question shortly is whether, admitting the allegation of fraud and collusion made by the first and second defendants, they are entitled to set up such fraud and collusion in their defence in this suit, while the decree in suit No. 401 of 1866 stands unreversed.'
14. That issue the learned Judge found in favour of the first and second defendants, and said, after a careful review of the law in England on the subject, that Section 44 of the Evidence Act clearly covered the case.
15. The learned Judge says: 'The language is wide enough to allow a party to the suit in which the judgment was obtained to aver that it was obtained by the fraud of his antagonist, though the judgment stands unreversed,' and this view is adopted in the case of Manchharam v. Kalidas (1894) I.L.R., 19 Bom., 821 (826).
16. The case of Bansi Lal v. Ramji Lal (1898) I.L.R., 20 All., 370, cannot be regarded as an authority in the respondents' favour, for Section 44 was not even mentioned.
17. So far, then, as authority goes, it would appear to be in the appellant's favour, but apart from authority, in my opinion the defendant was entitled to show in this suit that the decree in the former suit was obtained by fraud.
18. Then it is urged that the Courts below ought not to have gone into the question of fraud, but I think they were bound to do so. When the judgment, which was not pleaded, was put in against the defendant, he was entitled to show it was obtained by fraud. No objection was taken to this before the Munsif, and no application was made by the plaintiff for any adjournment on the ground that he was taken by surprise, and the Munsif decided against the case of fraud, and in the present respondents' favour. There is nothing in this point.
19. I think, however, the respondent is entitled to a remand to have the question of fraud or no fraud, in relation to the previous decree, more precisely found by the District Judge. His finding is very loose. He says: 'The compromise upon which the decree in the former suit was passed seems to me to be almost certainly a fraudulent one.' That is far from sufficient. There must be a remand to ascertain whether the previous decree was obtained by fraud, and if obtained by fraud, whether the tenancy set up by the defendant is established. The decree of Mr. Justice Stevens must be reversed, as also that of the District Judge, and the case remanded, but the respondents must pay the costs both here and before Mr. Justice Stevens.
20. I am of the same opinion. This appeal arises out of a suit brought by the plaintiffs for khas or direct possession of a tank, and for damages on account of the defendant having caught fish in the tank. The defendant admitted the plaintiffs' proprietary right in the tank, but denied their right to khas possession, and alleged that he was entitled to such possession as their tenant, and he denied his liability for the damages claimed.
21. At the trial, the plaintiffs put in a decree based on a compromise in a previous suit between them and the defendant to prove their right to khas possession. The defendant impeached that decree as fraudulent. But the first 'Court held that the plea of fraud was not made out, and that the plaintiffs' right to khas possession was proved, and it accordingly gave the plaintiffs a decree.
22. On appeal by the defendant the learned District Judge set aside that decree without coming to any definite finding, either on the question of fraud or on question of the tenancy set up by the defendant, and merely observing in his judgment that the compromise seemed 'to be almost certainly a fraudulent one,' and that the position of the tank very strongly corroborates the evidence for the defendant as to his ancient possession of the tank. '
23. On second appeal by the plaintiffs, Mr. Justice Stevens has reversed the decree of the District Judge and restored that of the Munsif on the ground that the case was concluded by the decree in the previous suit, and that so long as it was not set aside either by proceedings duly taken in that suit or by a separate suit brought for the purpose, it was not open to the defendant, who was a party to the decree, to challenge it under Section 44 of the Evidence Act in any subsequent suit in which it is used as evidence against him.
24. Against that decision the defendant has preferred this appeal, and it is contended on his behalf that it was open to him under Section 44 of the Evidence Act to show in this suit that the decree relied upon by the plaintiffs was obtained by fraud, and that the case should be remanded to the District Judge to determine the questions of fraud and tenancy upon which he has not come to any clear finding.
25. On the other hand, it is urged by the learned Counsel for the plaintiffs that the view taken by Mr. Justice Stevens is correct; that Section 44 of the Evidence Act, as its position in the Act would indicate, is intended only to state the rule of law relating to evidence; that a decree of a competent Court may be impeached on the ground of fraud, but it is not intended to lay down any rule of procedure as to how it should be impeached, that is, as to whether the party seeking to impeach it should proceed by a separate suit or not; and that if Section 44 is to have the effect contended for by the defendant, it would lead to certain very anomalous and unreasonable consequences.
26. After carefully considering the arguments on both sides, I think the contention of the defendant ought to prevail. The question before us is one of the construction of Section 44 of the Indian Evidence Act. The proper mode of dealing with such a question is that indicated in the following observations of Lord Herschell in the Bank of England v. Vagliano (1891) L.R., App. Cas., 107, which were adopted by the Privy Council in Norendra Nath Sircar v. Kamalbasmi Dasi (1896) I.L.R., 23 Cal. 563: 'I think,' said his Lordship, 'the proper course is in the first instance to examine the language of the Statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not start with enquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.' Examining then the language of Section 44 of the Evidence Act which runs in these words: 'Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Sections 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,' I find that it provides that a party to a suit or other proceeding may show that a judgment, order or decree which is relevant, under Section 40, that is, which would as a judgment inter parties, operate as res judicata, or which is relevant under Section 41, that is, which is evidence as a judgment in rem, or which is relevant under Section 42, that is, which is evidence as a judgment relating to a public matter, and which is proved by the adverse party, was passed by a Court which had no jurisdiction to pass it or was obtained by fraud or collusion. Or in other words (confining our attention to so much of the section as bears upon the present case) a party to a suit may show that a judgment or decree, which is conclusive as a judgment or decree inter partes and which has been proved, against him by his adversary in that suit, was obtained by fraud. And when may the party show that the judgment or decree was obtained by fraud? The context evidently shows that the answer must be 'In the suit in which the judgment is proved against him by his adversary.' The language of the section clearly shows that it is very different from a provision such as the plaintiffs contend it is intended to be, merely declaring that a judgment which is conclusive or admissible in evidence against any party may be impeached by such party on the ground of fraud or collusion. If that had been the object of the section the words to a suit or other proceeding 'and' and which has been proved by the adverse party' would have been wholly unnecessary. To accept the plaintiffs' contention would be to hold that these portions of the section are matters of elaborate surplusage intended to serve no purpose and needlessly introduced into the section, notwithstanding that they are calculated to mislead.
27. The section makes the same provision for impeaching on the ground of fraud judgments inter partes, and judgments in rein or judgments relating to public matters. Now it is not disputed, nor can it be disputed (see Taylor on Evidence, 9th edition, Section 1713) that a stranger to a judgments rem or a judgment relating to a public matter against whom such judgment is used in evidence under Section 41 can impeach it on the ground of fraud in the suit in which it is so used. And it is not reasonable to suppose that the same words are used in a different sense when applied to judgments inter partes, that is judgments relevant under Section 40.
28. Then, again, the section makes the same provision for impeaching a: judgment on the ground of fraud that it does for avoiding a judgment on the ground of want of jurisdiction. Now, there can be no question that in the latter case the objection may be substantiated in the case in which the judgment is used as evidence. It would, therefore, not be reasonable to hold that the provision in the former case, which is expressed in the same words, should have a different meaning.
29. The language of the section, therefore, is clearly in favour of the construction contended for by the defendant, and against that suggested by the other side. Nor can the position of the section in the Act be taken to control the plain meaning of its language. And I may add that there are many sections, of the Evidence Act, such as Sections 66 to 73, 130, 135, 136, and 150, which relate more or less to matters of procedure, so that there is nothing singular or unreasonable in Section 44 laying down, not only a rule of law relating to evidence, but also a rule of procedure.
30. Let us next examine how far the construction, which the defendant asks us to adopt, does really lead to any anomalous and unreasonable consequences as the plaintiffs contend.
31. It was contended by the learned Counsel for the plaintiffs that if a party to a suitor proceeding was allowed to show in such suit or proceeding that, a judgment against him was obtained by fraud, it would be open to a judgment debtor in the course of execution proceedings to impeach the decree sought to be executed a result which could never have been intended. The answer to this contention is that Section 44, if its language is carefully considered, cannot lead to any such result. For the judgment or decree, which the section allows a party to impeach on the ground of fraud must, as the section says, be one 'which has been proved by the adverse party 'a qualification which cannot apply to a decree sought to be executed, a decree not requiring; to be proved in the proceedings taken to enforce it. But then it was argued that, if those words are to have full effect given to them, the section will fail to provide for the setting aside by a separate suit of a judgment or decree on the ground of fraud, when such judgment or decree has not yet been used against the party seeking to set it aside. The answer to this argument is that the right of a party to set aside by a suit a judgment or decree on the ground of fraud, exists independently of the provisions of the Evidence Act.
32. It was next contended by the learned Counsel for the plaintiffs that if the construction proposed by the defendant be adopted, it would be open to a party against whom a suit for money is brought by an executor to the estate of a deceased creditor to show in such suit that probate was obtained by fraud. I do not think any such consequence would follow. For the executor in such a suit has not to prove or even produce the order granting probate, the production of the probate being sufficient for his purpose, and the probate not being a judgment, order or decree, does not come within the scope of the section.
33. Then it was contended for the plaintiffs that if Section 44 was construed literally it might allow a party to impeach a judgment on the ground of his own fraud. That, however, is an objection which will hold good equally against the plaintiffs' construction of the section. For if a party is not to be allowed to impeach a judgment on the ground of his own fraud he ought to be precluded from doing so quite as much when he seeks to establish such fraud in the case in which the judgment is used as evidence, as when he brings a separate suit for the purpose. If a party is precluded from doing so he is precluded, not by any rule of evidence, but by the general principles of justice which prohibit a person to plead his own fraud.
34. It was farther urged that whereas a suit to set aside a decree obtained by fraud must, as provided by Article 95 of schedule II of the Limitation Act, be brought within three years after the fraud becomes known to the party wronged, if the defendant's construction of Section 44 of the Evidence Act be adopted, such party will have unlimited time to impeach a judgment on the ground of fraud. This no doubt is an anomaly. But there is a material difference between the relief obtainable by a suit for setting aside a decree obtained by fraud and that which a party can have by showing as defendant in an action in which such a decree is used as evidence against him that it was obtained by fraud.
35. The supposed anomalous and unreasonable consequences pressed upon our attention in the argument for the plaintiffs (respondents) are not, therefore, of a nature such as would justify our rejecting a construction, which is so clearly in accordance with the plain meaning of the words of the section.
36. There is no dispute that a stranger to a judgment against whom it is used as evidence, either as a judgment in rem or as a judgment relating to a public matter, may impeach it on the ground of fraud in any case in which it is so used. Taylor in his Treatise on the Law of Evidence, after stating that the rule on this point is clear, observes (in paragraph 1713) 'whether an innocent party would be allowed to prove in one Court that a judgment against him in another Court was obtained by fraud is not equally clear, as it would be in his power to apply directly to the Court which pronounced the judgment to vacate it.' And Bigelow in his work on the Law of Estoppel says (see page 208), 'whether parties may set up fraud has been a subject of conflicting opinion.' Thus in systems of law to which our own is more or less allied, the view contended for by the learned Counsel for the plaintiffs is by no means a clearly settled and accepted one.
37. No doubt the most natural course for a party to a judgment who seeks to impeach it for fraud, is to apply to the Court which pronounced the judgment to set it aside. But if it is conceded, as it must be, that in addition to that course a party may also institute a suit directly to set aside a judgment obtained against him by fraud, there is not much reason why he should not also be allowed to avoid its effect in any suit in which it is used as evidence, by showing in that suit that it was obtained by fraud. On the contrary, by allowing a party to do so, we avoid multiplicity of suits.
38. It remains now to say a few words with reference to the cases cited. Some of these, as for instance the case of Bansi Lal v. Ramji Lal (1898) I.L.R, 20 AIL, 370, are of very little use for our present purpose, as they were decided without any reference to Section 44 of the Evidence Act. Of the remaining cases no one is directly in point upon the question now before us, and if in some of them there occur observations against the defendant's view, there are others, such as the cases of Nilmony Mookhopadhya v. Aimunissa Bibee (1885) I.L.R., 12 Gal., 156; Ahmedbhoy Hubibhoy v. Vulleebhoy Cassimbhoy (1892) I.L.R., 6 Bom., 703, and Manchharamy. Kalidas (1894) I.L.R., 19 Bom., 821 (826), which contain dicta in favour of that view.
39. For the foregoing reasons I think the contention of the defendant that it is open to him in this case under Section 44 of the Evidence Act to show that the decree relied upon by the plaintiffs was obtained by fraud, is correct and ought to prevail, and the judgments of Mr. Justice Stevens and of the District Judge of Cuttack ought to be set aside and the case sent back to the District Judge for disposing of it after determining whether the decree relied upon by the plaintiffs was obtained by fraud, and if it was obtained by fraud, whether the tenancy set up by the defendant is established.