1. By this suit the plaintiffs seek to establish their title to land. The first defendant contends that the validity of this title has been decided adversely to the plaintiffs by the decree of a competent Court in a previous suit between the same parties, and so cannot now be tried.
2. The plaintiffs reply that the previous decree cannot support the plea of res judicata, and alternatively, that it was obtained by fraud. Mr. Justice Chapman, reversing the decree of the lower Appellate Court, held that the decree in the previous suit supports the plea of res judicata and that there is no evidence that the decree was obtained by fraud. From this judgment the present appeal has been preferred. The jurisdiction to impugn a previous decree for fraud is beyond question: it is recognised by Section 44 of the Evidence Act and is confirmed by a long line of authority. But it is a jurisdiction to be exercised with care and reserve, for it would be highly detrimental to encourage the idea in litigants that the final judgment in a suit is to be merely a prelude to further litigation. The fraud used in obtaining the decree being the principal point in issue, it is necessary to establish it by proof before the propriety of the prior decree can be investigated Mitford on Pleadings, 113. Decrees may be (i) by consent; (ii) ex parte, or (iii) after contest, apparent or real; and though each is liable to be attacked for fraud, the character of the fraud would vary with the circumstances of each case. One who seeks to impugn a decree passed after contest takes on himself a very heavy burden, and it is not satisfied by merely inducing the Court to come to the conclusion that the appreciation of the evidence and the ultimate decision in the former suit was erroneous. A prior judgment, it has been said, cannot be upset on a mere general allegation of fraud or collusion; it must be shown how, when, where, and in what way the fraud was committed: Shedden v. Patrick et Al. (1854) 1 Macq. 535. Sir John Rolt L.J. in Patch v. Ward (1867) L.R. 3 Ch. Apn. 203 discussing what is meant by fraud when it is said that a decree may be impeached for fraud, said, 'the fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case and obtaining that decree by that contrivance.' And Lord Selborne, in Ochsenbein v. Papelier (1873) L.R. 8 Ch. App. 695, 698 quotes as sound law the dictum of Chief Justice De Grey in the Dutchess of Kingston's Case (1776) 2 Sm. L.C., 11th Ed., 731, that a judgment, 'like all other acts of the highest judicial authority, is impeachable from without; although it is not permitted to show that the Court was mistaken, it may be shown that they were misled.'
3. Both suits now under consideration turn on the existence or non-existence of an alleged nim-howla, a question of fact to be determined largely by the appreciation of evidence. The Munsif in the former suit affirmed the existence of the nim-howla, and from his decision no appeal was preferred.
4. In this suit the Court of first instance came to the same conclusion on the evidence in this case. The lower Court of Appeal, however, for some reason did not agree with this appreciation of the evidence and therefore held the decree in the former suit fraudulent. 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 retrial of the merits of the original suit and a determination that the Judge who decided that suit was mistaken. But the Court in this suit has no jurisdiction to decide on the merits of the former judgment; its function is to decide whether that judgment was vitiated by fraud.
5. There, therefore, was an error of law committed by the lower Appellate Court, and Chapman J. rightly reversed its decree, for, as fraud was not proved, the prior decreed sufficiently supports the plea of res judicata.
6. The appeal must, therefore, be dismissed with cost.
D. Chatterjee, J.
7. The fraud alleged in this case was the wrongful procurement by the defendant of the entry of the nim-howla in the record-of-rights. The same allegation was made in the rent suit, and the matter was adjudicated upon in the presence of both parties. It was a matter substantially in issue in that case, and I think it would be clearly offending against the rule of res judicata to allow the plaintiff to re-open that question. I agree, therefore, in dismissing this appeal.