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Saroj Bandhu Bhaduri and ors. Vs. Manik Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal305
AppellantSaroj Bandhu Bhaduri and ors.
RespondentManik Sheikh and ors.
Excerpt:
- .....out of a suit brought by the plaintiffs for a declaration that the two decrees obtained by the common manager of the estate of the defendants were obtained by fraud and that the decrees were void and ineffectual as against the plaintiffs. the munsiff dismissed the suit in its entirety but the lower appellate court has made a modified decree in favour of the plaintiff's. the facts shortly stated are as follows: the defendants' estate was represented by a common manager who brought a suit against the plaintiffs in the year 1914. the suit was decreed on the 17th july, 1915. an appeal to the first lower appellate court was dismissed on the 21st march, 1916, and the judgment of the first court was confirmed. a second appeal against that decree by the present plaintiffs was disposed of on.....
Judgment:

Chakravarti, J.

1. This is an appeal by the defendants and arises out of a suit brought by the plaintiffs for a declaration that the two decrees obtained by the common manager of the estate of the defendants were obtained by fraud and that the decrees were void and ineffectual as against the plaintiffs. The Munsiff dismissed the suit in its entirety but the lower Appellate Court has made a modified decree in favour of the plaintiff's. The facts shortly stated are as follows: The defendants' estate was represented by a common manager who brought a suit against the plaintiffs in the year 1914. The suit was decreed on the 17th July, 1915. An appeal to the first lower Appellate Court was dismissed on the 21st March, 1916, and the judgment of the first Court was confirmed. A second appeal against that decree by the present plaintiffs was disposed of on the 10th March, 1919. But it appears that the other suit to which the plaintiffs' claim relates was brought in the year 1917 and the present plaintiffs contested that suit. Ultimately the defendants gave up their defence and there was an ex parte decree in favour of the common manager. The decree was made on the 25th May, 1918. But it appears that the common manager was discharged on the 24th July, 1917. The contention of the plaintiffs was that, so far as the first suit was concerned, the decision of the High Court was after the common manager had been discharged. So far as the second suit was concerned, the decree by the first Court was passed after the discharge of the common manager. The present plaintiffs wanted, as we have stated before, a declaration that both the decrees were not binding on them because the common manager had been discharged before the decrees. The Court of first instance found that the fraud alleged in respect of the said decrees was not established and it further held that the remedies claimed by this suit were not available by a separate suit. The lower Appellate Court on appeal by the plaintiffs agreed with the first Court, so far as the question of fraud was concerned; but it gave a declaration to the plaintiffs so far as the decree in the second appeal in the first suit was concerned and also as regards the decree of the first Court in the second suit, on the ground that the manager had been dismissed before those dates. Against that part of the decree which was made in favour of the plaintiffs, the defendants have preferred this second appeal and it is contended on their behalf by the learned Vakil who appears for them that the suit, for the purpose of the reliefs, which were granted by the lower Appellate Court, was not maintainable by the plaintiffs.

2. We think that this contention is correct. So far as the first suit is concerned the lower Appellate Court pointed out that the decree in the first Court and in the lower Appellate Court was rightly obtained and so far as the second appeal is concerned the present plaintiffs, who were the appellants then, took no steps to get the present defendants brought on the record and allowed the suit to proceed as it was originally brought by the common manager. It is not permissible to a party to a suit to bring a separate suit to obtain the reliefs which were available to him in the previous suit itself or in execution of the decree in that suit. The plaintiffs having failed to prove that there was fraud vitiating the decrees in the previous suits, they are not entitled to question the validity of the decrees and to get a declaration in this suit that those decrees were not binding. We think that such a remedy cannot be obtained by a party to a suit in which the decree was made against him.

3. The result is that this appeal is dismissed. In the circumstances, we make no order for costs.

Greaves, J.

4. I agree.


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