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Abdul Haque Chowdhury Vs. Abdul Hafez - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.648
AppellantAbdul Haque Chowdhury
RespondentAbdul Hafez
Cases ReferredSee Mahomed Golab v. Mahomed Sulliman
Excerpt:
jurisdiction - fraud--setting aside decree of another court. - .....but this he was not entitled to do on the authority of the decision we have just cited. we may mention, for the guidance of the munsif, that the onus of proving fraud of the description indicated will be on the plaintiff. if the munsif is satisfied that such fraud was practised, he will be at liberty to declare the decree obtained in the small cause court to be a nullity and to direct that it shall not be executed against the plaintiff as prayed.11. the appeal is allowed in part. the case will go back to the subordinate judge who will transmit the papers to the first court for compliance with the directions we have given. costs will abide the result.
Judgment:

1. On the 23rd April 1906, the defendant-appellant before us obtained an ex parte decree, against the plaintiff-respondent in the Calcutta Small Cause Court. The decree was sent for execution to the Munsif of Satkania, in the District of Chittagong, where the parties have their permanent residence, and on the 25th January 1907, a peon arrived at the house of the plaintiff-respondent with a writ of attachment against the movables of the judgment-debtor. This event constituting a cause of action, the plaintiff brought a suit in the local Munsif's Court and prayed (1) that the ex parte decree of the 23rd April 1906 be set aside as fraudulent and (2) that the said decree be declared null and void, inoperative and ineffectual, and that an order be made that it be not executed against the defendant (the present plaintiff.)

2. On the merits, the first Court found that the ex parte decree was fraudulent and liable to be declared null and void, but the Munsif proceeded to hold that he had no jurisdiction to try the suit by reason of Section 94 of the Presidency Small Cause Courts Act. On appeal, the Subordinate Judge has decreed the suit with reference to both the prayers of the plaintiff.

3. It is conceded that Section 94 of the Presidency Small Case Courts Act does not stand in the way of the plaintiff in this litigation. What that section provides is that no suit shall lie on any decree passed by such a Small Cause Court. This is not a suit on any decree. The judgment of the Subordinate Judge on this point is correct. But the learned Vakil for the defendant appellant has argued that the Satkania Court had no jurisdiction to try the suit, and that the plaintiff should have taken action in the Calcutta Court of Small Causes where the ex parte decree was obtained against him.

4. It was laid down as far back as the year 1866 by a Full Bench of this Court in the case of Nilmani Burnick v. Puddo Lochan Chuckerbutty 5 W.R. Act X. 20 B.L.R. Sup. Vol 379, that an action lies to set aside the decree of another Court on the ground 'that it was obtained by fraud, the reason being, in the words of Sir Barnes Peacock, that the fraud gives a right of action to the party injured by it against the party guilty of the fraud'.

5. That such an action may be maintained, is also laid down by Their Lordships of the Privy Council in Radha Raman Shaha v. Prannath Roy 28 C. 475 and Khagendra Nath Mohata v. Pran Nath Ray 29 I.A. 99 : 29 C. 395, and by this Court in Mahomed Golab v. Mahomed Sulliman 21 C. 612, Abdul Muzumdar v. Mahomed Gazi Chowdhry 21 C. 605, and in Nistarini Dossi v. Nundo Lal Bose 26 C. 891 : 3 C.W.N. 670, and (on appeal) in Nistarini Dassi v. Nundo Lal Bose 30 C. 369.

6. It admits of no doubt that the Calcutta Court of Small Causes had jurisdiction to vacate its own decree if it was obtained by fraud. Every Court possesses inherent jurisdiction to prevent abuse of its process. But that is not sufficient to oust the jurisdiction of another Court to set aside that decree, if it otherwise has jurisdiction to entertain the suit see Nilmani Burnich v. Puddo Lochan Chuckerbutty 5 W.R. Act X. 20 B.L.R. Sup. Vol 379 and Sarthukram Maiti v. Nundo Ram Maiti 11 C.W.N. 579. Where a decree is set aside on the ground of fraud an injunction restraining execution is necessarily consequential thereon, even where no other relief is sought. Such a decree is in reality more than a mere declaratory decree.

7. The jurisdiction of the other Court in suits of this kind must be determined in accordance with the provisions of the Civil Procedure Code relating to jurisdiction.

8. If relief is sought in respect of some immovable property, the suit must be brought in the Court within whose local jurisdiction such property is situated. In other cases, the suit must be brought in the Court within whose local jurisdiction the cause of action arises--the cause of action here being the perpetration of fraud in obtaining the decree--or within whose local jurisdiction the defendant ordinarily resides, and personally works for gain, see the observations of Sir Barnes Peacock in the judgment of the Pull Bench in the case of Nilmani Burnick v. Puddo Lochan Chuckerbutty 5 W.R. Act X. 20 B.L.R. Sup. Vol 379. In this case the defendant resides within the local limits of the jurisdiction of the Munsif of Satkania. That Court had, therefore, in bur opinion, ample jurisdiction to entertain the suit.

9. We are unable to agree in the opinion of the Allahabad Court in the case of Umarao Singh v. Hardeo 29 A. 418 : 4 A.L.J. 392 : A.W.N. (1907) 112.

10. But though the plaintiff's suit was maintainable to the Court of the Munsif, he has dealt with it (and the lower appellate Court has merely confirmed the finding that the Small Cause Court decree was fraudulent) in a way that leaves us no option but to remand the case to be re-tried in the Court of first instance. It is not the law that because a person against whom a decree has been passed alleges that it was 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 worse 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' See Mahomed Golab v. Mahomed Sulliman 21 C. 612. The question whether the plaintiff was prevented by fraud practised on him (as by suppression of summons) from placing his case before the Calcutta Small Cause Court has not been properly gone into by the Munsif: he has discussed the merits of the defendant's claim based on the hath chitta, but this he was not entitled to do on the authority of the decision we have just cited. We may mention, for the guidance of the Munsif, that the onus of proving fraud of the description indicated will be on the plaintiff. If the Munsif is satisfied that such fraud was practised, he will be at liberty to declare the decree obtained in the Small Cause Court to be a nullity and to direct that it shall not be executed against the plaintiff as prayed.

11. The appeal is allowed in part. The case will go back to the Subordinate Judge who will transmit the papers to the first Court for compliance with the directions we have given. Costs will abide the result.


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