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Report No. 69

Section 44

I. Introductory

16.74. Introductory.-

Where judgments are relevant and have been proved accordingly, they can still be challenged, and their evidentiary value destroyed, on certain grounds. Under section 44-

"Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 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."

The section, thus, mentions three grounds of attack, namely-

(1) incompetence of the court:

(2) fraud:

(3) collusion.

The first and third grounds have not raised many questions. But the second fraud requires detailed discussion.

II. Fraud

16.75. The principle on which a judgement can be set aside on the ground of fraud was discussed in Bandon v. Beacher, (1835) 3 Cl&Fin 479 (Lord Brougham), Lord Brougham there quotes the language of Mr. Solicitor General Wedderburn summing up all the authorities, viz : "A sentence is a judicial determination of a clause agitated between real parties upon which a real interest has been settled; in order to make a sentence there must EQ a real decision. Of all these requirement and collusive suit; there is no Judge, but a person invested with the ensigns of a judicial office is misemployed in listening to a fictitious cause proposed to him: there is no party litigating. there is no party defendant, no real interest brought into question."

16.76. Where there are two or more courts having jurisdiction to entertain the suit to set aside a decree on the ground of fraud, then it is not necessary that the plaintiff should seek relief only in the court which passed the decree.

16.77. Even a court having concurrent jurisdiction over the second suit can set aside the judgment. The case of Carew v. Johnston, (1805) 2 Sch&Lef 280, cited by Stanley, J. in 1869 ILR 26 Cal 891 (913), is an instructive illustration of the power which a Court of concurrent jurisdiction will assume in a matter of this kind. The judgment in this case set aside-(a) a decree for foreclosure on sequestration in 1777 against an absent mortgagor, who was known by the plaintiff to be of weak and feeble understanding and incompetent to conduct his affairs, where advantage had been taken (in taking the accounts) of the estate of the defendant and of his absence and of his having no one to manage his defence, and (b) a sale made in 1780 in pursuance of such decree to the person under whose directions the proceedings were taken. These were set aside as fraudulent, on an original 'bill' filed for that purpose by the heir of the mortgagor in 1785.

16.78. Lord Redesdale, in the course of his judgment, said-

"On the whole I think it is impossible for me to hold the decree, which has been pronounced, conclusive on the party. If I should be of opinion that the party has brought himself completely within the saving of the Act, I cannot pay any attention to the decree, I must treat it as a nullity; but if I should think that he has not brought himself precisely within the saving of the Act by the allegation in his bill, then I must decide on the ground of unconscientious advantage being (by means of a Court of Justice) taken of the imbecility or the absence of this man, by which gross injustice has been done, and in fact a fraud practised on the Court.

That would not be a ground for relieving against trifling errors or little inaccuracies, but it will be a ground for relieving against palpable injustice, such as could not have existed, if anybody had appeared for this man to state his right, and the Court or the Master had entered into considerations of the subject, and acted upon the instruments which were the foundations of the proceedings."

Indian Evidence Act, 1872 Back

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