Report No. 69

V. A Verbal Point

16.95. We may now mention a verbal point concerning section 44. While providing that a party may challenge on the ground of fraud etc., a judgment etc. which is relevant under sections 40, 41, 42, section 44 does not mention section 43 presumably because section 43 is a negative provision. But, if a new section1is added to deal with previous convictions, that section may be mentioned in section 44 also. We recommend that section 44 should be so amended.

1 See proposed section 42A.

16.96. We are also recommending the insertion of another section1 which also may be mentioned in section 44.

1. See proposed section 43A.

VI. Recommendation

16.97. Recommendation.-

In the light of the above discussion, we recommend that section 44 should be revised as below:

Revised Section 44

"44. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41, 42 or 43A, and which has been proved by the adverse party-

(a) was delivered by a court not competent to deliver it, or

(b) was obtained by fraud or collusion.

Gross Negligence of Guardian and its Effect on Judgment