Report No. 65
II. Indian Law
18.3. Effect of fraud is judgments-Analysis in Bombay case of various situations.-
With reference to Indian law, we shall first examine the effect of fraud on judgments in general. In India, it is well-established that the validity of a judgment is subject to attack on the ground of fraud. In Ahmedbhoy v. Rubibhoy, 1882 ILR 6 Born 703 the Bombay High Court considered at length the question of fraud as affecting judgments, on general grounds of English law, with reference to three classes of person namely-
(b) persons, who though not privies, were represented in the proceedings;
The High Court observed-
"In the first place the judgment may be an honest one, obtained in a suit conducted with good faith on the part of both plaintiff and defendant. In such a case, the previous judgment is clearly binding both on class (a) and class (b); class (c) will be in no way affected by the judgment if it is inter parties, but if it be one in rem passed by a competent Court they will be bound by and cannot controvert it. In the second place, the judgment may be passed in a suit really contested by the parties thereto, but may be obtained by the fraud of one of them as against the other. There has been a real battle, but a victory unfairly won. In this case, again class (a) and class (b) and, as regards judgments in rem, class (c), are in one and the same position, which is that of the parties themselves.
The judgment is binding on them so long as it remains in force, but it may be impeached for fraud and set aside if the fraud be proved. In the third place, the previous judgment may have been obtained by the fraud and collusion of both the parties to the former suit. In this case, there has been no battle, but a sham fight. As between the parties to such a judgment, it is binding. The same rule will apply between the privies of these parties, except probably where the collusive fraud has been on a provision of the law enacted for the benefit of such privies."
We have quoted this passage to show the general approach adopted by courts in India in relation to fraud as affecting the validity of a judgment.
18.4. Ex-parte decrees.-
It may be noted that these principles apply even where the procedural law allows other remedies to deal with the particular species of fraud. Thus, in the case of an ex parts decree, the defendant can file a suit to have it set aside on the ground of fraud, even though he has failed to have it set aside under Order 9, rule 13, of the Code of Civil Procedure, 1908.1 The two remedies are distinct. The remedy under Order 9, rule 13, is a summary one. The suit on fraud is really an analogue of the Equity 'Bill'.2
1. Radha Raman v. Pran Nath, ILR 28 Cal 475 (PC).
2. Cf. Wyett v. Palmer, W.N. (20th May, 1899), p. 74, referred to in Nistarini Dassi v. Nundo Lal Bose, ILR 26 Cal 891 (915).
18.5. Power of Court.-
The authorities on the question as to the powers of a Court to treat decrees which had been obtained by fraud as nullities, are reviewed at some length in the judgment on the original side in the High Court at Calcutta by Stonley, J in the case of Nistarini Dassi v. Nundo Lal Bose, 1899 ILR 26 Cal 891 (907 to 910). In the latter case of Rajib - Panda v. Lakhan Sendh Mahapatri, 1899 ILR 27 Cal 11 (15, 21) (Melean, C.J. and Banerjee, J.), also, the true meaning and effect of section 44 of the Evidence Act were considered.
18.6. Fraud as a defence to a judgment.-
Fraud, besides being made a ground of attack, can be a ground of defence also. When a subsisting judgment, order or decree, which is relevant under, sections 40, 41 or 42 of the Indian Evidence Act, 1872, is set up by one party to a suit as a bar to the claim of the other party, it is not necessary for the party against whom such judgment, order or decree is set up, to bring a separate suit to have the same set aside, but it is open to such party, in the same suit in which such judgment, order or decree is sought to be used, against him, to show, if such be the case, that the judgment, order or decree relied upon by the other side was delivered by a Court not competent to deliver it, or was obtained by fraud.1
1. Bansi Lal v. Dhapo, 1902 ILR 24 All 242 (247) (Stanley, C.J. and Brukin, J.).
18.7. Legislative approach in India-Section 13, C.P.C. and section 44, Evidence Act.-
These principles are not confined to judgment of Indian courts; they are equally applicable to foreign judgments. We may mention, in this connection, that section 13 of the Code of Civil Procedure, 1908, to which we have already made a reference1 in our general discussion of the Indian law as to recognition of foreign judgments, specifically mentions fraud when enumerating the circumstances in which a foreign judgment is not conclusive proof.
Similarly, the Indian Evidence Act, in section 44, while providing for the relevancy of certain judgments, expressly2 allows a judgment, even if otherwise relevant, to be attacked on the ground of fraud. This provision of the Evidence Act applies also to judgments mentioned in section 41 of that Act-i.e., certain judgments affecting status. These statutory provisions give sufficient indication of the legislative recognition, in India, of the common law principle that the validity of a judgment can be questioned on the ground of fraud.3
1. See Chapter 4, supra.
2. Section 44, Indian Evidence Act, 1872, quoted in para. 18.17, infra.
3. See paras. 18.8 to 18.10, infra.
18.8. We need not, for the present purpose, discuss the precise boundaries of this principle, or the proper procedure that should be adopted for invoking the jurisdiction of the court. But it is desirable to mention a few points of importance, and we shall discuss these points after dealing with the English law on the subject of fraud.