P P S PILLAI Vs. CATHOLIC SYRIAN BANK

JUDGEMENT

(1.) This appeal is by the plaintiff in O. S. 103 of 1989 on the file of the Subordinate Judge's Court of Cochin. The appeal is filed under O.43 R.1(a) of the Code of Civil Procedure. The appeal challenges the 'judgment of the lower appellate court' in A. S. 10 of 1993 filed by the appellant directing a return of that appeal to the appellant. According to the appellant the order passed by the lower appellate court returning the appeal to the appellant came under O.43 R.1(a) of the Code of Civil Procedure which provides for an appeal against an order under R.10 of O.7 of the Code returning a plaint for representation in the proper court. We are not quite certain whether the appeal could be maintained under O.43 R.1(a) of the Code of Civil Procedure in this case. But in any view jurisdiction is available to this court under S.115 of the Code of Civil Procedure to consider whether the lower appellate court has exercised its jurisdiction properly or has acted outside its jurisdiction in returning the Memorandum of Appeal to the appellant. We are therefore not inclined to decide the question whether the appeal filed at the instance of the appellant invoking O.43 R.1(a) of the Code is maintainable or not.

(2.) The appellant, the plaintiff in the suit was the partner of Hi - Seas Fishing Company, a partnership firm. The firm had financial dealings with the first defendant Bank. The Bank filed a suit against the firm and its partners including the present plaintiff for recovery of the amounts due to it. That suit O. S. 23 of 1984 was decreed and the first defendant Bank took out execution of that decree. In that context the plaintiff filed the present suit seeking a declaration that the decree in O. S. 23 of 1984 dated 27.6.1985 on the file of the Subordinate Judge's Court of Cochin was bad and unenforceable being vitiated by fraud and illegal and unsustainable for the grant of a mandatory injunction restraining the first defendant Bank from taking any coercive measures against the plaintiff in pursuance of the decree in O. S. 23 of 1984 for recovery of the amounts due to it from the plaintiff under that decree. According to the plaintiff there was a compromise discussion with the officials of the first defendant Bank regarding the repayment of the loan and even while the discussion was going on the suit O. S. 23 of 1984 was filed by the first defendant seeking recovery of the amounts due under the transactions. The officials of the Bank agreed to sanction a further loan subject to certain conditions and the plaintiff signified his agreement to fulfil those conditions. The plaintiff was assured by the first defendant Bank that the suit O. S. 23 of 1984 would be ended. There arose some disputes regarding the actual amounts due. Meanwhile the plaintiff came to know that the suit O. S. 23 of 1984 filed by the first defendant Bank had ended in a decree. But the first defendant Bank assured the plaintiff that the agreement to be finalised will be implemented and no steps would be taken to execute the decree in O. S. 23 of 1984. Even while the discussions were going on, the plaintiff received notice from the execution court in execution of the decree in O. S. 23 of 1984 which came as a bolt from the blue. According to the plaintiff only when he came to know that he had been taken for a ride. The plaint avers that the decree passed by the Subordinate Judge's Court of Cochin in O. S. 23 of 1984 had been fraudulently obtained by the first defendant Bank and it is bad and unsustainable in law and is liable to be declared as illegal, invalid and unenforceable and is liable to be set aside by the court in the present suit. The passing of the decree in O. S. 23 of 1984 and the appropriation of the fixed deposit available with the Bank and the levying of the execution of the decree in O. S. 23 of 1984 had given rise to the cause of action for the present suit. In its written statement the first defendant Bank denied the plaint averments and denied that any agreement had been arrived at between the parties. It was also denied that any assurance was given about the decreeing of O. S. 23 of 1984 or its execution. The Bank was competent to adjust the amounts available to it towards the liability. According to the first defendant, the plaintiff and other partners sought a settlement of the dispute and there were some negotiations but the plaintiff did not comply with the conditions stipulated by the first defendant Bank and therefore the first defendant Bank could not proceed with the negotiations for settlement and had to proceed with the suit O. S. 23 of 1984 and the execution thereof. There was no compromise either to withdraw the suit or not to execute that decree. The plaintiff could not obtain a decree for a declaration that the decree in O. S. 23 of 1984 was vitiated by fraud or illegality. There was no fraud in the matter of obtaining the decree in O. S. 23 of 1984. The said decree was valid and binding on the parties including the plaintiff and was executable. The plaintiff had no cause of auction to maintain the present suit. The valuation of the suit was not correct. The suit ought to have been valued on the amount of the decree. The suit as framed was not maintainable and it was barred by res judicata.

(3.) The Trial Court raised an issue whether the valuation of the suit was proper and the court fee paid was sufficient. It also raised an issue whether the suit was barred by res judicata. A further issue raised was whether the first defendant Bank had obtained in decree in O. S. 23 of 1984 by playing fraud and whether the said decree was liable to be declared as illegal and unenforceable. It is somewhat surprising that no issue was raised on the maintainability of the suit and on the question whether the plaint disclosed a cause of action for challenging the prior decree to which the plaintiff was eo nominee a party on the ground of fraud which appears to be the basis on which the relief in the plaint is grounded.