KOLANDAI Vs. ARASAN SERVAI

JUDGEMENT

(1.) THIS second appeal by the 3rd defendant is against the reversing judgment in A. S. No. 49 of 1981 on the file of the Subordinate Judge, Salem , decreeing the suit O. S. No. 2587 of 1973 on the file of District Munsif , Namakkal for declaration of plaintiff/1st respondents title to suit property and consequential injunction thereon. The plaintiff claimed title by purchase from the second defendant/3rd respondent under Ex. A-1 dated 5. 3. 1969.

(2.) EARLIER, the second respondent/first defendants wife and children brought the suit property to court auction to realise their decree for maintenance against the first defendant and themselves purchased the suit property. Then, they sold it to the second defendant under Ex. A - 5 dated 15. 5. 64. The second defendant in turn, entered into an oral sale agreement with the first defendant for selling the property to the first defendant and subsequently D-1 also filed O. S. No. 299 of 1967 against the 2nd defendant for specific performance of the said agreement. While the said suit was pending, the plaintiff purchased the suit property as stated above. The suit was dismissed on 16. 7. 1970 as borne out by Ex. A-2 judgment. Ex. B-1 is the copy of the suit register extract in relation to O. S. No. 299 of 1967. But, in the appeal filed by the first defendant herein A. S. No. 29 of 1972, the suit was decreed ex part e on 23. 3. 1973 (Ex. A-3 is the judgment ). The plaintiff herein sought in I. A. No. 26 of 1973 to get himself impleaded in the suit, after the said appeal was disposed of on 23. 3. 1973. The said I. A. was dismissed on 4. 12. 1973 (Ex. A-4 is the order ). Pursuant to the specific performance decree as stated above, the sale deed Ex. B-2 dated 18. 2. 1975 was executed by the court on behalf of the second defendant and in favour of the first defendant.

(3.) THEN, let me come to the actual question of collusion. The actual plea of the plaintiff in the plaint is that D-1 and D-2 collusively and fraudulently obtained the decree. In this connection, I may state that the supreme Court has also stated that collusive suit differs from a fraudulent suit. In Nagubai v. Shama Rao , A. I. R. 1956. S. C. 593: 1956 S. C. J. 655:1956 S. C. A. . 959:1956 S. C. C. 321:1956 S. C. R. 451:1956 An. L. T. 1029, where the relevant observation, while referring to Wharton's Law Lexicon ,on the word'collusion', is as follows: "in such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising found on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest. " Despite this divergence in meaning between above said two expressions 'fraudulent'and'collusive', theplaintiff has chosen to plead "fraudulent and collusive' . If the said suit is fraudulent, it cannot be collusive also.