(1.) The question of law that arises in this second appeal is whether the fraud for which a judgment can be vacated under section 44 of the Evidence Act, includes mala fide conduct on the part of the defendants in the previous decision ?
(2.) The facts and circumstances giving rise to the question are these: The plaintiff in the suit is one Mangilal. He entered into an agreement of sale with the second defendant Mohd. Ibrahim Kazi, and the 7th defendant Anwar Ahmed, on 11th October, 1963 to purchase the suit land. He paid Rs. 1,000 towards earnest amount. It was represented to the plaintiff that the patta for the suit land stood in the name of the second defendant although the suit land with some other lands had fallen to the share of the 7th defendant and his brothers and that he would, therefore, obtain permission from the revenue authorities sale deed in favour of the plaintiff. Accordingly, the second defendant obtained permission for alienation under section 47 of the Hyderabad Tenancy Act from the Tahsil office, Mudhole, and executed a registered sale deed in favour of the plaintiff on 24th December, 1964 after receiving the balance of consideration. The sale deed was attested by D-7 also. The plaintiff was put in possession of the suit land by D-2 and D-7.
(3.) While so, on 24th August, 1966 Md. Ahmed, the first defendant in the present suit filed O.S. No. 98 of 1966 on the file of the Court if the Munsif-Magistrate, Bhainsa, for petition and separate possession of his ? ..?th share in the suit properties stating that the suit properties are the joint family properties of all the brothers and that D-2 had no right to alienate the suit properties. He prayed for cancellation of the sale deed that was executed in favour of the plaintiff on 24th December, 1964. He impleaded his brothers as D-2 to D-6 and the plaintiff as D-1 to the said suit. D-2 to D-6 remained ex parte and colluded with the plaintiff. Although D-2 executed the sale deed and was also a party to the agreement sale he intentionally did not appear before the Court in O.S. No. 98 of 1966 and explain the circumstances under which he alone executed the sale deed. It is alleged that D-2 was hand in glove with his brother, plaintiff in O.S. No. 98 of 1966. The plaintiff herein as D-1 filed his written statement according to the representations made by D-2, D-7 at the time of purchase of the suit lands. He believed that the two persons would help in establishing the plaintiff's case. But both of them evaded to appear before the Court. That resulted in the decree of the suit if the first defendant upholding that the suit properties are the joint family properties of D-1 to D-6. The decree was affirmed by the first and second appellate Courts. The judgment in the second appeal was rendered on 7th February, 1973. But however, the plaintiff came to know some time thereafter that D-1 and D-3 to D-6 had executed a general power of attorney in favour of D-2 on 19th August, 1952 authorising D-2 to purchase, sell, lease and mortgage the joint family properties. The plaintiff also came to know from the Notification in Urdu daily 'siyasat' dated 11th August, 1969 that the defendants 1 and 3 to 6 have cancelled the general power of attorney of D-2 with effect from that date. Therefore, he filed an application for review in the High Court. But it was dismissed on 28th June, 1973 on the ground that the Court cannot look into fresh facts at the stage of review. The plaintiff then filed the present suit for cancellation of the decree passed in O.S. No. 98 of 1966 alleging that D-2 had been given the general power of attorney by D-1 and D-3 to D-6 on 19th August, 1952, which was in force on 24th December, 1964, and binding on D-1 and D-3 to D-6, that D-1, who was one of the executors of the said general power of attorney, deliberately, suppressed these facts in his plaint in O.S. No. 98 to 1966 and alleged that D-1 had no power to sell the suit land and that his brothers D-2 to D-6 colluded with D-1 and thereby obtained a fraudulent an collusive decree which is liable to be vacated.