MOOLYA Vs. ASU SINGH

JUDGEMENT

(1.) This is a revision against an order of S.D.O. Sikar dated 5.12.56 rejecting the applicants request for review of an order passed by that court on 13.6.1956.

(2.) We have heard the parties and have examined the record as well. The ground urged by the applicant in support of his request for review was that the opposite party practised some deception upon him whereby he could not put up his plea in respect of Khasara No. 3 involved in the dispute; and that he detected this deception only when the opposite party carried out execution proceedings after having obtained a decree in his favour. The trial court held that the ground urged in the review application was not included in the ground laid down by law for review and rejected the application. The learned counsel for the applicant has argued that fraud has been recognised as a valid ground for review and has cited A.I.R. 1929 Cal. 513 in support of this contention. It was observed therein by a single Judge of the Calcutta High Court that "a decree vitiated by fraud may be set a side either by a suit or by review of the judgment and that the latter remedy was the more regular procedure." As against this the learned counsel for thy opposite party has cited A.I.R. 1939 Calcutta 658 which is a Division Bench ruling. The learned Judges after examining the previous case law on the point came to the conclusion that "if a decree is sought to be impeached on the ground of fraud the court has no inherent jurisdication to go into that question and the same should be decided by way of separate suit." It was also observed therein that "the matter for enquiry in such matters is something extraneous to the suit itself and the same kind of investigation is necessary as in a contesting suit. It would certainly be hard on the losing party if he is convicted of fraud by a summary proceeding like this and yet had no remedy by way of an appeal against that finding." A.I.R. 1929 Calcutta 470 and 1936 Rangoon 389 have also been cited in this connection. The principle enunciated above has been reaffirmed in both these decisions. It was observed in the Calcutta case that "if a party desires to have a consent decree amended or vacated upon the ground that it was fraudulently procured his proper course and indeed his only course is to proceed by a separate suit for the purpose. The matter is certainly grave enough to deserve a separate suit. The questions which have to be decided are entirely different from all those at issue in the original suit. The relief sought is very well recognised form of relief appropriate to a suit. The fact that in the present case the decree was not a consent decree would hardly make any difference. The principle laid down in all these decisions is that where a decree is sought to be vitiated on the ground of froud the proper and only remedy available is by way of separate suit and not by way of review which would be unfair to the losing party. We are, therefore, of the opinion that the learned lower court came to a correct conclusion in the case. There is no substance in this revision which is hereby rejected.