LAKSHMI CHARAN SAHA Vs. NUR ALI

JUDGEMENT

(1.) The defendant No. 1 obtained at Akyab an ex parte decree upon a promissory note said to have been executed by the plaintiff at Akyab. The plaintiff had the decree set aside under Section 108 of the Civil Procedure Code, but could not appear at the hearing of the revived suit so that an ex parte decree was again passed. The result is analogous to a case in which there is an ex parte decree after actual service, of summons. The plaintiff brings the present suit on the allegation that he never went to Akyab, never received any money there from the defendant and never executed any promissory note in his favour, so that the decree was based on no cause of action and fraudulent, and praying for declarations to that effect. The lower Courts have held that the plaintiff never went to Akyab, never received any money from the defendant No. 1 there, and never executed the promissory note so that the whole proceeding was fraudulent. It has been argued in second appeal before us that the lower Court had no jurisdiction to go into the merits of the suit in the Akyab Court, and in any case the only matter that could be investigated was whether the plaintiff had by the action of the defendant No. 1 been prevented from placing his case properly before the Akyab Court, and, secondly, that no decree should have been passed without calling for the promissory note impeached as a forgery.

(2.) In support of the first contention, the learned vakil for the appellant has relied upon the cases of Mahomed Golab v. Mahomed Sulliman (1894) I.L.R. 21 Calc. 612 and Abdul Huq Chowdhry v. Abdul Hafez (1910) 14 C.W.N. 695. In the first case, it appears to have been laid down by Sir Comer Petheram C.J. "that where a decree has been obtained by a fraud practised upon the other side by which he was prevented from placing his case before the tribunal, which was called upon to adjudicate upon it in the way most to his advantage, the decree is not binding upon him,...and...it is not the law that because a person against whom a decree has been passed alleges that it is wrong and that it was obtained by perjury committed by, or at the instance of, the other party, (which is, of course, fraud of the worst kind), that he can obtain a re-hearing of the questions in dispute in a fresh action by merely changing the form in which he places it before the Court." Mr. Justice Ghose agreed in the result on the ground that no fraud had been proved. The second case followed the above opinion. I think the proposition of law as laid down in these cases has the effect of restricting within too narrow limits the remedy of a man against whom a fraudulent decree has been obtained. It becomes necessary, therefore, to examine the authorities upon which those cases are based with some care. I may say at the outset that the opinion by Sir Comer Petheram, C.J. in the first case is an obiter dictum, as there was no fraud found and Mr. Justice Ghose did not join in the said view, but rested his judgment simply on the ground that no fraud has been proved: that opinion again was based on an obiter dictum of Lords Justices James and Thesiger in the case of Flower v. Lloyd (1879) L.R. 10 Ch. D. 327, Lord Justice Baggallay reserved his opinion as the point did not arise, and said "I should much regret to feel myself compelled to hold that the Court had no power to deprive the successful, but fraudulent party, of the advantages to be derived from what i.e. had so obtained by a fraud." In the case of Abouloff v. Oppenheimer & Co. (1882) L.R. 10 Q.B.D. 295, 307. Lord Justice Brett said, "With one exception none of the authorities cited before us in the least militate against our decision; they all seem to show that the fraud of a party to a suit is an extrinsic and collateral act which will vitiate the judgment. That exception is to be found in the doubts expressed by James L.J. with the assent of Thesiger L.J. in Flower v. Lloyd (1879) L.R. 10 Ch. D. 327, it seems to me that the fraud alleged in that action was probably fraud on the part of certain servants of the party and not fraud "brought home to the party himself. Moreover, it was, as I understand, fraud committed not before the Court itself at the trial of the action, but previously to the case being brought to a hearing before the Court. If it is to be taken that the doubts of James and Thesiger L.J. related to a fraud of a party to the action committed before the Court itself for the purpose of deceiving the Court, I cannot after having heard the present argument agree with the doubts expressed by them." In the case of Priestman v. Thomas (1879) L.R. 10 Ch. D. 327, we find that a probate having been granted on a forged will after compromiser a suit was, brought in the Chancery Division for, a declaration that the will was a forgery and the compromise fraudulent. The Court held the will to be a forgery and set aside the compromise. In the case of Vadala v. Lawes (1890) L.R. 25 Q.B.D. 310, 316 the plaintiff having recovered a decree in Italy upon certain Bills of exchange brought a suit in England upon the Italian judgment. The defence was that the judgment of the Italian Court was obtained by fraud, some forged bills were substituted for some genuine ones and that the plaintiff had fraudulently represented the bills to be commercial bills, when he knew they were not, and he thereby imposed on the Courts and obtained his judgment. At page 316 of the Report, Lord Lindley is reported to have said "But we come now to another and more difficult question, and that is, whether this defence can be gone into at all. There are two rules relating to these matters which have to be borne in mind, and the joint operation of which gives rise to the difficulty, first of all, there is the rule which is perfectly well established and well-known, that a party to an action can impeach the judgment in it for fraud. Whether it is the judgment of an English Court or of a foreign Court does not matter; using general language, that is a general proposition unconditional and undisputed. Another general proposition which, speaking in equally general language, is perfectly well settled, is, that when you bring an action on a foreign judgment, you cannot go into the merits which have been tried in the foreign Court. But you have to combine these two rules and apply them in the case where you cannot go into the alleged fraud without going into the merits." Their Lordships then discussed the case of Abouloff v. Oppenheimer & Co. (1882) 10 Q.B.D. 295, and followed it. In the case of Cole v. Langford [1898] 2 Q.B. 36, the plaintiff brought a suit for setting aside a decree obtained against him by the defendant by fraud in exhibiting to the Court and jury certain false and counterfeit documents and memorandum books containing false and fraudulent entries touching the matters in issue in the action. The defendant did not appear and the Court gave a decree. Mr. Justice Phillimore said "There are several cases since Flower v. Lloyd (1879) L.R. 10 Ch. D. 327, in which this jurisdiction has been exercised notably in the case of Priestman v. Thomas (1884) L.R. 9 P.D. 210." As the autho-B rity on which the judgment of Sir Corner Fetheram C.J. was based has never been recognised as an authority in England, I do not think I am bound by it or by any case based upon it. On the other hand, the case of Radha Raman Shaha v. Prannath Roy (1901) I.L.R. 28 Calc. 475 : 5 C.W.N. 757 is a sufficient authority for holding that such a suit as the present does lie. It is quite clear from the cases quoted above that the jurisdiction of the Court trying a suit of this kind is not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court can and must rip up the whole matter for determining whether there has been fraud in the procurement of the decree. As the lower Courts have found that the plaintiff never went to Akyab, never received money from the defendant, it follows that he never executed the promissory note which was alleged to have been executed at Akyab for money received at Akyab. The production of the promissory note was, therefore, immaterial. If the appellant had been advised that the promissory note would advance his case, he would have called for it, but he did not. And I do not think any useful purpose will be served by our remanding the case.

(3.) The learned vakil for the respondent also supported the decree of the lower Appellate Court on the ground that on the findings, the Akyab Court had no jurisdiction to try the case. Upon the view that I take of the law, however; on the main point I do not think it necessary to go into this question. The appeal is, therefore, dismissed with costs. N.R. Chatterjea J.