KAMLA KANT JHA Vs. MUKTINATH JHA

JUDGEMENT

(1.) This is an appeal by the plaintiff, who had brought a suit for a declaration that a certain mortgage decree was null and void. The mortgage-decree was obtained in a suit brought by the defendants against the father of the plaintiff as well as the plaintiff, the plaintiff being represented in that suit through his father as guardian. The allegation in the present suit is that the processes in the earlier suit had been surreptitiously served, and no proper guardian ad litem had been appointed in the case, and defendant 1 party had fraudulently obtained an ex parte decree.

(2.) The suit was dismissed by the Munsif, who tried it. The Munsif not only held that the allegations in the suit had not been established, but also observed while discussing the question of court-fee under Issue No. 4 that: In view of Section 42, Specific Relief Act, the suit cannot be filed merely as a declaratory suit; the J Court cannot make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.

(3.) The plaintiff thereafter filed an appeal.