KONDA BOYAN Vs. PALANISWAMI GOUNDAN

JUDGEMENT

(1.) This appeal arises out of a suit brought for (he cancellation of one of two decrees obtained by the present appellant, the first defendant in the Court of first instance against the plaintiff. The facts which have been found by the Courts below make out a very unusual story. The plaintiff was a convict in jail. He had executed a promissory note in favour of the second defendant, which promissory note had been transferred to the first defendant and a small payment had been made to the first defendant after the assignment. It has been found by the Courts below that the first defendant evolved a very cunning conspiracy whereby his claim against the plaintiff was duplicated in such a way as not to arouse the suspicion of the plaintiff and to prevent him from defending the two suits, one filed upon a forged promissory : note and the other filed upon the genuine promissory note. According; to the findings of fact the first defendant, knowing that the plaintiff was in jail forged what is almost a duplicate of the genuine promissory note, making it of the same date for the same amount with the same attesting witnesses, together with one additional attestor, and transferred at the same time to the same first defendant. It is found that, when the suit on the forged promissory note Ex. G was filed, the summons was served upon the plaintiff in jail on 7 August, 1935 and he, thinking that this was a suit on the genuine promissory note to which he had no defence, took no action to contest the suit. A decree followed on 7 September, 1935. About a fortnight before this decree a second suit, O.S. No. 592 of 1935, was filed on the basis of Ex. A; the genuine promissory note and the summons in the second suit was served on the present plaintiff in jail on 5 September, 1935, that is to say, nearly a month after the previous summons and two days before the decree in the earlier suit. The present plaintiff not having the summons in the previous suit in his custody because of jail rules, was under the impression that the second summons was another summons in the first suit and did not notice the difference in the suit number and the slight difference in the amount. Consequently the plaintiff thought that no purpose would be served by doing anything about this second summons. The second suit was also decreed. It is found by the Courts below that the evidence upon which the second decree was obtained was the genuine evidence of the original promisee : and the attesting witnesses who were quite innocent of any knowledge that a fraud had been played in the earlier suit. The decree in the earlier suit is found to have been obtained by putting forward some person unknown who impersonated the promisee and gave evidence in support of the forged promissory note and also by putting forward another individual as the third attestor to the promissory note whose name and address did not correspond to those of any known person. An attempt was made on behalf of the defence to establish the fact that this third witness to the forged promissory note was an individual who had died shortly before the trial of the present suit. The Courts below have rejected this story and have refused to believe that the person alleged to have died in a place some seventeen miles away was the same person as the witness-who is put forward as having signed this promissory note. According to the findings, therefore, the first defendant got two decrees, one on a forged note supported by two witnesses each of whom must have been personating some one else and the other on the true promissory note supported by three witnesses who were deliberately kept in ignorance of the earlier suit and the present plaintiff was hood winked into not defending either suit by the trick which was played upon him, of filing the suits and issuing notices in rapid succession so that in the circumstances in which he was placed he was led to believe that both notices related to the same suit. Having got these decrees, the first defendant proceeded to. execute the earlier decree and the plaintiff in jail hearing of this execution, still thinking that it was a decree to which he had no answer, instructed his relatives to satisfy the decree. After collecting the amount of this decree the first defendant proceeded then to execute the second decree obtained upon the true note and it was when the plaintiff received notice of execution in respect of a decree, which he thought was a single decree already fully satisfied, that he had inquiries made and learnt of the fraud and lodged the present suit.

(2.) It is not open to me sitting in second appeal to go into the correctness of the findings of fact reached in the Courts below. Both Courts are agreed that the promissory note in the first suit was a forgery, that the person who gave evidence in that suit in the name of the promisee, the second defendant here, was some individual who impersonated the second defendant and that the other witness was some unknown person whose name had been added in order to avoid the complication of having to examine the attestors to the genuine promissory note in both the suits. It has also been found as a fact that the promisee, the second defendant, was speaking the truth when he says that he took only one promissory note from the plaintiff and endorsed only one promissory note to the first defendant and that he never gave evidence in the suit on the other promissory note and that the thumb prints appearing on that promissory note and also on the deposition in the suit on that promissory note are not his thumb prints. Taking all these findings of fact to be true, do they amount to a case of fraud extrinsic to the matters adjudicated upon in the earlier suit so as to justify the cancellation of that decree on the ground that it has been obtained by fraud? It is not necessary to set forth the authorities on the question of the nature of the fraud which must be established in order to set aside a decree. They are summarised in a decision in Chinnayya V/s. Ramanna , which has been followed in many other cases. It is, I think, established that a decree will not be set aside merely on proof that it was obtained by perjury or that the document upon which it is based is a forged document. The questions whether there was perjury or forgery are matters which must be taken to have been decided in the suit itself and even if they have been decided wrongly and a decree has been given as the result of forgery or perjury or both, the Court in the interests of finality will refuse to reopen the matter in a subsequent suit between the same parties. It has been urged by the appellant that the present case is nothing more than a case in which the Court is asked to set aside a decree on the basis of findings that the document on which the suit was based is a forgery and that the evidence with which the decree was obtained is perjured evidence. But it seems to me that the case put forward by the plaintiff goes much further than this. The plaintiff alleges that there has been a deliberate conspiracy of a number of people not only to hoodwink the Court into passing a wrong decree, but also to deceive the defendant as to the nature of the suit and by a trick to prevent him from resisting that suit. It is not merely a case of an allegation of forgery or perjury but of an allegation that a suit on the forged promissory note was deliberately filed in such circumstances that it might be mistaken for the suit on the genuine promissory note and that the suit on the genuine promissory note was filed in such circumstances that the defendant would not be apprised of the trick which had been played upon him in the earlier suit, so that he might canvass the matter in appeal. It is also alleged that the two main witnesses who supported the forged promissory note were both individuals who were impersonating the proper witnesses and that the whole scheme whereby these two suits were conducted was so devised that neither the debtor nor the true witnesses should realise the nature of the trick which was played. Such a case is to my mind a case of fraud much wider than the scope of the matters decided in the actual suit wherein the wrong decree was obtained and one in which a trick was played upon the Court and also upon the debtor and the witnesses to prevent the truth being discovered. In law therefore the decision of the Courts below is in my opinion correct.

(3.) I wish to make it clear in view of the criminal proceedings which are said to be pending that I express no opinion as to the correctness of the findings of the Courts below on the questions of fact upon which it is not open to me to give a contrary decision.