AKINA BIBI Vs. MAHAMMAD ALI SHAHA

JUDGEMENT

(1.) The question raised in this rule is whether the opposite party should seek his remedy by a suit or by an application under Section 151, Civil P.C. The relevant facts, are as follows: Petitioner 1 and opposite parties Nos. 1 to 5 instituted a partition suit in the Court of the Munsif, second Court, Dinajpur. The suit was amicably settled and a solenama was filed by the parties and a partition decree was made in terms of the solenama. Subsequently opposite party No. 1 instituted suit No. 107 of 1939 in connexion with the property. He alleged that he had come to learn from enquiries that a suit for partition had been instituted with himself and certain other persons as plaintiffs without their knowledge and that a false solenama was filed without their knowledge, on the basis of which a fraudulent decree was passed. He alleged that the partition suit was instituted without his knowledge and that the names of himself and his co-sharers were falsely inserted in the plaint. Subsequently opposite party No. 1 filed an application under Section 151 of the Code with a prayer that the partition decree might be set aside. The learned Munsif heard argument on the point whether he had jurisdiction to proceed under that section and held in favour of the opposite party and adjourned the matter in order that the parties might produce evidence. The petitioners then obtained this rule. It will be apparent from what I have said that the fraud alleged by the opposite party No. 1 is a fraud on the Court.

(2.) In support of the rule I was asked to say that interference under Section 151, Civil P. C, is unnecessary because, if the allegation made by opposite party No. 1 is true, the partition decree is a nullity. Now that is not an objection which can properly be taken by the petitioners. Whether a decree obtained by fraud is a nullity, or whether it requires to be set aside is a question on which Courts may hold divergent views. Opposite party No. 1 may not be prepared to run the risk of treating the decree as a nullity, or the further risk of finding that his witnesses are all dead when the question may arise in some other suit. He is perfectly entitled to apply to the Court and his allegations must be inquired into. Mr. Gupta admitted that a suit is maintainable. The question for consideration, therefore, is whether cases involving a fraud on the Court are an exception to the ordinary rule that Section 151, Civil P. C, has no application when there is another remedy. I myself am not very clear on what grounds this exception should be made. But at any rate in Peary Choudhury V/s. Sonoory Dass ( 15) 2 AIR 1915 Cal 622, the following observation was made:

(3.) Not only has the Court power, but it is its duty, to set aside a decree obtained by fraud practised upon the Court, when apprised of it.