KUMARASAWMY CHETTY Vs. KAMAKSHI AMMAL

JUDGEMENT

(1.) This is a suit for redemption. The plaintiff had instituted a previous suit for the same relief. It was found in that suit that the defendants had obtained a complete title to the property by a sale subsequent to the mortgage sought to be redeemed in the present suit. The plaintiff alleges that the previous decree was obtained by fraud because the decision proceeded on perjured testimony adduced by the defendants. The suit has admittedly been instituted more than three years after the plaintiff became aware of fraud.

(2.) The District Judge has held that this suit is governed by Article 95 of the Limitation Act and that it must be held to be barred by limitation. Article 95 provides a period of three years for a suit to set aside a decree obtained by fraud and the starting point is the date from which the plaintiff has knowledge of the fraud.

(3.) Two arguments have been urged in support of this second appeal. It is contended that the suit is substantially one for redemption, that any decree obtained by fraud is a nullity and may, therefore, be ignored by the plaintiff and that he is not bound to get it set aside. The learned Vakil says that in several reported cases, a decree obtained by fraud is spoken of as a nullity. Admittedly in none of-these cases bad the question of limitation to set aside a decree obtained by fraud to be decided. It is clear to our minds that when there has once been an adjudication by Court between parties disentitling a plaintiff to a certain relief, the same relief cannot be asked for unless the previous decree be got rid of. The decree is binding on both parties so long as it stands and it is not open to either of the parties to ignore it. The Legislature has provided a specific Article for getting a decree obtained by fraud set aside. For purposes of limitation, at any rate, Article 95 must be regarded as conclusive. A decree is not a transaction between parties and it is unnecessary to consider the difference between transactions which are voidable and those that are void. There can be no doubt that a decree by Court is an impediment in the way of a party obtaining a relief inconsistent with it, and this impediment has to be got rid of within the period prescribed by the Legislature. The case cited by Mr. Subramania Sastry, Musammat Jhisvnman Koonwar v. Roop Narain Singh 6 W.R. 165 is in accordance with our view. There it was held that in such a case, the previous decree obtained by fraud has to be set aside. There was no Article in the Act of 1859 especially applicable to such suit and it was, therefore, held that the period of limitation applicable was six years, where the fraud by means of which the decree was obtained was a fraud upon the party and not upon the Court and in this case the fraud being the adducing of perjured testimony, it was a fraud upon the Court. We are entirely unable to apprehend this distinction in the case of decrees. Every fraud, by means of which a decree is procured, is a fraud both upon the Court and upon the party unless the decree be one obtained on a compromise between the parties.