LOGADAPATHI CHINNAYYA Vs. KOTLA RAMANNA

JUDGEMENT

(1.) This is an application made under Rule 8 of the rules applicable to the Godaveri Agency asking us to direct the agent to review his judgment in an appeal by which he confirmed the decree of the Assistant Agent of Bhadrachalam. The facts which led up to the case may be very briefly stated. The appellant who was the defendant in the first Court, instituted O.S. No. 16 of 1906 in that Court for the recovery of a sum of Rs. 643-9-0 from the present plaintiff alleged to be due on dealings between the parties. The present plaintiff filed a written statement alleging that some items in the account sued on had been wrongly debited against him and denying the accuracy and reliability of the accounts put in by the present defendant. The Commissioner was appointed to scrutinise the accounts and to report on the result. The present plaintiff did not put in an appearance on the day fixed for the hearing of the suit. The present defendant was examined as a witness and a decree was passed in his favor for the amount sued for. An appeal was preferred by the present plaintiff to the Agent, but the decree was confirmed by him and this Court also refused to interfere with the appellate decree of the Agent. The present suit has been instituted to set aside the former decree on the ground that it was obtained by fraud and for an injunction to restrain the defendant from executing it. The only allegation of fraud that was insisted on at the hearing was that the defendant, having bought from the plaintiff timber worth Rs. 1026-14-0 did not give him credit for the whole amount but only for Rs. 610-2-0. It will be observed that this allegation is at variance with the defence made by the present plaintiff in O.S. No. 16 in which his allegation was that certain items were wrongly debited against him in the defendant s account. In answer to the present suit, the defendant alleged that the contract for the sale of timber referred to by the plaintiff was made on his behalf by his son in his absence, that it was a part of the agreement that the timber should be of a certain quality, that what was supplied by the plaintiff was not of the quality agreed to, that he, in consequence refused to ratify the sale, and that the plaintiff agreed to an arrangement whereby the defendant sold the timber at Rajahmundry and credited the actual sale proceeds (610-2-0) after deducting the expenses, to the plaintiff s account. The Assistant Agent at first dismissed the suit on the ground that it was barred by the rule of res judicata in consequence of the previous judgment and that the ground alleged by the plaintiff for setting aside the decree did not amount to such fraud as would entitle him to get the previous judgment vacated. On appeal the Agent set aside that judgment on the ground that the plaintiff s allegation in the plaint that the defendant fraudulently kept back certain accounts from examination by the Commissioner was an averment of fraud which would entitle him to have the previous judgment vacated, if he could prove the allegation. After remand, witnesses were examined on both sides. The defendant also put in two documents in support of his case. The Assistant Agent, however, came to the conclusion that the defendant did not succeed in proving the arrangement set up by him. He did not find that any accounts were withheld by the defendant from the Commissioner at, the trial of O.S. No. 16 as alleged in the plaint. Having thus found that the defendant ought to have given credit for Rs. 1026-14-0 and not for Rs. 610-2-0 to the plaintiff, he observed " To this extent, therefore, the entry in defendant s accounts was fraudulent and defendant was not entitled to the decree he obtained in O.S. No. 16 of 1906 against plaintiff on the strength of these accounts." He, therefore, set aside the decree and granted an injunction restraining the defendant from executing it. He concluded with a somewhat unintelligible observation. " As there is good reason to conclude that the litigation in this suit is merely fictitious, each party will bear his own costs throughout." On appeal, the Agent modified the Assistant Agent s judgment by restraining the appellant from executing the decree in O.S. No. 16 only to the extent of Rs. 416-12-0, the amount of the loss which the plaintiff suffered by the incorrect entry in the defendant s accounts. His finding of fraud was expressed in these terms. " As appellants swore to the accuracy of the accounts and they have been proved inaccurate to the extent of Rs. 416-12-0 he must be said to have obtained his original decree fraudulently and respondent was entitled to have it set aside to that extent." The learned Vakil for the petitioner in this Court contends that no fraud such as would entitle the plaintiff to get the decree in O.S. No. 16 set aside has been proved, that all that has been found by the Lower Court is that the decree in O.S. No. 16 was incorrect and that this finding is based on evidence let in by the plaintiff which he might and ought to have let in O.S. No. 16 and which he, by his own carelessness, failed to adduce then. The respondent contends that on the finding of the Lower Courts, the evidence given on oath by the defendant at the trial of O.S. No. 16 was perjured testimony and a decree obtained by perjured evidence may be set aside on the ground of fraud. It is indisputable that a decree may be vacated on the ground that it was obtained by the successful party by fraud. The question is what would amount to fraud which would entitle an unsuccessful litigant to get the decree vacated. He cannot, it is clear, be allowed to get round the rule of res judicata and to prove that the judgment given by the Court was wrong, because it came to a wrong conclusion on the evidence before it. It follows from this that the Court s conclusion both on the construction to be put on the. evidence placed before it and on the inference to be drawn from such evidence as well as on the trustworthiness of the evidence should be regarded as final. If the Court acts erroneously, in forming its judgment on any of these matters, the proper remedy is to invoke the help of the appellate tribunal where an appeal is allowed by law. Another mode of rectifying an erroneous judgment is to apply for review of judgment. The unsuccessful party has, in such an application, an opportunity to adduce any evidence which he failed to adduce at the hearing and which he could not with all proper diligence, have then adduced. It cannot be doubted that, in such cases, he cannot institute a fresh suit to get the judgment vacated. The allegation of fraud for vacating a judgment, therefore, must be extraneous to everything which has been adjudicated on by the Court and not any fraud which has already been dealt with by the Court. The rule allowing the acavting of a judgment for fraud is not an exception to the rule of res judicata but is independent and outside the scope of that principle. In the Duchess of Kingston s case (1776) 2 Smith Leading Cases 11th Edn. 731 at 738. s.c. Sir Wilfeam DeGrey, Lord Chief Justice, observed with regard to the judgment of a competent Court " But if it was a direct and decisive sentence upon the point, and, as it stands to be admitted as conclusive evidence upon the Court, and not to be impeachable from within yet, like all other acts of the highest judicial authority, it is impeachable from without; although it is not permitted to show that the court was mistaken, it may be shown that they were misled. Fraud is an extrinsic collateral act which vitiates the most solemn proceedings of courts of justice. Lord Coke says, " it avoids all judicial acts, ecclesiastical or temporal. (Seethe Duchess of Kingston s case (1776) 2 Smith Leading Cases 11th Edn. 731 at 738. S.C. The effect of this pronouncement is that the correctness of the judgment of a court of competent jurisdiction cannot be impeached but it may be shewn that the value of the judgment assuming it to be correct, is destroyed by the collateral or extrinsic fraud in the obtaining of it. Now the judgment of a Court includes the decision of the questions whether the testimony of any witness is true or false, and whether a document produced in evidence is genuine or not. These questions are not extraneous or collateral to the judgment, but are steps which lead to the final adjudication of the Court, quite as much as its opinion as to the effect of the evidence adduced and the inference to be drawn from it. The parties in a suit are entitled to convince the Court that the evidence given by their respective witnesses is true and prove the contentions they urge. It stands to reason, therefore, that the unsuccessful party cannot be allowed to resort to a fresh suit in order to make a fresh attempt to show that the evidence which was insisted on by his opponent as true was in reality false and to characterise such insistence as fraud in obtaining the judgment. Nor can he be permitted to do so by adducing fresh evidence for the purpose, for it was his duty to place all his evidence before the Court at the former trial. In Patch v. Ward (1867) 3 Ch. A. 203. Lord Cairns L. C. observed. " Now it is necessary to hear in mind what is meant and what must be meant by fraud when it is said that you may impeach a decree signed and enrolled on the ground of fraud. The principle on which a decree may be thus impeached is expressed in the case which is generally referred to on the subject, the Duchess of Kingston s case (1776) 2 Smith Leading Oases 11th Edn. 731 at 738. Then his Lordship cites the passage already quoted above and proceeds to explain it. " The fraud there spoken of must clearly, as it seems to me, be actual fraud such that there is on the part of the persons chargeable with it the Mains Animus the Mala Mens putting itself in motion and acting in order to take the undue advantages of some other person for the purpose of actually and knowingly defrauding him." There can be no undue advantage taken of another by a party in putting any matter before the court to be adjudged by it to be true or false. Both parties are entitled to invoke the judgment of the court and to convince it of the truth of the evidence adduced by them respectively. It is true that parties ought, not to let in false evidence and that it is highly improper and immoral to do so. But it is the function of the court to decide whether the evidence is true or false. If the adducing of false evidence can be spoken as a fraud, then the court in deciding the case, must be taken to have adjudged whether such fraud has been committed or not and what it has once adjudged it cannot be called upon to decide again. The test to be applied is " Is the fraud complained of not something that was included in what has been, already adjudged by the Court but extraneous to it ? If, for instance, a party be prevented by his opponent from conducting his case properly by tricks or mis-representation that would amount to fraud. There may also be fraud upon the Court if, in a proceeding in which party is entitled to get an order without notice to the other side, he procures it by suppressing facts which the law makes it his duty to disclose to the court. But where two- parties fight at arms length, it is the duty of each to question the allegation;; made by the other, and to adduce all available evidence regarding the truth or falsehood of it. Neither of them can neglect this duty and afterwards claim to show that the allegation of his opponent was false. Assuming that he could prove the charges, that would not amount to proving fraud on the part of his opponent because the Court has already decided that his opponent s allegation was true and not false. If he could show that his opponent prevented him by an independent collateral wrongful act, such as by keeping his witnesses in confinement, or by stealing his document from adducing his evidence that Would be an act of fraud which would entitle him to get the court s decree set aside. Fraud must be something which would destroy or seriously impair the value of the judgment by showing that one of the parties was prevented by the other from conducting his litigation fairly or by being deprived of the materials which he was entitled to place before the Court. Black in his article on Judgments in 23 Cyclopdiae of American Law and Procedure includes the following acts in fraud which would vacate a judgment; misrepresentation or tricks practised upon defendant, keeping him away from the trial, preventing him from claiming his rights in the premises or setting up an available defence; acting contrary to an agreement between the parties that the case should not be continued or that defendant s time to answer should be extended or that the action should be dismissed as the result of compromise or settlement or that the case would not be pressed to a judgment. The same learned author says in his treatise on Judgments Vol. I. Section 321-" There may well be cases of fraud in the cause of action, or in the manner of procuring the instrument in suit, where the courts would not withhold relief on motion : as where the complainant was kept in ignorance of the fraud until it was too late for him to plead it in defence, and could not have discovered it by due diligence, or where he was fraudulently prevented from setting it up at the proper time." But a judgment cannot be set aside for fraud on the ground that one of the parties to the suit acted improperly in the conduct of it when such conduct falls within the province of adjudication by the court. The right of a party to insist on his opponent acting with truth and honesty in the conduct of the suit must, in the interests of finality of litigation be taken to be exhausted with the adjudication by the Court. He may for instance compel his opponent to produce all documents relevant to the suit, but it would be dangerous to hold that he may set aside the Court s judgment on the ground of fraud because his opponent did not produce them. He may compel him to give evidence on his behalf, but he must be satisfied with what he can do for this purpose in the course of the suit itself. The law has prescribed means for the punishment of a person who perjures himself or fails to produce documents which he is legally bound to produce, but there would be no end to the litigation, if his improper conduct in these matters can be made the means of setting aside the judgment of the court by a fresh suit. He migh t go on re-agitating the same matter by successive suits to the end of his life and his heirs might then take it up as an inheritance. Moreover he might, after a superior appellate court has adjudicated against him institute a suit in an inferior Court to set aside the superior Court s judgment, as he would be entitled to institute his suit in the lowest Court competent to try it. See Nistarini Dassi v. Nundo Lal Bose (1902) I.L.R. 30 C. 69 and Sarthakram Maiti v. Nundoram Maiti (1906) 11 C.W.N. 579. It must be admitted that there is a conflict in the opinions of eminent judges as to what exactly would constitute fraud in any particular case for the purpose of the vacating of a judgment. But the principle appears to be laid down with clearness in the Duchess of Kingston s case (1776) 2 Smith Leading Cases 11th Edn. 731 at 738. as something which is collateral to the matters adjudged by the Court. In The Bank of Australia v. Nias (1851) 16. Q.B. 717 a decree was obtained in Australia on a contract. The decree holder then brought a suit in England on the judgment of Colonial Court. The defendant pleaded that the alleged contract on which the decree was passed was not true, and that, if true it was obtained and procured by fraud and by the plaintiffs and others in collusion with them. Lord Campbell delivering the judgment of the Court of Queen s Bench disallowed those pleas, holding that they do not amount to an averment of fraud. He observed " The pleas demurred to might have been pleaded, and, if there be any foundation for them, they ought to have been pleaded in the original action. They must now be taken to have been in due manner decided against the defendant. We are bound to take judicial notice that by the law and constitution of this Empire there is an appeal from it (that is the decision of t arise from opening new such sources of litigation, amongst such evils not the least being that it would be certainly to multiply indefinitely the mass of those very perjuries, falsehoods and frauds." Bagallay L. J. did not agree in those observations but reserved for himself an opportunity of fully considering the question of law. In Exparte Alice Cockerell (1878) 4 C.P.D. 9 an application to set aside on the ground of fraud an order obtained by a married woman for permission to convey her interest in the property bequeathed to her was dismissed. Lord Coleridge C.J. observed. " If it can be shown that the order was obtained by fraud or by the suppression of information which it was essential that the Court should have, the Court will undoubtedly set aside the order." The decision cannot be taken to lay down that every party is bound to bring voluntarily before the court all matters that have a material bearing on the questions at issue and that every suppression of information by a litigant would make a decree in his favour liable to be set aside. It does not appear whether any notice was given to the husband before the order was passed. If the wife was entitled to an exparte order, it was her duty to place certain facts before the court, her suppressing them would be a ground for setting the order aside. Generally an exparte order could be recalled on sufficient grounds being shown by the opponent, apart from any question of fraud. Aboulloff v. Oppenheimer and Company (1882) 10 Q.B.D. 295, perhaps marks a departure from the view taken in Flower v. Lloyd (1878) L.R. 10 Ch. D. 327. A suit was filed in England on a judgment obtained in a Russian Court. The judgment was one directing the defendant to return to the plaintiff certain goods belonging to him or in default, that the plaintiff should recover their value. The defendants did not admit that judgment was obtained in Russia by the plaintiff, but alleged that, if it was, it was obtained by the gross fraud of the plaintiff and of her husband because the goods in question were at the time of the suit and of the judgment, in the possession of the plaintiff and of her husband and that fact was concealed from the court. The court held that the plaintiff was entitled to have this plea tried. It is not quite clear how far the judgment of Coleridge C.J. was due to the fact that the suit was on a foreign judgment. Brett L.J. and Baggally L.J. were, apparently, of opinion that the same rule would be applicable whether the action was on the judgment of a court in England or upon a foreign judgment. It will be observed that the question raised in the action in the English Court was whether goods belonging to the plaintiff were really detained by the defendant at the time of the action in the Russian Court, that is whether the claim adjudged by the Russian Court to be a good one was in reality a fraudulent claim, and that no collateral fraud was alleged. Brett L.J. observed: " It has been contended that the same issue ought not to be tried in an English court which was tried in the Russian Courts, but I agree that the question " whether the Russian courts were deceived, never could be an issue in the action tried by them. The question may be raised in the Russian court in order to determine the matters which were in issue-But I think it true to say that the judgment of Knight Bruce V.C. in Barr v. Jackson (1842) 62 E.R. 1028. S.C. 1 Y. & C. Ch. 585 does show that the mere fact of evidence having been brought forward to substantiate or defeat one issue, does not prevent a party from bringing forward the same evidence in a subsequent action between the same parties either to maintain or to defend other issues therein raised. In the present instance, the issue in the Russian courts would be whether the defendants were wrongfully detaining the goods of the plaintiff. The question of fact whether the plaintiff had the goods in her possession at the moment when the fiction was commenced would be a circumstance very material to be considered in order to determine that issue but in the present action upon this paragraph of the defence the only issue is whether the judgment of the Russian courts was obtained by the fraud of the plaintiff successfully perpetrated on those courts. The issues in the two actions are not the same; and therefore the defendants are not estopped from setting up in this action the same evidence that was adduced at the trial of the action in the Russian courts. I wish to say, however " that I am strongly of opinion that in the present action no question can be raised whether the judgment of the Russian courts was erroneous;...the only manner in which that foreign judgment can be rendered ineffective upon the ground of fraud is, by proving that it was obtained by the fraud of the plaintiff who now relies upon it." There can be no doubt that, if the issue in the two actions was different there would be no question of res judicata, although the same evidence might bear upon both the issues. But were the issues different ? The question in the Russian action was whether the plaintiff s goods were wrongfully detained by the defendant. If they were not the plaintiff s claim was fraudulent. The only fraud complained of in the English action was that the claim was fraudulent in that it sought to recover goods which were really in the plaintiff s own possession. That was the identical issue tried by the Russian court. That court decided that the claim was not fraudulent. There was no fraud on the court unless the making of a fraudulent claim is a fraud on the court. Brett L. J. distinguishes Flower v. Lloyd (1878) L.R. 10 Ch. D. 327. on the facts of the case, One distinction drawn is that, in Flower v. Lloyd (1878) L.R. 10 Ch. D. 327. fraud was 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. But is this the right test to be applied ? Is not the proper test whether the fraud complained of was or was not adjudged by the court in the previous suit itself not made out ? Coleridge G. J. appears to have based his judgment, in part at least on the ground that a judgment when impeached was foreign judgment with respect to which it has often been held that it is only prima facie evidence of the fact established by it. (See Ochsen-bein v. Papdier (1878) L.R. 8. Ch. A. 694. This is the view taken of Abouloff v. Oppenheimem 98 U. S. Re p. 93 by the Supreme court of the United States in Vadala v. Lawes (1890) L.R.25 Q.B.D. 310. Abouloff v. Oppenheimer and Co., Ltd. 98 U.S. Rep. 93 was accepted as correct but apparently only on the ground that it was binding on the court. Lindley L. J. observed that there was no distinction between a foreign judgment and a domestic judgment when it was impeached on the ground of fraud. The facts relied on in the case as constituting fraud were not quite similar to those in Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295. Lindley L. J. observed that there were two rules which ought to be borne in mind; first, that a party to an action can impeach a judgment in it for fraud, and secondly, the merits of an action which have been tried cannot be re-opened. The question was which rule was to prevail. He went on and observed " until Abouloff s case (1882) 10 Q.B.D. 295. the difficulty of continuing the two rules and saying what ought to be done where you could not enter into the question of fraud to prove it without re-opening the merits had never come forward for explict decision. That point was raised directly in the case of Abouloft v, Oppenheimer 98 U.S. Rep 93 and it was decided. I cannot fritter away that judgment, and I cannot read the judgments without seeing that they amount to this, that if the fraud upon the foreign court consists in the fact that the plaintiff has induced that court by fraud to come to a wrong conclusion, you can re-open the whole case, " even although you will have in this court to go into the very facts which were investigated and which were in issue in the foreign court. The technical objection that the issue is the same is technically answered by the technical reply that the issue is not the same, because in this court you have to consider whether the foreign court has been imposed upon....The counsel for the plaintiff have pointed out and I think unanswerably, that that is really frittering away, if you look at it from one point of view, the general rule on which they are relying that you cannot retry the merits." Referring to the judgment of Brett L.J. he said that the proposition laid down by his Lordship can only be applicable to cases where there is what is called extraneous fraud, such as imposition on the court itself, but he held that the effect of the judgment in that case was to enable defendant to re-open the judgment by shewing that it was based on false evidence. He observed, referring to the judgment of Baggally L.J, " That is to say, not only where there has been a fraud on the court by what is called extrinsic circumstances, such as the alleged shuffling of the bills of exchange, but where the plaintiff has obtained judgment by the use of perjured evidence, " that is such a fraud as would enable the defendant to impeach the foreign judgment." His Lordship concluded as follows :--" It appears to me, therefore, impossible in the face of that case to differ from the view taken by the Divisional Court. In Baker v. Wordsworth (1890) 67 L.J.Q. B. 301 on the other land, the Court refused to set aside the decree on the ground that it was obtained by perjured evidence Wright J. observed," there is no authority that the mere proof that a verdict and judgment have been obtained by perjury is sufficient to induce the court to set the judgment aside and the expression of the Lords Justices in Flower v. Lloyd (1878) L.R.10 Ch. D. 327 are strongly against such a proposition. In Cole v. Langford (1898) 2. Q.B. 396. when judgmen has been given in default of pleading by the defendant the plaintiff made a motion to set aside the judgment on the ground of fraud. The allegation of fraud was that the judgment was obtained by exhibiting to the court and the jury certain false and counterfeit documents and certain memorandum books containing false and fraudulent entries touching the matters in issue in the action. The judgment was set aside. Ridley J. gave no reasons for doing so. Phillimore J. relied on the case of Priestman v. Thomas (1889) 9 P. D. 210. But that case merely decided that the question whether a will was a forgery or not was resjudicata by a judgment passed in prior proceedings between the parties setting aside on the ground of fraud. The result of the English cases is that until Abouloff v. Oppenheir and Co. (1882) 10 Q.B.D. 295 it was held that the fraud complained of should not be a matter already adjudged by the court, but should be collateral to it. But in that case, it was held, that notwithstanding a prior adjudication that the fraud complained of was not true or not proved a subsequent complaint of the same fraud without any further allegation raised a new issue whether the previous judgment was obtained by fraud. This rule was not acted upon in Baker v. Wordsworth (1890) 67 L.J.Q.B. 301 at any rate, so far as fraud consisting in perjured testimony being put before the court was concerned. In the American Courts although there appears to be some conflict of judicial opinion on the question whether perjured testimony of the party to the litigation or subornation of perjury by him could be regarded as fraud for the purpose of vacating a judgment the Supreme Court held in the case of United States v. Throckmorton 98 United States 93 at 96. that it could not be so regarded. (See 23 Cyclopaedia of American Law and Procedure.) Mr. Justice Miller delivering the opinion of the court, expounded the scope of the rule that a judgment may be set aside for fraud, thus: "In cases where, by reason of something done by the successful party to the suit, there was in fact no adversary trial or decision of the issue in the case, where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent as by keeping him away from court, a false promise of a compromise, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the" plaintiff, where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat, or where the attorney regularly employed corruptly sells out his client s interest to the other side, these and similar cases which show that there has never been a real contest in the trial or hearing of the case are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing." The learned judge has reviewed both the English and the American authorities on the question. Greene v. Greene 2 Gray 361. explained the position thus. The maxim that fraud vitiates every proceeding must be taken like other general maxims to apply to case where proof of fraud is admissible. But when the same matter has been actually tried or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud because the judgment is the highest evidence and cannot be contradicted. In America it has also been held that a decree cannot be set aside for fraud on the ground that the successful party bribed his witness to swear falsely (See Black "Judgments" Vol I Section 323 Note 204 with regard to the bribing of witnesses to swear falsely).

(2.) In Mahommad Golab v. Mahomed Sulliman (1894) I.L.R. 21 C. 612. Sir Comer Petheram C.J. and Ghose J. were of opinion that a decree could not be set aside for fraud on the ground that it was obtained by perjury committed by, or at the instance of the other party. The learned judge followed Flower v. Lloyd (1878) 10 Ch. D. 327.. Petheram C.J. observed " 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 and the decree may be set aside by a court of justice in a separate suit and not only by an application made in the suit, in which the decree was passed, but I am not aware that it has ever been suggested in any decided case, and in my opinion it is not the law, that, because a person against whom a decree has been passed alleged 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, and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favour it was given. To so hold would be to allow defeated litigants to avoid the operation, not only of the law which regulates appeals, but that of that which regulates resjudicata as well. The reasons why this cannot be the case are very clearly stated by James L. J. in the passages I have quoted." Abouloff v. Oppenheimer and Co.(1872) 10 Q.B. D. 295 and Vadala v. Lawes (1890) 25 Q.B.D. 310 do not seem to have been brought to the notice of the learned judges. But the case is valuable as indicating the correct principle of law to be applied in their opinion. The decision has been followed in Abdul Aug Chowdhry, v. Abdul Hafly (1910) 14 C.W.N. 695 and Mosuful Huq v. Surendra Nath Roy (1912) 16. C.W.N. 1002 though a different view was taken in Lakshmichandran Saha v. Nurah (1911) I.L.R. 38 C. 936. In Venkatappa Naih v. Subba Natch (1905) I.L.R. 29 M.179 deliberate perjury committed by the successful party was regarded by Boddam, and Moore JJ. as a ground on which a judgment might be set aside on the authority of Abouloff v. Oppenheimer (1872) 10 Q.B.D. 295 and Vadala v. Lawes (1890) 25 Q.B.D. 310; 67 L. J. Q.B. 301 was not brought to the notice of the court. The correctness of the decision was questioned in Kumarasami Chetti v. Ramahrishna Animal but the point did not arise for decision. There appears to be no decision of the Privy council bearing on this question. In Khayenbrimatha Mahata v. Primonath Boy (1902) I.L.R. 29 C. 395 the Judicial Commitee held that, when an exparte decree is attacked, not merely on the ground of irregularity or insufficiency of the service of summons, but also on the ground that the plaintiff prevented the defendant from defending the suit by getting him declared a lunatic and forcing him by his threats to leave his home and stay elsewhere in secrecy, it could be set aside on the ground of fraud, but there no attempt was made to impeach the Judgment on the ground of any fraud which formed the subject of adjudication by the court. In Tika Ram v. Daulat Ram (1909) I.L.R. 32 A. 145. Mahomed Golab v. Mahomed Sulliam (1894) I.L.R. 21 C. 612 was approved though the case itself was one in which the only substantial complaint was taken to be that summons had not been properly served on him.

(3.) In this state of the authorities, if it were necessary to decide whether a judgment could be set aside for fraud on the ground that the successful party was guilty of deliberate perjury or suborning perjury, we might have to consider whether it is desirable to refer the question to a Full Bench of the Court for an authoritative pronouncement. But, we do not think, that it is necessary in the circumstances of this case to decide that broad question. In the first place the fraud alleged in the plaint was that some items were wrongly debited in the defendant s account against the plaintiff. The judgment of the Lower Courts on the other hand is based on the fact that the defendant failed to prove that there was an agreement between him and the plaintiff that the timber alleged by the defendant to have been sold to the Plaintiff for Rs. 1026-14-0 should be taken as the price for which they were sold by the defendant. Secondly it can hardly be held that the Lower Courts have found that the defendant was guilty of deliberate perjury in obtaining the judgment in O.S. No. 16. They have no doubt, held that the defendant failed to prove the agreement set up by him, considering the evidence adduced for the purpose to be insufficient. But this is considerably short of finding deliberate perjury on his part. As laid down in Patch v. Ward (1867) 3. Ch. A. 203. what the court is to find is " malicious and fraudulent design to mislead the Court." See also Jagun Proshad v. Posum Sahoo (1903) 8 C.W.N. 172. Abouloff v. Oppenhemier (1872) 10 Q.B.D. 295 does not lay down that the mere fact that the evidence formerly believed is found on the strength of the evidence of other witnesses to be unacceptable is sufficient to set aside the judgment on the ground of fraud. Thirdly, the power of the court to set aside a judgment on the ground of fraud is a discretionary one. (See...) Black observes that to entitle a party to have a judgment vacated, he must show a sufficient reason why he did not assert and enforce his rights at the proper time and in the regular manner and that his whole conduct throughout has been free from fraud or any turpitude, and he must free himself from all imputation of laches, for the judgment will not be disturbed if it appears to have been entertained as a result of his own heedlessness, sloth, lack of diligence in protecting his own interests. Here the Assistant Agent found that the Plaintiff was absent at the hearing of O.S. No. 16 without due cause. It would be extremely undesirable to allow such a person to prove under the guise of an allegation of fraud, that the claim of the defendant was unsupportable and the finding of the court wrong. We allow the petition and direct the agent to review his decree in the light of this judgment. The Respondent will pay the petitioner s costs in this court.