DAN DAYAL Vs. MUNNA LAL

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff claimed that it might be declared that a decree obtained by the defendant No. 1 in the Calcutta High Court was fraudulent and false, and that it might be set aside as against the plaintiff, and his father and an injunction to restrain the said defendant from taking out execution of the decree and directing him to release attached property from attachment.

(2.) The court below held that the cause of action did not arise in Mainpuri and accordingly returned the plaint for presentation in the proper court. The plaintiff comes here complaining of this order. The foundation of the plaintiff s case is the granting of a decree is Calcutta, which is said to have been obtained by fraud-It appears that the decree was obtained in the year 1903, in the court of first instance and was confirmed by the appellate court-in the year 1908. The present suit was not instituted until the year 1911. It is stated that the allegation of the plaintiff is that his father, who was named as one of several defendants, was never served throughout the litigation in Calcutta.

(3.) Speaking generally, it seems to me that where a decree has been improperly obtained the proper and most convenient course is for the party aggrieved to go to the court that granted the decree and get it set aside by that court, I do not wish to be take when making this remark, as expressing an opinion that a suit to set aside a decree will not lie. Steps to set aside a decree, whatever the procedure, should be taken the moment a party has notice that the decree has been made. The question which we have to decide, however, in the present appeal is the application of Section 20 of the Code of Civil Procedure to the facts of the present case. Section 20 provides for the court in which the suit must be instituted. It is as follows; Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction (a) The defendant or each of the defendants, where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; (b) Any of the defendants, where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain as aforesaid, acquiesce in such institution; or (c) The cause of action wholly or in part arises.