DURGAMMA Vs. KECHAMMAYYA

JUDGEMENT

(1.) THE suit was brought by the junior members of an Aliyasanthana family for declaration that a decree obtained against certain other members (including the two managers) is not binding on them. THE plaintiffs were not parties to the former suit. THE Courts below dismissed the suit on the ground that the plaint disclosed no cause of action. THE plaint made various allegations of fraud in connection with the execution of the mortgage deed on which the former suit was laid but made no further specific allegations of fraud in the conduct of the former suit. In the cases relied on by the Courts below [Chinnayya V/s. Ramanna (1913) ILR 38 M 203 : 25 MLJ 228 and Gandi Appa Razu V/s. King-Emperor (1919) ILR 43 M 330 : 38 MLJ 194] the plaintiff in the last suit was a party to the prior decree and was bound by it unless the decree was obtained by fraud. Those cases can apply to the present case only on the footing that the plaintiff, though not a party to the former suit, was represented in it by the 5 defendant therein (Ejamanthi) and by the 3 defendant therein (described as a manager along with the 5th defendant). Now it is clear that if the executants of the mortgage document acted fraudulently and collusively in executing the documents and they were the defendants in the suit and allowed it to proceed ex parte, they were only continuing the original fraud and there can be no new fraud to allege or prove. If the plaintiffs succeed in establishing fraud and collusion in respect of the execution of the document, they have also succeeded in establishing that the non-defending of the former suit is also fraudulent,--the fraud in the suit being merely a continuation of the original fraud. In the present case of the seven executants of the mortgage document six (including the manager) were parties to the former suit (the seventh being dead). In such a case the plaint must be construed as alleging fraud throughout from the execution of the document to the passing of the decree. It would be no doubt different, if the defendants in the former suit were different from the executants of the mortgage. In such a case, the plaintiff ought to make a further allegation about the conduct of the defendants in defending the suit such as that the defendants did not raise an obvious plea open to them or that the executants of the document were not managers at the time-- conduct showing gross negligence equivalent to fraud and collusion. An example of such a case is Yusuf Sahib V/s. Durgi (1907) ILR 30 M 447 : 17 MLJ 260. In the present case the plaint attributes initial fraud to the defendants in the suit at the stage of the execution of the document. I do not think it necessary for the plaintiff to make this redundant allegation that the fraud continued during the conduct of the suit. I think the plaint discloses a cause of action. THE facts ought to be fully ascertained before the suit can be disposed of. If the plaintiffs establish fraud in the execution of the mortgage the decree is equally vitiated by fraud and cannot bind the plaintiffs.

(2.) THE decrees of the Courts below are reversed and the suit remanded for disposal according to law. Costs to abide the result. Court-fee in first appeal and second appeal should be refunded to plaintiffs.