IDINE BEARY Vs. UMMATHUMMA

JUDGEMENT

(1.) We think that we ought to follow the decisions of this Court in Rangammal v. Venkatachari 18 M. 378 and Kondeti Kama Raw v. Nukamma 31 M. 485 : 4 M.L.T. 331 : 18 M.L.J. 576 which lay down that a decree of Court, though obtained by collusion in order to carry out a scheme of fraud cannot be treated as nullity as between the parties to the decree-not only this, the Court ought not to permit any of the parties to such fraud and collusion to show that the transaction upheld by the decree was not really what it purported to be and does not, therefore, bind hinu We are not prepared to follow some of the observations in the judgment in Barkat-un-nissa v. Fazl Haq 26 A. 272 : A.W.N. (1904) 25 which go to the length of stating that a person, who had merely a hope of succession and no present legal right in the property affected by a collusive decree, is entitled to impeach that decree though he is the heir and representative of one of the parties to the decree. (See also Bigelow on Fraud, page 91.)

(2.) The decree in Original Suit No. 71 of 1002 awarding the plaintiff possession of the plaint property is, therefore, binding on the 3rd defendant, who is the heir of one of the parties to that suit, as held by the learned District Judge.

(3.) The next contention of the appellant (the 3rd defendant) is that the execution of that decree has become barred and that the plaintiff s only remedy as decree-holder under that decree was to execute that decree for possession and not to bring a separate suit for possession treating that decree as a decree for possession and not as a declaratory decree. A decree-holder is not bound to obtain possession through Court if the judgment-debtor gives up possession amicably. A that case the decree is satisfied and there is no cause of action to take out execution proceedings in the suit. If the decree-bolder is dispossessed afterwards, his dispossession gives him a fresh cause of action and it is on that fresh cause of action that this suit was brought.